3RD AMITY JAIPUR NATIONAL MOOT COURT COMPETITION 2015 Manish Mathur and Team-4

3RD AMITY JAIPUR NATIONAL MOOT COURT COMPETITION 2015
TEAM CODE: ALSJ049
THE HON’BLE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA]
SPECIAL LEAVE PETITION (CRIMINAL) No. ______ / 2015
IN THE MATTER OF
State of Rajasthan.....................................................................................................Appellant
Vs.
Bhawarlal and Ors...............................................................................................Respondents
AND
Bhawarlal and Ors.................................................................................................... Appellant
Vs.
State of Rajasthan.................................................................................................. Respondent
ON THE SUBMISSION BEFORE THE COURT ON 20/9/2015
WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT-BHAWARLAL
MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 1

TABLE OF CONTENTS
S. No. DELINEATIONS PAGE

1 INDEX OF AUTHORITIES 3
2 STATEMENT OF JURISDICTION 7
3 STATEMENT OF FACTS 8
4 STATEMENT OF ISSUES 10
5 SUMMARY OF ARGUMENTS 11
6 ARGUMENTS ADVANCED 12
7 PRAYER 33

INDEX OF AUTHORITIES
I. LIST OF JUDICIAL PRECEDENTS CITED
S. No. JUDICIAL PRECEDENT CITATION

1 Abbas Ahmad Choudhary vs. State of Assam (2010) 12 SCC 115
2 Abdul Mannan and Ors. vs. State of West Bengal AIR 1996 SC 905
3 Alamelu & Anr. vs. State AIR 2011 SC 715
4 Amit vs. State of Uttar Pradesh (2012) 4 SCC 107
5 Arnit Das vs. State of Bihar AIR 2001 SC 2261
6 Bachan Singh vs. State of Punjab AIR 1980 SC 898
7 Balasaheb vs. State of Maharastra 1994 Cri LJ 3044 (Bom)
8 Basdev vs. State of Pepsu AIR 1956 SC 488
9 Bhan Singh vs. State of Rajasthan 1984 Cri LJ
10 Bhoop Ram vs. State of Uttar Pradesh AIR 1989 SC 1329
11 Bishnu Prasad Sinha and Anr. vs. State of Assam AIR 2007 SC 848
12 Chhote Lal vs. State of M.P (2011) 8 SCR 239
13 Dalbir Singh vs. State of Punjab (1979) 3 SCC 745
14 Dhananjoy Chatterjee alias Dhana vs. State of (1994) 2 SCC 220
West Bengal
15 Dilmohammad alias Muslim Sheikh vs. Emperor AIR 1942 Pat 420
16 Emperor vs. Qudrat AIR 1939 All 708
17 Gopal Vinayak Godse vs. State of Maharastra AIR 1961
18 Hari Singh vs. Sukhbir Singh (1988) 4 SCC 551
19 Hazara Singh vs. Raj Kumar AIR 2013 SC 3273
20 In Re: Macherla Balaswamy of Guntur AIR 1953 Mad 827
21 In Re: Suruttayyan alias Vayyapuri Goundan AIR 1954 Mad 523

22 Khem Chand vs. State of Delhi ILR (2008) Supp.(5) Delhi 92
23 Macchi Singh and Ors. vs. State of Punjab AIR 1983 SC 957
24 Maru Ram vs. Union of India (1981) 1 SCC 107
25 Modi Ram and Lala vs. The State of M.P AIR 1972 SC 2438
26 Mohd. Giasudden vs. State of A.P (1977) 3 SCC 287 19
27 Mohinder Singh vs. State of Punjab (2013) 3 SCC 294
28 Narendrasingh Bhalsingh vs. State of Madhya 1996 MPLJ (41)

Pradesh
29 Nirbhaya (State Through Reference vs. Ram IV (2014) CCR 174 (Del.)
Singh & Ors.)
30 Palijhan vs. State of U.P. 1960 SCR (1) 646
31 Pawan vs. State of Uttaranchal (2009) 15 SCC 259
32 Phul Singh vs. State of Harayana AIR 1980 SC 249
33 Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551
34 Public Prosecutor vs. Budipiti Devasikamani AIR 1928 Mad 196
35 Rachhpal Singh & Anr. vs. State of Punjab (2002) 6 SCC 462
36 Rahul vs. State of Maharastra (2005) 10 SCC 322
37 Rajendra Prasad vs. State of U.P AIR 1979 SC 916
38 Rajesh Kumar vs. State through govt. of NCT (2011) 13 SCC 706
Delhi
39 Ram Tahal and Ors. vs. The State of U.P AIR 1972 SC 254
40 Rameshbhai Chandubhai Rathod vs. State of AIR 2011 SC 803
Gujarat
41 S vs. Shilubane [2005] JOL 15671 (T)
42 Sadananda Mondal vs. State of West Bengal 2013 (10) SCALE 125
43 Sangeet and Anr. vs. State of Haryana AIR 2013 SC 447
44 Sheikh Falsar vs. State 2006 Cri LJ 1105
45 Shiv Mohan Singh vs. State of Delhi AIR 1977 SC 949
46 Sirajkhan Bauddinkhan vs. State of Gujarat 1994 Cri LJ 1502
47 State of Madhya Pradesh vs. Bablu AIR 2015 SC 102
48 State of Madhya Pradesh vs. Surendra Singh AIR 2015 SC 398
49 State of Madhya Pradesh vs. Dayal Sahu AIR 2005 SC 3570
50 State of Uttar Pradesh vs. Sanjay Kumar (2012) 8 SCC 537
51 State vs. Inayathusen Mahmadmiya 1996 Cri LJ 3225 (Guj)
52 Sudhu Kumbharv vs. The King AIR 1951 Ori 354
53 The State of Orissa vs. Mutuka Barik 45 (1978) CLT 604

54 Umesh Chandra vs. State of Rajasthan (1982) 2 SCC 202
55 Vallabhaneni Venkateshwara Rao vs. State of (2009) 6 SCC 484
Andhra Pradesh
56 Vide Bhaikon@Bakul Borah vs. State of Assam 2013 (2) ACR 1511
57 Vimal Chadha vs. Vikas Choudhary and Anr (2008) 15 SCC 216
II. LIST OF STATUES REFERRED
1. CODE OF CRIMINAL PROCEDURE, 1973 (ACT 2 OF 1974)

2. THE CONSTITUTION OF INDIA, 1950
3. THE INDIAN EVIDENCE ACT, 1872 (ACT 1 OF 1872)
4. THE INDIAN PENAL CODE, 1860 (ACT 45 OF 1860)
5. THE JUVENILE JUSTICE ACT, 2000
III. BOOKS REFERRED
th
1. K.D. Gaur, A Textbook on the Indian Penal Code, 6 Edition, 2012, Universal Law
Publishing Co. Pvt. Ltd.
th
2. Ratanlal & Dhirajlal, Law of Crimes, Vol. 1&2, 25 Edition, 2004, Bharat Law House,
New Delhi.
th
3. PSA Pillai’s Criminal Law, Dr. K.I. Vibhute, 12 Edition, 2014, Lexis Nexis
IV. WEBSITES REFERRED
1. www.manupatra.com
2. www.scconline.com
3. www.prsindia.org
V. LIST OF ABBREVIATION
ABBREVIATION ACTUAL TERM

& And
A.P. Andhra Pradesh
CrPC Criminal Procedure Code
F.I.R First Information Report
HC High Court
I.O. Investigating Officer
IPC Indian Penal Code
Ld. Learned

M.P. Madhya Pradesh

N.C.T National Capital Territory
P.W. Prosecution Witness
Para. Paragraph
SC Supreme Court
SCC Supreme Court Cases
U/s Under Section(s)
vs. Versus
Hon’ble Honorable
U.P. Uttar Pradesh

STATEMENT OF JURISDICTION
The appellants have approached the Hon’ble Supreme Court of India under Article 136 of
the Constitution of India. Leave has been granted by this Hon’ble court and the matter has
now been listed for arguments.
The provision under which the appellant has approached this Hon’ble Court and to which the
respondent humbly submits, is read herein under as:-
Article 136 of the Constitution of India, 1950:
“(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.”

STATEMENT OF FACTS
TH
I. THE INCIDENT—20 DECEMBER 2014
1. The prosecutrix was a student living in a women’s hostel in Jaipur. As the

complainant came out of her room in the hostel on the front lawn of the hostel, the
main accused, Bhawarlal, the designated night watchman for the hostel, and
Tribhuvan, a spoilt multimillionaire student, kidnapped her at about 11.00 P.M. and
forcibly carried her in
Bhawarlal’s room behind the hostel, a lonely place, where 2 students namely, Mohan and
Sohan were drinking heavy liquor and were heavily intoxicated and raped her one by one.
2. The winter vacation had commenced on the same day i.e. 20/12/2014 and hardly 3-4
students were in the Hostel that had a capacity of 100 students. The lady Warden had
also left
for her home and no other hostel employee was there. The complainant’s mouth and body
was tied with cloth and Bhawarlal had a knife in his hands. She was given some intoxicant
with drugs, forcibly put on the mattress and was raped one by one by Tribhuwan, Mohan,
Sohan and Bhawarlal. After the gang rape, in a naked and unconscious condition, the
complainant was thrown outside the backside of the boundary wall of the hostel at about 4.00
A.M. and at around 5.00 A.M. she was spotted by P.W. 2 and P.W. 3
II. REGISTRATION OF FIR
3. The complainant was carried to the nearest police station where FIR was lodged and
case under section 376D and 364A of the Indian Penal Code was registered against
the four accused persons.
III. JUDGMENT BY SESSIONS COURT
4. The Sessions Judge, Jaipur, convicted the accused after holding that the prosecution
has proved its case fully based upon the witnesses, the testimony and the report
provided by the medical jurist and material ceased. The accused were convicted as
follows:-
a) Shri Bhawarlal, night watchman to undergo rigorous imprisonment for life;

b) Shri Mohan, student, to undergo Rigorous imprisonment for 10 years;
c) Shri Sohan, student, to undergo Simple imprisonment for a period of 7 years;
d) Shri Tribhuvan was declared a minor.
e) Damages were awarded to the victim of Rs. 10 lacs by each convict and on failure to
undergo punishment for an additional year.

5. Aggrieved by the said judgement, the complainant lodged an appeal with the Hon’ble
High Court.
IV. JUDGMENT BY HIGH COURT
6. The Hon'ble High Court said that the learned Sessions Court was justified in coming
to the conclusion that the four accused have committed the heinous act, which could
have lifelong effect on the body and mind of the victim. However, the Hon'ble High
Court taking a lenient view of the matter reduced the sentence awarded by the
Sessions Court to the following period:-
a) Shri Bhawarlal to undergo Rigorous imprisonment of 10 years;

b) Shri Mohan to undergo Simple imprisonment for 5 years;
c) Shri Sohan to the period already undergone by the accused; i.e. 2 years and 5 months.
d) Damages were reduced to Rs 50,000/-.
7. The appeal of the accused was allowed in above terms and appeal of the complainant
to enhance sentence and damages was dismissed, being bereft of any substance.
V. APPEAL TO THE HON’BLE SUPREME COURT
8. Being aggrieved by the aforesaid orders, the complainant as well as the accused persons
Bhwarlal, Mohan and Sohan filed an appeal before the Hon’ble Supreme Court. The Hon’ble
Supreme Court has issued notices confining to the issues raised in the appeals. The Hon’ble
Supreme Court also issued notice as to why the sentence awarded by the High Court to the
three accused respondents be not restored to that of the sentence awarded by the Sessions
Court and why the accused Bhawarlal not to undergo life imprisonment for whole of the
convict’s life. The Hon’ble Notice was also issued to Tribhuvan, who had become major on
the date of the impugned orders of the trial Court & High Court.

STATEMENT OF ISSUES
1. WHETHER THE QUANTUM OF SENTENCE AWARDED TO THE

ACCUSED IS JUSTIFIED?
2. WHETHER BHAWARLAL SHOULD UNDERGO IMPRISIONMENT FOR

THE WHOLE OF HIS NATURAL LIFE?
3. WHETHER TRIBHUVAN NEEDS TO BE DEALT WITH, UNDER THE

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2000?
4. WHETHER ADEQUATE COMPENSATION HAS BEEN GRANTED TO THE

VICTIM?

SUMMARY OF ARGUMENTS

9. It is humbly submitted before this Hon’ble Court that the punishment awarded by the
Hon’ble High Court of Rajasthan is not coherent with prudence and therefore, it is
improper. The Hon’ble High Court has erred in awarding punishment as it has not taken
proper
cognizance of the mitigating and extenuating circumstances that have existed during the
commission of the offence in account of the three accused and the quantum of sentence
awarded to all the accused must be reduced so that it is proportional to the offence and
the circumstances of the commission of the offence.
2. WHETHER BHAWARLAL SHOULD UNDERGO IMPRISONMENT FOR
THE WHOLE OF HIS NATURAL LIFE?
10. The counsel humbly submits before this Hon’ble Court that conduct of the accused
Bhawarlal does not warrant life imprisonment for the whole of his natural life. The primary
purpose of awarding any quantum of punishment is to ensure that full and fair justice has
been dispensed and in this instant case Bhawarlal does not deserve on account of the
circumstances of this instant case and on account of prospects of reformation and
rehabilitation back into the society.
2000?
11. The counsel humbly submits before this Hon’ble Court that the accused Tribhuvan
must be dealt with, under the Juvenile Justice (Care and Protection of Children) Act,
2000. The appeal challenging the age of Tribhuvan has no substance and therefore, do
not hold any ground. The relevant date for determination of the age of the accused is
when the offence was commissioned and not when the accused juvenile delinquent is
brought before the competent authorities.
4. WHETHER ADEQUATE COMPENSATION HAS BEEN GRANTED TO
THE VICTIM?
12. The counsel humbly submits before this Hon’ble Court that the quantum of compensation
must be calculated whilst premising the formulation on the extenuating circumstances and
the ability to pay premised on the financial status the accused without trivialising the offence
committed herein.
ARGUMENTS ADVANCED

I. MITIGATING AND EXTENUATING CIRCUMSTANCES THAT PERSISTED

WHILSTS THE COMMISSION OF THE OFFENCE
13. It is humbly submitted before this Hon’ble Court that the punishment awarded by the
Hon’ble High Court of Rajasthan is not coherent with prudence and therefore, it is improper.
The Hon’ble High Court has erred in awarding punishment as it has not taken proper
cognizance of the mitigating and extenuating circumstances that have existed during the
commission of the offence in account of the three accused and the quantum of sentence
awarded to all the accused must be reduced so that it is proportional to the offence and the
circumstances of the commission of the offence.
14. In the case of Hazara Singh v. Raj Kumar1, this Hon’ble Court has observed that it is
the duty of the courts to consider all the relevant factors to impose an appropriate
sentence. The legislature has bestowed upon the judiciary this enormous discretion in
the sentencing policy, which must be exercised with utmost care and caution. The
punishment awarded should be directly proportionate to the nature and the magnitude
of the offence. The benchmark of proportionate sentencing can assist the Judges in
arriving at a fair and impartial verdict.
15. Furthermore, to substantiate argument of reduction of punitive sentence mandated by this

2
Hon’ble Court in the cases of State of Madhya Pradesh v. Bablu and State of Madhya
3
Pradesh v. Surendra Singh , held that one of the prime objectives of criminal law is the
imposition of adequate, just, proportionate punishment which commensurate with gravity,
nature of crime and the manner in which the offence is committed.
16. Mitigating and extenuating circumstances do not eliminate culpability of the accused
but the counsel humbly submits that it is imperative to take into account such
circumstances while dispensing punitive measures as they distinguish between the
extent of culpability and the roles of the accused and provide aid in the
comprehension of the totality of circumstances of the commission of the offence.
1 AIR 2013 SC 3273

2 AIR 2015 SC 102
3 AIR 2015 SC 398

17. In Bachan Singh v. State of Punjab4, this Hon’ble Court has observed that a balance-
sheet of aggravating and mitigating circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full weightage.
5
18. Furthermore, in Macchi Singh and Ors. vs. State of Punjab , it was observed by this
Hon’ble Court that maximum weightage must be accorded to mitigating circumstances which
speak in favour of the offender whilst dispensing punitive measures.
19. In this instant case, once the facts have been critically and analytically scrutinised,
certain mitigating nuances are brought to light which are as follows:-
1.1 THE OFFENCE WAS COMMITTED UNDER THE INFLUENCE OF HEAVY

INTOXICATION
20. Whilst the commission of the crime, it was found that the four accused persons had
consumed heavy liquor voluntarily and were intoxicated to the extent that they were
incapable of judgement and reason and due to that they were unable to comprehend
the nature of the act.
21. Section 86 of the Indian Penal Code, 1860 holds that--“In cases where an act done is
not an offence unless done with a particular knowledge or intent, a person who does
the act in the state of intoxication shall be liable to dealt with as if he had the same
knowledge as he would have had if he had not been intoxicated, unless the thing
which intoxicated him was
administered to him without his knowledge or against his will”
22. A careful reading of section 86 of IPC reveals that an act done under the influence of
self-induced intoxication amounts to an offence even if the doer, by reason of
intoxication, is incapable of knowing the nature of the act of the act or that what he is
doing is either wrong or is in contravention of the law of the land.
23. However, section 86 deals with immunity of a self intoxicated person when he
commits an offence requiring “particular knowledge or intention” as a definitional
ingredient on the part of an accused. It provided that if an offence requiring such a
knowledge or intention is committed by a self induced intoxicated person, only
knowledge of the offence on his part will be assumed and not intention.
4 AIR 1980 SC 898

5 AIR 1983 SC 957

24. Thus, the presumption of knowledge alone is provided for and not presumption of
intention. To substantiate the said mitigating circumstance, this Hon’ble court, in the
case of
Basdev v. State of Pepsu6, had opined that--“So far as knowledge is concerned the court
must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far
as intent or intention is concerned...Was the man beside his mind altogether for the time
being? If so, it would not be possible to fix him with the requisite intention.”
7
25. Furthermore, in the case of Public Prosecutor v. Budipiti Devasikamani , the Hon’ble
High Court of Madras held that--“...though ordinarily intention is to inferred from
knowledge, there must be cases where intent must be found as a fact and cannot be assumed ,
in which cases of voluntary drunkenness may be relied on to show that the required intention
is absent...”
26. In addition to the aforesaid case, in the case of Dil Mohammad8, the Hon’ble High
Court of Patna has held that there may be cases in which a particular knowledge is an
ingredient, and there may be other cases in which a particular intent is an ingredient,
the two are not necessarily and always identical. Section 86 does not say that the
accused shall be liable to be dealt with as if the accused had the same intention as
might have been presumed if he had not been intoxicated.
9
27. Furthermore, in the case of In Re: Suruttayyan alias Vayyapuri Goundan , the Hon’ble
High Court of Madras had held that--“This section makes it clear that in cases where
knowledge is an essential element of an offence voluntary drunkenness makes no difference
to the knowledge of the consequences of his acts with which a man is credited. But a similar
presumption is not made under this section when a particular intent is of the essence of the
crime”
28. In addition to that, in the case of Sudhu Kumbharv vs. The King10, the Hon’ble High
Court of Orissa, while agreeing with several decisions of privy council, held
that--“The result
is that though by virtue of the said section a Ct. May presume guilty knowledge, the Ct.
cannot presume guilty intention in judging the nature of the offence committed by a drunken
person”
29. The same was reiterated in the case of The State of Orissa vs. Mutuka Barik11.
6 AIR 1956 SC 488

7 AIR 1928 Mad 196
8 AIR 1942 Pat 420
9 AIR 1954 Mad 523
10 AIR 1951 Ori 354
11 45 (1978) CLT 604
30. Therefore, due to the extreme extent of inebriation self-induced by consuming heavy
liquor, accused Mohan and Sohan were not the masters 12 of their own minds and were unable
to comprehend the totality of circumstances and ended up being involved in the commission
of the act without the intention of doing so in the first place and hence such a circumstance is
mitigating in nature and it is humbly submitted that the punitive quantum is reduced in its
13
purview as it was done in the case of Sheikh Falsar vs. State and in the case of Sirajkhan
Bauddinkhan vs. State of Gujarat14.
1.2 ACT OF CRIME WAS PLANNED BY TRIBHUVAN AND NOT OTHERS

31. The counsel humbly submits that it is of imperative importance to take into account
the gravity of the implication of the confession of Sohan and Bhawarlal. Both the
accused have explicitly stated and placed emphasis on the fact that they were
persuaded to commit forcible rape on prosecutrix.
32. The implication of the confession is that prior to persuasion by Tribhuvan, Sohan and
Bhawarlal both, had neither the motive nor the intention to commit rape on
prosecutrix. The concoction of the wrong sprung wholly from the mental faculties of
Tribhuvan and the accused had no part to play in it whatsoever. There was no prior
concert or a pre-arranged plan between the accused and Tribhvan to do such an act
and they were entirely persuaded by Tribhuvan and brought in the ambit to do so.
15
33. In the case of Ram Tahal and Ors. Vs. The State of U.P , this Hon’ble Court opined that
the totality of the circumstances; before, during and after the crime must be taken into
account while dispensing quantum of sentence--“...the totality of the circumstances must be
taken into consideration in arriving at any conclusion...”
34. Therefore, the implication of the statements brought forth by Sohan and Bhawarlal
form an inextricable aspect of the totality of circumstances that must be taken into
consideration to avoid grave miscarriage of justice.
1.3 BHAWARLAL, MOHAN AND SOHAN DID NOT ABSCOND
12 In Re: Macherla Balaswamy of Guntur; AIR 1953 Mad 827

13 2006 Cri LJ 1105
14 1994 Cri LJ 1502
15 AIR 1972 SC 254

35. The counsel humbly submits that the conduct of the accused after the commission of
the act was in coherence with acceptability of the culpability and liability of the
criminal act that they were part of.
36. The conduct of Tribhuvan after the commission of the act, of absconding in an
attempt to evade the consequences of his criminal act and the confrontation of the
liability of the said act and the juxtaposition of the conduct of Mohan, Sohan and
Bhawarlal after the criminal act brings to light the fact that they did not conceal
themselves for the purpose of avoiding apprehension and comprehend the acceptance
of their culpability.
37. To substantiate the said mitigating circumstance, this Hon’ble Court, in the case of
Sadananda Mondal vs. State of West Bengal,16 has held that--“Another important
circumstance which goes against the case of the prosecution is the conduct of the accused. He
was very well available before and after the incident. In other words, the Appellant-accused
did not abscond which factor proves his defence...”
38. Therefore, the implication of the aforementioned conduct of the three accused forms
an inextricable aspect of the totality of circumstances and must be taken into
consideration to avoid grave miscarriage of justice.
1.4 SOHAN AND BHAWARLAL DID NOT MISLEAD THE COURTS
39. The counsel humbly submits that the conduct of Sohan and Bhawarlal after the
commission of the act was in coherence with prudence as they did not attempt to
perjure themselves neither did they try to concoct stories to mislead the judicial
mechanisms.
40. The conduct of Bhawarlal and Sohan, whilst their confession was being recorded in
the Sessions Court was in good faith as they did not attempt to produce lies in an
attempt to mislead the court. Sohan and Bhawarlal both corroborated the version of
the commission of the act of gang rape truthfully.
41. This implies the intention to assist the court in acceleration of the completion of its
protocols to arrive at a conclusion and to not engender any paralysis or an attempt to
vitiate the trial.
16 2013 (10) SCALE 125

42. In the case of Bishnu Prasad Sinha and Anr. vs. State of Assam 17, this Hon’ble Court
had awarded a lesser punitive quantum to the accused on account of the fact that the accused
showed remorse and repentance through his judicial confession.
43. This conduct separately acts as another mitigating circumstance which is imperative
to take into account while the calculation of the quantum of sentence to lessen to
degree and the nature of the punishment awarded.
1.5 NO PRIOR CONCERT OR PREMEDIDATION WAS THERE BETWEEN MOHAN

AND SOHAN
44. The counsel humbly submits that the there was no prior concert and no pre-meditated
plan between the Mohan and Sohan to execute the commission of gang rape on
prosecutrix.
45. The commission of the plan, as created by Tribhuvan, began when Tribhuvan with the
assistance of Bhawarlal, decided to abduct the prosecutrix and take her to Bhawarlal’s room.
46. The counsel humbly submits that it is vital to take cognizance of the distinction that
exists between the minds and the gravity of intention of a mastermind and of other
assisters. The comparison of a guilty state of mind of a person who has been
intricately involved in the construction and formulation of a plan to materialise the
intention as opposed to the person who has not been a part of that pre-meditation but
got associated at a later stage in the commission of the offence brings to the
distinction between the role that all the accused had in this instant case in the
commission of the offence.
47. Crimes that are committed upon provocation of a third party ought to be dealt with
sensitively, as has also been opined by this Hon’ble Court in the case of Modi Ram and Lala
18
vs. The State of M.P. . In the said case it was observed that while punishing a guilty accused,
there are several factors to be considered in order to meet the ends of justice. A lesser
sentence has to be awarded to the accused that did not have the motive for the commission of
the offence but did so on account of provocation, and that--“Justice demands that all the
attending relevant circumstances should be taken into account for determining the proper
and just sentence...may have committed the crime under the influence of bad company of
again commission of a solitary offence may be due to provocative wrongful action seriously
injuring the feelings and sentiments of the accused.”
17 AIR 2007 SC 848

18 AIR 1972 SC 2438
48. This stark distinction acts as another mitigating circumstance which is imperative to
take into account while the calculation of the quantum of sentence to lessen to degree
and the nature of the punishment awarded.
1.6 ALL THE FOUR ACCUSED ARE FIRST TIME OFFENDERS
49. The counsel humbly submits that three accused are first time offenders. The tag of
first time offenders implies that the accused herein have no prior criminal conduct.
50. To substantiate the aforesaid claim, this Hon’ble Court in the case of Rajesh Kumar v.
State through govt. of NCT Delhi19, has held that in case a person is a first time offender,
leniency is awarded while the calculation of the quantum of sentence. The court had
observed--“Listing the mitigating circumstances in this case, the learned Counsel urged that
there are several of them. The first is that the Appellant is a first time offender... Taking an
overall view of the facts in these appeals...the mitigating circumstances must be given due
consideration.”
51. Furthermore, the Hon’ble High Court of Delhi, in the case of Khem Chand vs. State of
Delhi20, had held that--“Considering all the above factors and Appellant’s age and being a
first time offender, we are of the view that ends of justice would be met in case appellant is
granted reprieve in sentence and reduce the sentence to 10 years”
52. In addition to that, in the case of Rahul vs. State of Maharastra21 wherein the rape
and murder of a four and a half year old child was done by the accused. The accused
was awarded
life imprisonment by this Hon’ble Court, since the accused was a young man of 24 years
when the incident occurred; apparently his behaviour in custody was not uncomplimentary;
he had no previous criminal record and would not be a menace to society. A similar view was
taken in Amit vs. State of Uttar Pradesh22.
53. Furthermore, the probability of recidivism is drastically low as reformation and

rehabilitation of the individual is much more likely. It is easier to rectify the mental
faculties of a person who has committed a crime for the first time. The accused herein
are not habitual repeat offenders as habits are orders of magnitude more difficult to
rectify.
19 (2011) 13 SCC 706

20 ILR(2008)Supp.(5)Delhi92
21 (2005) 10 SCC 322
22 (2012) 4 SCC 107
1.7 MOHAN AND SOHAN ARE OF A TENDER AGE
54. The counsel humbly submits that the particularly nascent and young age of the two
accused Mohan and Sohan must be taken into consideration while formulating the
quantum of sentence for the accused.
55. The mental capacity of people in this age limit is premised on instinct and the
realisation of consequences of the crime committed by them can be made by awarding
a minimal punitive quantum.
23
56. In Bhan Singh vs. State of Rajasthan , this Hon’ble Court took extra care while
dispensing the quantum of sentence to a 19 year old person.
24
57. In the case of Rameshbhai Chandubhai Rathod vs. State of Gujarat , this Hon’ble
Court has held that--“...that the mitigating circumstance particularly the young age of the
Appellant and the possibility that he could be rehabilitated and would not commit any
offence later on, could not be ruled out”
58. Therefore, the prospects of reformation and rehabilitation of the aforementioned

accused are much more likely as it is easier to rectify the mental faculties of a person
who is of a young and nascent age and has a long life ahead of them.
1.8 LACK OF INDEPENDENT EYEWITNESSES REDUCES THE AUTHENTICITY

OF THE EVIDENCE GATHERED HEREIN
59. The counsel humbly submits that the lack of independent eye witnesses reduces the
authenticity of the accuracy of the confession given by the prosecutrix. It is certainly
inadmissible to argue that the rape did not happen.
60. However, the lack of prosecutrix’s statement’s corroboration via any independent
eyewitness brings to light reasonable doubts regarding the accuracy and actuality of the
conduct of the accused persons and the circumstances that persisted during the commission of
the offence.
61. This Hon’ble Court, in the case of Vallabhaneni Venkateshwara Rao vs. State of
25
Andhra Pradesh , held that non-examination of eyewitness results in lack of
corroboration
23 1984 Cri LJ 1131

24 AIR 2011 SC 803
25 (2009) 6 SCC 484

and in this instant case the lack of eyewitness consequentially results in lack of corroboration
and thereby, the prosecution cannot in any way establish beyond all reasonable doubt the
accuracy of the circumstances that persisted during the commission of the offence.
26
62. In addition to the aforesaid judgement, in Alamelu & Anr. v. State the accused
persons were charged u/s 376 & 375 and 366 of I.P.C. The conviction of the accused
based on concurrent findings was set aside as there were doubtful facts and
circumstances in the case and the conviction of the accused was on sole testimony of
prosecutrix.
63. In Abbas Ahmad Choudhary v. State of Assam27, the court observed that--“We are
conscious of the fact that in a matter of rape, the statement of the prosecutrix must be
given primary consideration, but, at the same time, the broad principle that the
prosecution has to provide its case beyond reasonable doubt applies equally to a case
of rape and there can be no presumption that a prosecutrix would always tell the
entire story truthful”
64. Furthermore, in a case based entirely on circumstantial evidence, the circumstances

from which the conclusion of aggravation of the offence is to be inferred have not
only to be fully established but also that all the circumstances so established should be
of a conclusive nature and consistent only with the hypothesis of the aggravating
circumstances put forth by the
prosecutrix against the accused persons. Keeping the said argument in mind, this Hon’ble
Court in the case of Dhananjoy Chatterjee alias Dhana vs. State of West Bengal28 held
that--“In a case based on circumstantial evidence, the existence of motive assumes
significance though the absence of motive does not necessarily discredit the prosecution
case...”
29
65. Furthermore, in the case of Pawan vs. State of Uttaranchal , this Hon’ble Court had
observed that--“Where case hinges on circumstantial evidence, great care must be taken in
evaluating circumstantial evidence to ensure that the circumstances on which the prosecution
relies are wholly consistent with the sole hypothesis of the guilt of the accused”
66. In this instant case, the absence of any motive attributed beyond all reasonable doubt
to the accused persons namely Bhawarlal, Sohan and Mohan holds no ground and
therefore along with the substantiation of the above mentioned case, act as another
extenuating circumstance.
26 AIR 2011 SC 715

27 (2010) 12 SCC 115
28 (1994) 2 SCC 220
29 (2009) 15 SCC 259

67. Therefore, in the light of above presented mitigating and extenuating circumstances, it is
humbly submitted before this Hon’ble Court that leniency must be the priority whilst
formulating the quantum of sentence.
II. REFORMATION AND REHABILITATION MUST BE THE GUIDING

PRINCIPLES BEHIND THE SENTENCING POLICY
68. The counsel humbly submits before this Hon’ble Court that the sentencing efficacy
considering the vital facets of reformation and rehabilitation was not achieved by the
Hon’ble
High Court of Rajasthan. The Hon’ble High Court ignored the humanist principle of
individualizing punishment to justify the person and his circumstances.
69. There are no full proof guidelines to deploy punitive measures. It is the discretion of
the judge to consider the principle behind sentencing policy. Either the judge could
give priority to retributive or deterrence to induce fear into the society with the
thought in mind that fear would have blanket rectification onto the entire society. Or
the judge can give priority to
reformation and rehabilitation to rectify the problem from its roots wherein fear wouldn’t
work.
70. In Phul Singh vs. State of Harayana30, this Hon’ble Court had held that punishment
in case of lust loaded criminality cannot be simply that of a sentence of long
incarceration, for often that remedy aggravates the malady.
71. Offenders in such cases cannot be rehabilitated by humiliating or harsh treatment. In

the aforesaid case, Justice V.R. Krishna Iyer gave correctional course whilst
considering therapeutic guiding principles and other measures hoping that the erotic
aberrations of the offender may wither away particularly when the offender had a
reasonable prospect of shaping into a balance person.
72. In this instant case, two of the accused, Sohan and Mohan are in their early twenties,
the age when minds are most impressionable. Subjecting young people to the
harshness of prison will lead to sufferance of society at large as it has been often
observed that while one person is reformed and moves out of jail another offender is
born. Young accused, if sent to prison will be made to live with relentless criminals
and their chances of rehabilitation are much less instead they might fall prey to
criminal psychology. Rigorous imprisonment at such an early
30 AIR 1980 SC 249

stage of life of students and for a long time will permanently ruin their lives and future
prospects which cannot be ignored.
73. In a landmark criminal case of South Africa, S vs Shilubane31, it was found that
retributive justice had failed and was failing to eradicate the wave of crime. It was
counter-productive and self-defeating, therefore, to expose first-time offenders to the
corrosive and brutalising effect of prison. At the same time restitution of the harm
caused can be accomplished through co-operative processes by focusing on the needs
of the victims and offenders as well as the involved community.
32
74. In Shiv Mohan Singh vs. State of Delhi Justice V.R. Krishna Iyer opined that the
humanist principle of individualizing punishment to suit the person and his
circumstances is best served by hearing the culprit even on the nature and quantum of
the penalty to be imposed. A jail term should normally be enough to wipe out stain of
guilt. But the ignobility associated with jail and social stigma attached to it often
renders the remedy worse than the disease and the very purpose of sentence gets
defeated. Un-proportional harsh punishment in this case would not allow the young
minds to understand the gravity of the offence instead encumber their growth in
becoming responsible and balanced citizens. The law believes that
“if all saints have past then all sinners must have a future”
75. In Bachan Singh vs. State of Punjab33, a landmark judgement, this Hon’ble Court
noted relevant circumstances which must be given weight in determination of
sentence such as--
“(1)that the offence was committed under the influence of extreme mental or emotional
disturbance, (2) the age of the accused, (3) the probability that the accused would not commit
criminal acts of violence as would constitute continuing threat to society and(4) the
probability that the accused can be reformed and rehabilitated”.
76. In this instant case, it is pretty clear that the accused persons are young and have their
complete lives ahead of them. The probability of them being reformed and then
rehabilitated is much more than the probability of them not committing any violent
act if subjected to imprisonment.
31 [2005] JOL 15671 (T)

32 AIR 1977 SC 949
33 AIR 1980 SC 898
77. In State of Uttar Pradesh vs. Sanjay Kumar 34, this Hon’ble Court reiterated general
principles of sentencing reflecting the objective and need of a sentencing policy and
the duty of courts while sentencing. The court held that by laying emphasis on
individualised justice, and shaping the result of the crime to the circumstances of the
offender and the needs of the victim and community, restorative justice eschews
uniformity of sentencing.
78. Furthermore, in Maru Ram vs. Union of India 35, it was held that while social
responsibility of the criminal to restore the loss or heal the injury is a part of the
punitive exercise, the length of the prison term is no reparation to the crippled or
bereaved but is futility compounded with cruelty. Victimology must find fulfilment,
not through barbarity but by compulsory recoupment by the wrongdoer of the damage
inflicted not by giving more pain to the offender but by lessening the loss of the
forlorn.
79. It would be pertinent to state here that in a criminal offence, the crime is against the
state and state interest drive the process of doing justice. The victim is left on the
sidelines once the judgement is pronounced and thus the misery multiplies. The plight
of the victim continues by the disregard of their interest by the criminal justice
system.
80. A positive approach is therefore needed to implement restorative alternatives to

expand survivor choice and offender accountability. Conventional and restorative
justice is often viewed as mutually exclusive whereas in true sense they are
complimentary.
81. Therefore, in the light of above presented mitigating and extenuating circumstances, it
is humbly submitted before this Hon’ble Court that leniency must be the priority
whilst
formulating the quantum of sentence and must focus on the reformative and rehabilitative
aspects of the sentencing policy.
2. WHETHER OR NOT BHAWARLAL SHOULD UNDERGO

IMPRISIONMENT FOR THE WHOLE OF NATURAL LIFE?
82. The counsel humbly submits before this Hon’ble Court that conduct of the accused
Bhawarlal does not warrant life imprisonment for the whole of his natural life. The
primary purpose of awarding any quantum of punishment is to ensure that full and fair
justice has
been dispensed and in this instant case Bhawarlal does not deserve on account of the
34 (2012) 8 SCC 537
35 (1981) 1 SCC 107

circumstances of this instant case and on account of prospects of reformation and

rehabilitation back into the society.
The counsel humbly submits that said argument has three planks which together provide
substantiation as to why Bhawarlal should not be sentenced for the whole of his natural life.
A. PROVISIONS THAT ACCOUNT FOR COMMUTATION OR REMISSION APPLY

IN THIS INSTANT CASE
83. Life imprisonment, in general, means the imprisonment for the whole of the natural life of
36
the person. This Hon’ble court held in Gopal Vinayak Godse vs. State of Maharastra that a
sentence of imprisonment of life must, prima facie, be treated as imprisonment for the whole
of the remaining period of the person’s natural life.
84. However, this Hon’ble Court in a series of decisions has held that the power for
remission of the same under Article 72 and 161 of the Constitution of India can be
very well applied.
[Vide Bhaikon@Bakul Borah vs. State of Assam37, Mohinder Singh vs. State of Punjab38,
Chhote Lal vs. State of M.P.39 and many others]
85. However, the term of life imprisonment can be commuted to fourteen or twenty years
as provided by Section 433 (b) of Code of Criminal Procedure which reads
herein--“The
appropriate government may, without the consent of the person sentenced, commute a
sentence of imprisonment for life, for a term not exceeding fourteen years”
86. This provision has also been provided for by Section 57 of the Indian Penal Code
which reads herein--“Section 57--In calculating fractions of term of punishment,
imprisonment for
life shall be reckoned as equivalent to imprisonment for twenty years”
87. However, this Hon’ble Court, in the case of Dalbir Singh vs. State of Punjab 40, while
discussing the scope of remission observed that--“...we may suggest the life
imprisonment which strictly means imprisonment for the whole of the man’s life but in
practice amounts to
incarceration for a period between 10 and 14 years may, at the option of the convicting
court, be subject to the condition that the sentence of imprisonment shall last as long as life
36 AIR 1961 SC 600

37 2013 (2) ACR 1511
38 (2013) 3 SCC 294
39 (2011) 8 SCR 239
40 (1979) 3 SCC 745

lasts, where there are exceptional indication of murderous recidivism and the community
cannot run the risk of the convict being at large.”
88. In addition to that, the scope of remission and the fact that life imprisonment given
without the possibility of remission is given in the rarest of the rare cases was
41
discussed in the case of Sangeet and Anr. vs. State of Haryana
89. The counsel humbly submits that life imprisonment although means imprisonment for
the whole of convicts of natural life, but there are provisions suggesting that the
imprisonment of fourteen or twenty years is sufficient to meet the necessary ends of
justice and reform the person so convicted.
B. LIFE IMPRISONMENT IS AWARDED IN DEATH CASES WHICH IS NOT THE

CASE HEREIN
90. The counsel humbly submits that life imprisonment is awarded in cases of offence
wherein the death of a person has occurred. It was held in Bachan Singh vs. State of
Punjab42, that in cases of death, life sentence is a rule and death penalty is an exception.
Even in cases of death, life imprisonment is awarded if the offence does not fall under the
rarest of the rare criteria.
91. In this instant case the victim has not been murdered nor can it be established beyond
all reasonable doubt that accused Bhawarlal was primarily and entirely responsible for
the dehumanising and heinousness of the offence.
92. It if therefore, humbly submitted that if life imprisonment if awarded must not be for
a term exceeding fourteen or twenty years.
C. CIRCUMSTANCES OF THIS INSTANT CASE ARE MITIGATING IN NATURE
93. The counsel humbly submits that facts on record do not corroborate any
comprehensible description of the manner and mode in which the rape was
committed. This factor serves as another mitigating circumstance for calculating the
punitive quantum. Hence, it is argued that in absence of such information for the court
to make an informed decision regarding the quantum of punishment, the benefit of
such doubt must be given to the accused.
41 AIR 2013 SC 447

42 AIR 1980 SC 898

94. This Hon’ble Court observed in the case of State of Madhya Pradesh vs. Dayal Sahu 43
that--“Corroboration of testimony of the prosecutrix as a condition for judicial reliance is
not a requirement of law but a guidance of prudence under the given facts and
circumstances... It is also noticed that the Court while acquitting the accused on benefit of
doubt should be cautious to see that the doubt should be a reasonable doubt...”
95. Furthermore, on account of being a first time offender and the fact that no motive can
be attributed to Bhawarlal and that he is not a continuing threat to society with respect
to the formation of maleficent intention to commit gang rape on the prosecutrix that
whilst being heavily intoxicated during the commission of the crime.
44
96. In Addition to that, this Hon’ble Court, in the case of Rajendra Prasad vs. State of U.P.
that, had observed that once the guilt of the person is established, at the stage of sentencing
the court should separate the criminal from the crime and not see them together.
97. Therefore, in the light of the arguments advanced before this Hon’ble Court, the
counsel humbly submits that the accused Bhawarlal should not be awarded life
imprisonment extending for the whole of his natural life.

2000?
98. The counsel humbly submits before this Hon’ble Court that the accused Tribhuvan must
be dealt with, under the Juvenile Justice (Care and Protection of Children) Act, 2000. The
appeal challenging the age of Tribhuvan has no substance and therefore, do not hold any
ground.
99. The definition of Juvenile or Child under the Juvenile Just Act is comprehensive in
terms of the various parameters that need to be taken into consideration whilst dealing
with a delinquent juvenile. Section 2(k) of the aforesaid Act defines Juvenile or Child
as “a person
who has not completed eighteenth year of age”.
43 AIR 2005 SC 3570

44 AIR 1979 SC 916
100. Though the Act does not provide for absolute immunity from criminal liability
for offences committed by juveniles, however the Act provides that no child who has
committed an offence, be sentenced to death or imprisonment for life or committed to
prison in default of payment of fine or in default of furnishing security45.
101. It also, inter alia, stipulates that the child who has committed an offence should
be sent home after advice or admonition; released on probation of good conduct and
placed under the care of parents or guardian; or sent, for a period not exceeding three
years, to a Special Home46.
102. The Act further removes all disqualifications attached to conviction of a juvenile in
47
conflict with law . Thus, upon a reading of the aforesaid sections, it appears that something
akin to absolute immunity from criminal liability is provided by the force of law via this Act.
103. Furthermore, there are a few issues in this instant case regarding Tribhuvan’s juvenility
that require clarity of perspective.
3.1 RELEVANT DATE FOR DETERMINING THE AGE OF TRIBHUVAN
104. One of the major sites of dispute in this instant case is the relevant date that is
to be considered for the juvenile to further incorporate the proceedings
105. In Umesh Chandra v. State of Rajasthan 48, a three-judge of this Hon’ble

Court whilst dealing with juvenility held that--“The relevant date for the applicability
of the Act so far as the 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”
106. However, even after the verdict and observation in the aforementioned
decision, there was judicial ambivalence and it was unequivocally put to rest in 2005
in the case of Pratap
49
Singh vs. State of Jharkhand , A constitutional bench of five judges of this Hon’ble Court,
50
in the backdrop of the conflicting opinion in the case of Arnit Das vs. State of Bihar , has
held that the correct law regarding the relevant date for determining the age of an accused as
45 Juvenile Justice (Care and Protection of Children) Act 2000, s.16.

46 ibid, section 15
47 ibid, section 19
48 (1982) 2 SCC 202
49 (2005) 3 SCC 551
50 AIR 2001 SCC 2261
a juvenile offender is when the commission of the act was done by him and not when he was
brought before the competent authorities.
107. Stressing the legislative intent of juvenile legislations and their legislative
scheme striving for the protection and rehabilitation of juvenile delinquents, the
Constitution Bench opined that the reckoning date for the determination of the age of
the juvenile must be the date of an offence committed by him and not the date when
he is produced before the Juvenile Board or the court.
108. In this instant case, accused juvenile offender Tribhuvan was 17 years and 10
months old while the commission of the offence and the date of the commission of the
offence is 20/12/2015 and therefore based on the aforesaid arguments, that has to be
the relevant date to determine the age of juvenile accused.
3.2 NATURE OF EVIDENCE REQUIRED TO PROVE AGE OF JUVENILE

DELINQUENT
109. The counsel humbly submits that the facts on record of this instant case that
propose a dispute in terms of a conflict of interest regarding the nature of evidence
that has been presented before the court to establish and corroborate that the age of
the accused juvenile delinquent is over 18 is inadequate and inadmissible in the court
of law and that it is just an opinion at the end of the day and cannot be considered in
the court of law to substantially propound its validity in determining the age of the
accused juvenile delinquent.
110. To substantiate the aforesaid argument, in the case of Bhoop Ram vs. State of Uttar
51
Pradesh , this Hon’ble Court was dealing with a case where there was a conflict in respect
of the age between the matriculation certificate produced by the accused and the medical
certificate. This Hon’ble Court held that a medical certificate is based on an estimate and the
possibility of an error of estimate creeping into the opinion cannot be ruled out.
52
111. Furthermore, in the case of Vimal Chadha vs. Vikas Choudhary and Anr. ,
this Hon’ble Court had corroborated the lower court’s decision that--“As far as the
ossification
test and the medical evidence is concerned there too the approach of the learned Additional
Sessions Judge is in my opinion, erroneous. According to the expert the petitioner was 22-25
years on the date of his examination i.e. 9.8.2005. The Learned Additional Sessions Judge
51 AIR 1989 SC 1329

52 (2008) 15 SCC 216
acknowledged that such determination is a rough estimate and the individual would have to
be given benefit by deducing some years but proceeded to do so from the outer age indicated.
This is an incorrect approach as the juvenile is entitled to beneficial interpretation in such
case. Therefore, the two years deduction made would have be (sic) from the lower age
indicated namely, 22 years. That would mean that as in August, 2005 the Petitioner was
probably 20 years; as on the date of incident, (20.01.2003) in all probability he was less than
18 years. This interpretation is also in consonance with the claims based on the Board
Certificate relied upon by the Petitioner”
112. Furthermore, the fact that the statement of a doctor is no more than just a mere
opinion and this fact has been corroborated by the Hon’ble High Court of Allahbad in
the case of
Emperor vs. Qudrat53.
113. In addition to that an authentic birth certificate during the relevant time will
have preference over any medical opinion as there is no certainty of correct age in
medical opinion which may vary plus or minus two years as per medical
jurisprudence. The aforementioned fact has been corroborated by the Hon’ble High
54
Court of Gujarat in the case of State vs. Inayathusen Mahmadmiya
114. Furthermore, where in a marginal case about the age of the perpetrator where
no reliable evidence is available about the age and the medical evidence puts the age
on border, the
benefit of doubt must go to the accused as corroborated in the cases of Narendrasingh55;
56
Balasaheb ;
115. Therefore, it has been established and substantiated that the medical certificate
is inconclusive and is an opinion at the end of the day that cannot be relied upon to
assure the validity of the age of the accuse juvenile delinquent to the extent that is no
longer res integra
and that the matriculation certificate and the birth certificate that are available and have also
been filed as facts on record are proof enough to determine the exact date of the accused
juvenile delinquent.
3.3 JUVENILE MINDS ARE EASILY REFORMABLE AND REHABILITABLE
53 AIR 1939 All 708

54 1996 Cri LJ 3225 (Guj)
55 1996 MPLJ (41)
56 1994 Cri LJ 3044 (Bom)

116. The counsel humbly submits that there is a strong perception that forms the general
liberal consensus, as argued by the State, that injustice is what the courts end up dispensing in
the case of the delinquents. Furthermore, in the light of the Nirbhaya Case57 of gang rape,
the general liberal consensus has become that for all cases of gang rape, regardless of the
circumstances of the commission of the offence, the most extreme punitive measures must be
deployed and that consensus has further taken the form of a force which seeks to eliminate
remedial and curative as measures to deployed at all in such cases.
117. This instant case is one where there are substantial mitigating circumstances and the
accused juvenile delinquent in the said case can be rectified by the application of
Reformative and Rehabilitative measures.
118. The mental faculties of a juvenile delinquent have not fully developed which is why he
does not have the accurate reasoning capabilities to ascertain the difference between what is
right and what is wrong.
119. In the case of Abdul Mannan and Ors. vs. State of West Bengal 58, this Hon’ble Court
has held a ratio decidendi which delineates--“The object of the Juvenile Justice Act is to
reform and rehabilitate the juvenile offenders as useful citizens in the society”
120. The aforementioned ratio further concretizes the objective that the Juvenile Justice Act
aims to achieve is entirely in concurrence with reformation and the rehabilitation of the
accused juvenile.
121. Thus in the light of above presented arguments, it is humbly submitted before this
Hon’ble Court that the accused juvenile delinquent herein must be dealt with under Juvenile
Justice Act, 2000 and must not be tried along with others as a major.
4.WHETHER ADEQUATE COMPENSATION HAS BEEN GRANTED TO THE

VICTIM?
122. The counsel humbly submits before this Hon’ble Court that the Hon’ble Sessions Court
has erred in awarding very high and unreasonable damages. It is worth reproducing before
this Hon’ble Court, Section 357(3) of the Code of Criminal Procedure, 1973:-
57 IV (2014) CCR 174 (Del.)

58 AIR 1996 SC 905

“(3) When a Court imposes a sentence , of which fine does not form a part, the Court may,
when passing judgment, order the accused person to pay, by way of compensation, such
amount as may be specified in the order to the person who has suffered any loss or injury by
reason of the fact for which the accused person has been so sentenced”
123. The counsel humbly submits that no doubt the court can order the accused to
pay compensation to the victim under section 357(3) of the CrPC, however the
payment by way of compensation must, be reasonable as observed by this Hon’ble
Court in the case of Hari
59
Singh vs. Sukhbir Singh . What is reasonable may depend on the facts and circumstances
on record. The quantum of compensation may be determined by taking into account the
nature of crime, the justness of claim by the victim and the ability of accused to pay. If there
are more than one accused they may be asked to pay in equal terms unless their capacity to
pay varies considerably. The payment may also vary depending upon the acts of the each
accused. Reasonable period for payment of compensation, if necessary by instalments may
also be given.
124. In addition to that, this Hon’ble Court took a similar view in case of Rachhpal Singh &
Anr. Vs. State of Punjab60 wherein considerations were placed on the monetary situation of
the accused hence reducing the quantum of compensation.
125. The counsel humbly submits that the accused persons namely Bhawarlal,
Mohan and Sohan, are not capable of producing the exorbitant amount mandated by
the Sessions Court and therefore increasing the amount of compensation is not viable
keeping in mind the financial status of the accused.
126. Compensation serves a dual purpose, first it would have a curative effect on
the offender and moreover, it shall help the victim to rehabilitate to61.
127. The counsel humbly submits that the merits of compensation can be argued on
two planks which are imperative in awarding the compensation to the victim. Firstly,
the theory of Restorative Justice that propounds that the interest of the victim and the
offender must be taken into account while calculating compensation. Secondly,
remorse of the accused inferred via the accused herein.
59 (1988) 4 SCC 551

60 (2002) 6 SCC 462
61
Palijhan v. State of U.P. 1960 SCR (1) 646

4.1 THEORY OF RESTORATIVE JUSTICE APPLIES HEREIN
128. Theory of Restorative Justice is about the idea that if crime hurts, justice
should heal. Offenders are encouraged to take responsibility for their actions, "to
repair the harm they've
done”. Accused should be given an opportunity to compensate the victim directly —to the
degree possible. In V.S.Malimath committee on criminal reforms has held that--“We live in
an age of galloping inflation. Money value has gone down.”
129. Taking into account the rampant inflation and a world where one cannot
survive without monetary benefits when the accused is mandated by the court to
provide monetary compensation. In the present case, adopting the methodology of
restorative justice would be the ideal way to go as considering the mitigating
circumstances, Scope of Reformation and Reintegration, and the age of accused.
Compensating the victim with appropriate amount of compensation, taking into
consideration all the medical expenses incurred by victim would help her with her
future prospects and would serve as the befitting redemption for the accused.
4.2 REMORSE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT WHILST

DETERMINING COMPENSATION
130. The counsel humbly submits that post offence; conduct of remorse being
shown by the accused is a mitigating factor. Accused in this case are willing to
compensate the victim showing the feeling of remorse which the accused are going
through.
62
131. It was held by this Hon’ble Court in the case of Mohd. Giasudden v. State of A.P.
that--"Sentencing justice is a facet of social justice, even as redemption of a crime-doer is an
aspect of restoration of a whole personality”.
132. Redemption on part of the accused is shown undoubtedly. Victim won’t be helped
directly by sentencing justice, but monetary compensation would certainly be quintessential
justice for the prosecutrix. Thus in the light of above presented arguments, it is humbly
submitted before this Hon’ble Court that the compensation mandated must be calculated
whilst taking into account restorative justice and remorse of the accused herein.
62 (1977) 3 SCC 287 19

PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Hon’ble Court that it may be pleased to:-
1. Reduce the quantum of sentence awarded to the three accused to a minimum.
2. Award Bhawarlal to undergo a punitive quantum of 10 years.
3. Declare Tribhuvan to be a minor.
4. Reduce of the quantum of compensation to Rs 50,000/-
AND
Pass any other order that it may deem fit in the interest of Justice, Equity and Good
Conscience.
And for this, the appellant as in duty bound shall humbly pray.
Sd/-
(Counsel for the Appellant-Bhawarlal & Ors.)

3RD AMITY JAIPUR NATIONAL MOOT COURT COMPETITION 2015 Manish Mathur and Team-4

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

3RD AMITY JAIPUR NATIONAL MOOT COURT COMPETITION 2015 Manish Mathur and Team-4

Transféré par

Droits d'auteur :

Formats disponibles

3RD AMITY JAIPUR NATIONAL MOOT COURT COMPETITION 2015

TEAM CODE: ALSJ049

THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

[UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA]

SPECIAL LEAVE PETITION (CRIMINAL) No. ______ / 2015

Bhawarlal and Ors...............................................................................................Respondents

Bhawarlal and Ors.................................................................................................... Appellant

State of Rajasthan.................................................................................................. Respondent

ON THE SUBMISSION BEFORE THE COURT ON 20/9/2015

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT-BHAWARLAL

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 1

S. No. DELINEATIONS PAGE

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 2

I. LIST OF JUDICIAL PRECEDENTS CITED

S. No. JUDICIAL PRECEDENT CITATION

20 In Re: Macherla Balaswamy of Guntur AIR 1953 Mad 827

21 In Re: Suruttayyan alias Vayyapuri Goundan AIR 1954 Mad 523

28 Narendrasingh Bhalsingh vs. State of Madhya 1996 MPLJ (41)

53 The State of Orissa vs. Mutuka Barik 45 (1978) CLT 604

II. LIST OF STATUES REFERRED

1. CODE OF CRIMINAL PROCEDURE, 1973 (ACT 2 OF 1974)

III. BOOKS REFERRED

ABBREVIATION ACTUAL TERM

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 5

M.P. Madhya Pradesh

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 6

Article 136 of the Constitution of India, 1950:

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 7

1. The prosecutrix was a student living in a women’s hostel in Jaipur. As the

II. REGISTRATION OF FIR

III. JUDGMENT BY SESSIONS COURT

a) Shri Bhawarlal, night watchman to undergo rigorous imprisonment for life;

undergo punishment for an additional year.

IV. JUDGMENT BY HIGH COURT

a) Shri Bhawarlal to undergo Rigorous imprisonment of 10 years;

V. APPEAL TO THE HON’BLE SUPREME COURT

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 9

1. WHETHER THE QUANTUM OF SENTENCE AWARDED TO THE

2. WHETHER BHAWARLAL SHOULD UNDERGO IMPRISIONMENT FOR

3. WHETHER TRIBHUVAN NEEDS TO BE DEALT WITH, UNDER THE

4. WHETHER ADEQUATE COMPENSATION HAS BEEN GRANTED TO THE

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 10

1. WHETHER THE QUANTUM OF SENTENCE AWARDED TO THE

1. WHETHER THE QUANTUM OF SENTENCE AWARDED TO THE

I. MITIGATING AND EXTENUATING CIRCUMSTANCES THAT PERSISTED

15. Furthermore, to substantiate argument of reduction of punitive sentence mandated by this

1 AIR 2013 SC 3273

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 12

1.1 THE OFFENCE WAS COMMITTED UNDER THE INFLUENCE OF HEAVY

4 AIR 1980 SC 898

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 13

6 AIR 1956 SC 488

1.2 ACT OF CRIME WAS PLANNED BY TRIBHUVAN AND NOT OTHERS

12 In Re: Macherla Balaswamy of Guntur; AIR 1953 Mad 827

MEMORANDUM ON BEHALF OF THE APPELLANT-BHAWARLAL Page 15

1.4 SOHAN AND BHAWARLAL DID NOT MISLEAD THE COURTS

16 2013 (10) SCALE 125

1.5 NO PRIOR CONCERT OR PREMEDIDATION WAS THERE BETWEEN MOHAN

17 AIR 2007 SC 848

1.6 ALL THE FOUR ACCUSED ARE FIRST TIME OFFENDERS

taken in Amit vs. State of Uttar Pradesh22.

53. Furthermore, the probability of recidivism is drastically low as reformation and