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MOOT COURT MEMORIAL FOR PETITIONER

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION


UNIVERSITY, LUCKNOW

IN THE HON’BLE SUPREME COURT OF INDIANA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2016

SHEKHAR SAXENA ……...PETITIONER

Versus

UNION OF INDIANA …………RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)

WITH

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2016

SHYAMA …………PETITIONER

Versus

UNION OF INDIANA ……….RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………………………………………………5

INDEX OF AUTHORITIES…………………………………………………………………………………………………….7

STATEMENT OF JURISDICTION………………………………………………………………………………………….9

STATEMENT OF FACTS………………………………………………………………......................................10

ISSUES RAISED…………………………………………………………………………………………………………………12

SUMMARY OF ARGUMENTS…………………………………………………………..................................13

ARGUMENTS ADVANCED……………………………………………………………………………………………….15

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT…………………………………………….......................................15

1.1JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED WHEN A QUESTION OF


LAW OF GENERAL PUBLIC IMPORTANCE ARISE…………………………………………………………………….16

1.2THAT THE MATTER INVOLVES QUESTION OF LAW OFGENERAL PUBLIC IMPORTANCE

AND HENCE, ENTITLED TOBE MAINTAINABLE…………………………………………………………………….16

1) WHETHER THE ORDER PASSED BY HIGH COURT AND SESSION COURT WAS
JUSTIFIABLE IN NATURE OR NOT.IN THE LIGHT OF FACT AND EVIDENCE…..16

2.1THE BONE TEST IS A RELIABLE SOURCE………………………………………………18

2.2 OSSIFICATION TEST IS SURER GROUND FOR DETERMINATION OF


AGE ………………………..........................................................................................19

3. WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE OF COMMONINTENTION


DEFINED UNDER S.34 OF
IPC……………………………………………………………………………………………………….20

3.1ABSENCE OF COMMON INTENTION………………………………………….....................................21

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3.2THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION………....................22

4. WHETHER THE ACT IS IN CONTRAVENTION WITH THE CONSTITUIONOF INDIANA AND


INTERNATIONAL NORMS……………………………………………………………………………………………….23

4.1.THE ACT IS IN CONTRAVENTION WITH THE ARTICLE 14 and 21 OF THECONSTITUTION OF


INDIANA…………………………………………………................................................................................24

4.2.THE ACT IS IN CONTRAVENTION WITH THE UN CONVENTION ON THE RIGHTS OF


CHILD…………………………………………………………………………………………………………………….26

PRAYER……………………………………………………………………………………………………………………..29

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LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court


Bom. LR Bombay Law Reporter

Cal Calcutta High Court


CBI Central Bureau of Investigation

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

Ed. Edition

JJA Juvenile Justice Act

Guj Gujarat High Court

HC High Court
IPC Indian Penal Code

ILR Indian Cases


ITR Indian Law Reports

Mad Madras High Court

NCRB National Crime Records Bureau

Pat Patna High Court

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SC Supreme Court

SCC Supreme Court Cases

Sec. Section
U.O.I Union of India

Versus
V.

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INDEX OF AUTHORITIES
CASES

 Kunhayammed&Ors vs State Of Kerala &Anr on 19 July, 2000

 GuruyayooDevaswom Managing Committee v. C.K Rajan, (AIR 2004 SC 561),

 C.C.E v Standard Motor Products, (1989) AIR 1298.

 Bishwant Ghosh v State AIR 1957 Cal. 589; (1957) CrLJ 1114.

 LaimayumTonjou v Maniour Administration AIR 1962 Manipur 5; (1962)1 CrLJ 49.

 Alekh Prasad v State (1964) 2 CrLJ 102.

 Om Prakash V. State of Rajasthan (2012) 5 SCC 20.

 Ramdeo Chauhan V. State of Assam (2001) 5 SCC 714.

 . Mithu v. State of Punjab 1983 AIR 473

 Dadu Vs. State of Maharashtra (2000) 8 SCC 437

 Esssddings V. Oklahoma 455 U.S. 104 (1982).

 Mepa Dana, (1959) Bom LR 269.

 OswalDanji v. State, (1960) 1 Guj LR 145.

 Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.).

 State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.

 Dharam Pal v. State of Haryana, AIR 1978 SC 1492.

BOOKS

 Ratanlal&Dhirajlal’sLaw of Crimes – A Commentary on The Indian Penal Code,

Vol I,Bharat Law House, Delhi, 27thEdn. 2013.

 Justice V. V. Raghavan, Law of Crimes, India Law House, New Delhi, 5th Edn. 2001. K I

Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12thEdn. 2014.

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STATUTES

 Indian Penal Code, 1860.

 The Juvenile Justice (Care and Protection of Children) Act. 2015.

 The Juvenile Justice (Care and Protection of Children) Rules. 2007.

 The Constitution of India, 1949.

TREATIES

 United Nations Convention on the Rights of the Child, 1990

LEGAL DATABASES

 Manupatra

 SCC Online

 Judis

 Indian Kanoon

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STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Indiana under Article 136 of
the Constitution of Indiana. The leave has been granted by this Hon’ble court in both matters
and both the matters are to be heard by this Hon’ble Supreme Court together. The article 136
of Constitution of Indiana reads as hereunder:

“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

(1) Notwithstanding Anything In This Chapter, The Supreme Court May, In Its

Discretion,

Grant Special Leave To Appeal From Any Judgment, Decree, Determination, Sentence

Or

Order In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The

Territory Of India.

(2) Nothing In Clause (1) Shall Apply To Any Judgment, Determination, Sentence Or

Order Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any

Law Relating ToThe Armed Forces.”

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STATEMENT OF FACTS
1. Shyama is a poor boy who used to live in a slum area outskirt of the city Bandra. He
studied in government school till class 6th only after he get employed only under
Mr.R Batra. It has been 6 year in his employment.
2. Ravi aged 18 years and Vanita aged 16 years children of Mr. R. Batra. Shekhar aged
17 years and 7 months who is son of Mr. Saxena neighbour of Mr. Batra.
3. Shekhar and Ravi both dislike each other since their childhood. One day Vanita and
Ravi were jogging in a park and the same time Shekhar was playing soccer and
suddenly Vanita get some minor head injury with the football. As a result Shekhar
and Ravi started abusing each other and on the heated quarrel between the two Ravi
gave a blow to a Shekhar . Soon the quarrel was resolved by the neighbour.
4. Ravi and Vanita used to insult Shyama in a public place on a regular basis. One day
Shekhar saw this and talked to Shyama both started the hatered for the Ravi and
Vanita.
5. On 7th march Shyama took a leave for 3 days from Mr. Batra and on next day Mrs.
Batra had planned for exhibition with her family but due to absence of Mr. Batra . She
decided to go with her family. Shyama already knows about this.
6. Mrs. Batra with her family reached the exhibition at 7.30 pm. on 8thMarcharound
8.30 pm Vanita was taken by 4 person .after this Ravi started searching his sister
while searching his sister he found wrongfully confined his sister by 4 person two
person were holding her sister and other two were outrage her modesty while saving
his sister he suffered one blow on his head and several blows on his abdomen and he
fell unconscious.Vanita tried to scream but her mouth was shut and in sudden haste
she was strangulated. She fell dead and all 4 person fled away. The bodies of Vanita
andRavi found around 9.30 by the guard who used to come out to switch off the light.
7. On 10th March Shekhar was arrested by the information of Ram Manoher and
Shyama with Raju and Ranveer was arrested on 12th march who was Shekhar ‘s
friend .
8. On 15th march case was admitted to J.J Board because all the 4 accused were below
the age of 18 years but case of Shyama and Shekhar goes to the session court because
J.B found that they both are well aware of the consequences and circumstances of

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their acts. Both of them were tried in I.P.C. On 12th June 2015 Shekhar case was
remanded back to the J.B because of the lack of evidence of about his age but Shyama
case remained with the session court due to the rejection of bonafied test due to
inconclusiveness of test.
9. On 28th July Shyama found guilty under section 304,326,354 of I.P.C and get
imprisonment of 3 years. On 4 August Shekhar was sent to special home for
maximum period of 3years by the J.B after the Shekhar appealed to the session court
against the judgment of the J.J Board however the appeal was dismissed by the
session court then after Shekhar and Shyama move to high court and appealed
against the conviction since the court of session had no jurisdiction to try the case but
High Court also rejected the appeal and contension raised by the prosecution against
Shyama and Shekhar that both culprit should convicted under the section 302 instead
of section 304 this was accepted by the High Court and Shyama was sentenced for the
life imprisonment and Shekhar was sentenced for the 10 years.On 11th January, 2016,
both the accused have petitioned before this Hon’ble Apex Court against the order of
High Court and the Sessions Court. The matter is admitted and listed for hearing.

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ISSUE RAISED

1. WHETHER SPECIAL LEAVE PETITION IS MAINTAINABLE


UNDER SECTION 136 OF SUPREME COURT UNDER THE
FOLLOWING CASE OR NOT.

2. WHETHER ORDER PASSED BY THE HIGH COURT AND


SESSION COURT WAS JUSTIFIABLE IN NATURE OR NOT. IN
THE LIGHT OF FACT AND EVIDENCES.

3. WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE


OF COMMONINTENTION DEFINED UNDER S.34 OF IPC.

4. WHETHER THE ACT WAS ULTRAVIRE TO THE


CONSTITIUTION OF INDIANA AND INTERNATIONAL LAWS.

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SUMMARY OF ARGUMENT

Whether Special Leave Petition is maintainable under section 136 of


Supreme Court under the following case or not.

It is humbly submitted before the honourable supreme court that special leave petition is
maintainable under article 136 of the Constitution of Indiana.When a question of law of
general public importance arises or the decision shock the conscience of the court then the
article 136 has the residuary power of supreme court to do justice where the Court is satisfied
that injustice is done and in this there is involvement of substantial question of law hence the
special leave petition is maintainable .

Whether order passed by the High Court and Session Court was justifiable
in nature or not.In the light of fact and evidences.

It is humbly submitted to the Supreme Court that the session Court in the light of the facts
and circumstantial evidence declare that Shekhar and Shyama both has commit heinous crime
but not consider the bone test or any other allied test for the determination of the age then
there is a huge irregularity is done in the process of law followed by the session court and the
high court therefore the order passed by the session court and the high court is not justifiable
in nature.

WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE OF

COMMONINTENTION DEFINED UNDER S.34 OF IPC.

It is humbly submitted before the supreme court that there has been grave error in convicting
Shekhar solely on the basis of his mere presence at the exhibition and only by sneaking out of
the basement does not clarify that Shekhar is involved in the alleged act.Shekhar is being
dragged into the picture for no cause therefore RamManoher statement is not justifiable in the
lights of law.

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WHETHER THE ACT IS IN CONTRAVENTION WITH THE


CONSTITUIONOF INDIANA AND INTERNATIONAL NORMS.

It is respectfully submitted that the impugned Act seeks to punish the child in conflict
with law for the failure of the society at large in providing the child with adequate care
and protection. It is submitted that the impugned Act seeks to create a fictional
classification between the children belonging to age group of 16-18 years on the basis of
degree of crime "allegedly" committed by them.

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ARGUMENT ADVANCE

WHETHER SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER


SECTION 136 OF SUPREME COURT UNDER THE FOLLOWING
CASE OR NOT.

It is humbly submitted before the honourable supreme court that special leave petition is
maintainable under article 136 of the Constitution of Indiana. When a question of law of
general public importance arises or the decision shock the conscience of the court then the
article 136 has the residuary power of supreme court to do justice where the Court is satisfied
that injustice is done and in this there is involvement of substantial question of law hence the
special leave petition is maintainable.

1.1 JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED


WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE IS
ARISES

It is not the policy of this Court to entertain special leave petitions and
grant leave under Article 136 of the Constitution save in those cases where some substantial
question of law of general or public importance is involved or there is manifest injustice
resulting from the impugned order or judgment. 1In the present case, the issue involves matter
of General Public Importance and hence, entitled to be maintainable.

1.2 THE MATTER INVOLVES QUESTION OF LAW OF GENERALPUBLIC


IMPORTANCE AND HENCE, ENTITLED TO BEMAINTAINABLE.

It has been held by this hon’ble court that when a question of law of general public
importance arises2 or a decision shocks the conscience of the court, its jurisdiction can always
be invoked. Article 136 is the residuary power of SC to do justice where the court is satisfied
that there is injustice3. The principle is that this court would never do injustice nor allow

1
Kunhayammed&Ors vs State Of Kerala &Anr on 19 July, 2000
2
GuruyayooDevaswom Managing Committee v. C.K Rajan, (AIR 2004 SC 561),
3
C.C.E v Standard Motor Products, (1989) AIR 1298.

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injustice being perpetrated for the sake of upholding technicalities. In any case, special leave
would be granted from a second appellant decision only where the judgment raises issue of
law of general public importance.

In this case the proper inquiry werenot done and there is a huge irregularity and not follow
the procedure of law by the J J board and high court regarding the age of the shyama and in
case of Shekhar not properly collected the evidences and the judgement which is passed
contradictory with general public importance.

Hence it is humbly submitted before this court that the matters involves question of law of
general public importance and therefore, the appeal is maintainable under article 136 of the
Constitution of Indiana.

WHETHER THE SESSIONS & HIGH COURT WERE JUSTIFIED

INREJECTING THE BONE TEST

It is submitted before this Hon’ble Court that the bone age of a child indicates his/her level of
biological and structural maturity.By the age of 18 years, bone age cannot be computed from
hand & wrist radiographs, therefore the medial end of the clavicle is used for bone age
calculation in individuals aged 18—22 years. In the present case, the plea to conduct a bone
test or any other allied test for the determination of the age of Shyama was rejected by the
Sessions & High Court. The reason for such decision to reject the above mentioned tests was
due to the inconclusiveness of these kinds of tests4. This is an insufficient ground for
rejecting to conduct the Age Determination Test.

The Juvenile Justice (Care and Protection of Children) Act, 2015states that,

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age determination, by seeking
evidence by obtaining —

4
Fact Sheet, ¶11, Line 7.

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(i) The date of birth certificate from the school, or the matriculation or equivalent
certificate from the concerned examination Board, if available; and in the absence
thereof;
(ii) The birth certificate given by a corporation or a municipal authority or a
panchayat;

(iii) And only in the absence of (i) and (ii) above, age shall be determined by an
ossification test or any other latest medical age determination test conducted on the
orders of the Committee or the Board5”

It is a well-accepted fact in the precedents of our Indian Judiciary that the last resort for age
determination of a juvenile is the Bone Test i.e. Ossification Test. The "Age determination
inquiry" conducted under Section-94(2) of the JJA, 2015 enables the court to seek evidence
and in that process the court can obtain the matriculation or equivalent certificates, if
available. If there is an absence of both, matriculation or equivalent certificate and the date of
birth certificate from the school first attended, the court needs to obtain the birth certificate
given by a corporation or a municipal authority or a panchayat (not an affidavit but
certificates or documents). The question of obtaining medical opinion from a duly constituted
Medical Board arises only if the abovementioned documents are unavailable. In case the
exact assessment of the 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 two years.

2.1 THE BONE TEST IS RELIABLE SOURCE


The ossification test shall be preferred over matriculation certificate as an appropriate method
to determine the age of a juvenile. Sexual assault on females is a global health & human right
issue. The problem has legal as well as medical related bearing. The ages of relevance to
criminal liability ranges between 14 and 18 years in most countries. In proving those types of
crimes, age estimation is most important. In accordance with the updated recommendations
from experts worldwide, a physical examination with determination of anthropometric
measures, inspection of signs of sexual maturation, dental examination and X- ray
examination are carried out to determine the age of a person. It is not advisable to rely upon

5
Section 94, Juvenile Justice (Care and Protection) Act. 2015.

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matriculation certificates and other such documents to determine the age as they are highly
subjected to forgery.

2.2 OSSIFICATION TEST IS SURER GROUND FOR DETERMINATION OF AGE

Ossification is the process of formation of new bone by cells called osteoblasts. As per
scientific evidence, by the age of 25 years nearly all bones are completely ossified in humans.
Ossification test is done on the basis of fusion of joints in the human body between birth and
age 25. If all joints are fused the person must be older than 25yrs of age. As per experts,
ossification a more reliable method of determining age than ascertaining the age on mere
appearance basis. In the present state of development of medical science and knowledge, we
must proceed on the evidence of age furnished by Ossification Test.6 The test of Ossification
of bones has a greater value in determining the age and the x-ray examination is absolutely
necessary.7 In Alekh Prasad v State8, it was held that ossification test maybe accepted as a
surer ground for determination of age.

In Om Prakash V. State of Rajasthan,9 it was held that in a circumstance where the trial
court itself could not arrive at a conclusive finding regarding the age of the accused, the
opinion of the medical experts based on ossification test will have to be given precedence
over the shaky evidence based on school records. It was further opined that while considering
the relevance and value of the medical evidence, the doctor’s estimation of age although may
not be a sturdy substance for proof and can be an opinion as well, such opinion based on
scientific medical test like ossification and radiological examination will have to be treated as
a strong evidence having corroborative value while determining the age of the alleged
juvenile accused. In Ramdeo Chauhan Vs. State of Assam,10it was decided that opinion of
an expert cannot be sidelined on the grounds that it is just an opinion especially in the realm
where the Court gropes in the dark to find out what would possibly have been the age of an
accused. In the absence of all other acceptable material, if such opinion points to a reasonable
possibility regarding the range of his age, it has certainly to be considered.

6
Bishwant Ghosh v State AIR 1957 Cal. 589; (1957) CrLJ 1114.
7
LaimayumTonjou v Maniour Administration AIR 1962 Manipur 5; (1962)1 CrLJ 49.
8
Alekh Prasad v State (1964) 2 CrLJ 102.
9
Om Prakash V. State of Rajasthan (2012) 5 SCC 20.
10
Ramdeo Chauhan V. State of Assam (2001) 5 SCC 714.

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WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE OF


DEFINEDUNDER S.34 OF IPC.
It is submitted before the honourable court that the Shekhar was not guilty for the act. He
was intentionally pull into the picture .the section 34 states that:-

Section 34: When a criminal act is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it were
done by him alone.

This section is intended to meet cases in which it may be difficult to distinguish between the
acts of the individual members of a party or to prove what part was exactly part was exactly
taken by each of them in furtherance of the common intention of all.11The reason why all are
deemed guilty in such cases is that the presence of accomplices gives encouragement, support
and protection to the person actually committing an act.

To constitute common intention it is necessary that the intention of each one of them was
known to the rest of them and was shared by them.12

The test to decide if the intention of one of them is common is to see whether the intention of
one was known to the other and was shared by that other. In drawing the inference the true
rule of law which is to be applied is the rule which requires that guilt is not to be inferred
unless that is the only inference which follows from the circumstances of the case and no
other innocuous inference can be drawn.13

3.1 ABSENCE OF COMMON INTENTION

It is submitted that the co-accused Shekhar is being pull forcely into the picture for no
fault, participation or involvement of his in the alleged act in question. It is submitted
that the Shekhar nor any intension nor any prior meeting of minds in furtherance of
common intension at the commission of the crime.

11
Mepa Dana, (1959) Bom LR 269 (SC): AIR 1960 SC 289: 1960 CrLJ 424.

12
(1979) 47 Cut LT 330 (338): ILR (1979)1 Cut 356.

13
OswalDanji v. State,(1960) 1 Guj LR 145: AIR 1960 Guj 16 (18): 1961 (1) CrLJ 251 (DB).

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‘Common intention’ implies a pre- concerted plan and acting in concert pursuant to
the plan. Common intention comes into being prior to the commission of the act in
point of time

Two elements are required to fulfill the requirements of S. 34. One is that the person
must be present on the scene of occurrence and the second is that there must be a
prior concert or a pre-arranged plan. Unless these two conditions are fulfilled, a
person cannot be held guilty to an offence by the operation of Section 34.

The prosecution fails to prove by the evidence that he was present at the occurrence of the
act.The prosecution fails to prove by the evidence that there is any prior meeting of mind or
any common intension shared between them but it must be necessary be before the
commission of the crime. hence, it was held that Sec. 34 of the Indian Penal Code cannot be
resorted to hold accused guilty of any crime14.

Therefore, it is humbly submitted that there was no common intention among Shekhar
and the others accused. Hence, in absence of common intention he must not be held
liable under S.34 of the IPC.

3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION

S. 34 existence of common intention is not enough, the criminal act impugned to attract S.34
must be committed in furtherance of common intention. The section operates only when it is
found that the criminal act done by an individual is in furtherance of the common intention
and not without it15. The words ‘in furtherance of the common intention of all’ in S.34, IPC
do not require that in order that the section may apply, all participants in the joint acts must
either have common intention of committing the same offence or the common intention of
producing the same result by their joint act be performed.

Before the Court can convict the person vicariously for the act of another, it must satisfy
itself of the existence of a prior concert between them or a pre-arranged plan. No hard and
fast rules must be laid down, and each case has to decide on its own merits, but it is essential
for the Court to arrive at a definite finding on whether or not the accused before it had acted
14
Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.).
15
State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.

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in furtherance of a common intention and whether the accused is actively participated at the
commission of the crime but in the present case there accused was not present in the
commission of the crime.

The aforementioned essential conditions have not been met with in the present case and
therefore Section 34 of the IPC is not applicable.

WHETHER THE ACT IS IN CONTRAVENTION WITH THE


CONSTITUIONOF INDIANA AND INTERNATIONAL NORMS.

A heinous crime is an action that is not just illegal, but it is also considered hateful or
reprehensible. When the juvenile commits a crime, he shall not be tried by the ordinary
Criminal courts but by the Juvenile Board. In India the age of Juvenile is fixed as 18 years.
Therefore any child under the age of 18 years who commits “any” offence shall be tried by
the Juvenile Justice Board only and not the ordinary criminal courts. It is submitted that under
the Indian law a person under the age of 18 is not allowed to vote, is considered minor for
entering into a contract, a girl of age less than 18 cannot give consent for sexual relationships,
a child of age less than 18 cannot marry, yet, by the amended act, that child can be tried as an
adult and after a preliminary assessment, the child shall be presumed to have the knowledge
and understanding of the alleged crime he has committed. The counsel submits that such a
scenario would be travesty of Justice.

4.1THE ACT IS IN CONTRAVENTION WITH THE ARTICLE 14 and 21 OF

THE CONSTITUTION OF INDIANA

The Act17 is violative of Article 14 of the constitution because, a juvenile who commits a less
serious offence as well as a juvenile who commits a more grievous or heinous crimes are
given the same protection and treatment. Therefore the unlikes are treated alike which is
against the constitutional principle of right to equality where reasonable classification must
be made and likes must be treated alike.

The current scenario in the society of Indiana suggests that the state has to apply the
Deterrent theory of punishment in cases of heinous crimes in order to reduce the growth of

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such offences by the Juveniles and state has to classify the Juvenile offenders based on the
nature of the crime and should not impose a blanket immunity over all the juvenile offenders.

Such blanket immunity also violates Article 21 of the victims of such offences as Right to
Life also includes Right to Justice. When one Juvenile commits a less serious offence
inflicting lesser damage upon the victim and another Juvenile commits a heinous crime taking
away the life of the victim are treated alike, it is prejudicial to the victim in the latter case
who has suffered more. Thus in order to grant justice to the victims of the crime too there
must be a classification made between the Juveniles.

Article 21 of the Constitution, every citizen has a fundamental right to live in dignity and
peace, without being subjected to violence by other members of society and that by shielding
juveniles, who were fully capable of understanding the consequences of their actions, from
the sentences, as could be awarded under the Indican Penal Code, as far as adults are
concerned, the State was creating a class of citizens who were not only prone to criminal
activity, but in whose cases restoration or rehabilitation was not possible. It is therefore
submitted that the provisions of Sections 15 and 16 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, violated the rights guaranteed to a citizen under Article 21
of the Constitution and were, therefore, liable to be struck down.

It is unconstitutional to place all juveniles, irrespective of the gravity of the offences, in one
bracket. Section 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000,
ought not to have placed all children in conflict with law within the same bracket, and the
same is ultra vires Article 21 of the Constitution. Referring to the report of the National
Crime Records Bureau (NCRB) for the years 2001 to 2011, it can be submitted that between
2001 and 2011, the involvement of juveniles in cognizable crimes was on the rise and it is a
well-established medical- psychological fact that the level of understanding of a 16 year-old
was at par with that of adults.

The ban on jurisdiction of criminal courts by Section 716 of the Act is unconstitutional in as
much as it virtually ousts the criminal justice system from dealing with any offence
committed by a juvenile. Parliament cannot make a law to oust the judicial function of the
courts or even judicial discretion in a matter which falls within the jurisdiction of the courts.
Reliance in this regard is placed on the judgments of this Court in the case of Mithu v. State

16
Juvenile Justice (Care and Protection of Children) Act, 2000.

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of Punjab17 and Dadu Vs. State of Maharashtra18. It is argued that what the Act
contemplates in place of a regular criminal trial is a non- adversarial inquiry against the
juvenile where the prime focus is not on the crime committed but on the reasons that had led
the juvenile to such conduct. The maximum power of ‘punishment’, on proof of guilt, is to
send the juvenile to a special home for three years. The entire scheme under the Act being
substantially different from what is provided by the Code of Criminal Procedure for
investigation of offences and for trial and punishment of offenders, it is submitted that the
Act offends a core constitutional value namely, the existence of a criminal justice system.

The Act would result in over-classification if all juveniles, irrespective of the level of mental
maturity, are to be grouped in one class and on the further ground that the Act replaces the
criminal justice system in the country and therefore derogates a basic feature of the
Constitution. Thereforethe Petitioner contends that such blanket immunity is violative of the
Article 14 and 21 of Constitution of Indiana.

4.2 WHEATHE RTHE ACT IN CONTRAVENTION WITH THE UN


CONVENTION ON CHILD ON THE RIGHTS OF CHILD.

The counsel humbly submits that the impugned amendment is against the UN Convention on
the Rights of the Child (hereinafter as UNCRC) which is a comprehensive and
internationally binding agreement on the rights of children.Indiana is signatory to United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
(Beijing Rules), The Convention of the Rights of the Child, 1990 (CRC); &. The United
Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 (Havana
Rules), and also ratified CRC which ultimately aims to protect the rights of children and to
punish the delinquent juvenile with proportionality and also does not prohibit the member
countries to allow juveniles to be tried under regular criminal justice system in certain
circumstances.

Since the increase in violent crimes committed by U.S., severalStates has adopted a ‘get
tough’ approach in response. The jurisdiction of juvenile courts is automatically waived when

17
Mithu v. State of Punjab 1983 AIR 473
18
Dadu Vs. State of Maharashtra (2000) 8 SCC 437

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a juvenile above a certain age, usually 13 or 15, commits a violent or other serious crime, and
the case is automatically transferred to adult court.

Similarly, in the U.K., persons under age 18 are tried by a ‘Youth Court’ which is a special
type of magistrate’s court for those aged 10-18 years. However, for serious crimes like
murder or rape, the case starts in Youth Court but is transferred to a Crown Court which is
the same as a Sessions Court. The Crown Court can sentence the child for offences of murder
committed when the offender was a youth as well as for ‘grave crimes’ including sexual
assault and sentence the child to ‘indeterminate detention for public protection.’

Determination of Juvenility if based only on age and not also on gravity of the offence
committed, it will rather act as a sign of failure in ensuring public protection. Leading into the
future, we may lose, indirectly destroy, lives if we refuse to punish them anymore. Since
1993, more than 43 countries have passed laws making it easier for juvenile delinquents to be
tried as adults19.

In New York, a research was made among 1400 individuals aged 11-24 years, the findings
from the assessment revealed that the performance of 11-13 years old differs from 14-15
years old and that of 14-15 years old differs from 16-17 old, but interestingly performance
and thinking of 16-17 year old did not differ from 18-24 old.20 This shows that a juvenile
under 18 years has enough capability to possess mental maturity to be treated at par with
adults.

Not only State laws, but even international conventions do not prohibit such actions in special
circumstances. The Convention of the Rights of the Child, 1990 (CRC) and United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
(Beijing Rules) do not prohibit subjecting children/juveniles to the regular criminal justice
system under certain circumstances.

Rule 17 of the Beijing Rules21, in turn, provides that the reaction shall be in proportion to the
circumstances and the gravity of the offence as well as the circumstances and needs of the
juvenile as well as the needs of society. Furthermore, personal liberty may be deprived if the
juvenile is adjudicated guilty of a serious offence involving violence against another person

19
Juveniles should be tried as adults, Christine Watkins, Green haven Press,2008.
20
Human Resource Watch, The rest of their lives ’life without parole for child offenders in U.S, Chapter V; The
difference between youth and adults, New York: HRW.2005.
21
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules).

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or persistence in committing other serious offences. Therefore Indica’s international legal


obligations do not prohibit the state from amending the Act22 to provide that persons between
the age of 16-18 who are accused of serious, horrendous and heinous offences like rape and
murder should be treated based on, the gravity of offence committed, and not on, their
chronological age.

Art.4 of Beijing Rules23 states that the minimum age of criminal responsibility differs
widely owing to history and culture. The modern approach would be, to consider whether a
child can live up to the moral and psychological components of criminal responsibility; that
is, whether a child, by virtue of her or his individual discernment and understanding, can be
held responsible for what is essentially an antisocial behavior. As the culture and practices in
Indica has witnessed several changes, fixing an age to determine the juvenility will not do
well in meeting the ends of justice as straight-jacket formula cannot be applied in juvenile
cases.

Article 12 of The Convention of the Rights of the Child, 1990 (CRC) States Parties shall
assure to the child, who is capable of forming his or her own views, the right to express those
views freely in all matters affecting the child, the views of the child being given due weight
in accordance with the age and maturity of the child.

In Eddings V. Oklahoma24 where a 16 year old was sentenced to death for killing a highway
patrol officer, the unstable family life and emotional disturbances was not considered, only
the gravity and seriousness of the offence was an important mitigating factor in deciding the
culpability of the offender.

Merely going through a differential process for juvenile offenders is not enough. It is obvious
that the social contract underlying a lenient regime requires equal attention to be paid to the
design and implementation of a proper determination of juvenility. Society will only continue
shielding young offenders, guilty of great brutality from the rigors of adult justice by having
their age as a protective shield. Thus, it is humbly submitted before this Hon’ble court that in
the present case the act is not consonance with the principals of UNCRC.

Lastly, the counsel herein submits that the brain of the teenager is not completely developed
and he/she is incapable of fully understanding the consequences of his actions or omissions.

22
Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000).
23
Ibid.
24
Esssddings V. Oklahoma 455 U.S. 104 (1982).

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Furthermore, it is submitted before this Hon’ble court that in the present case the act in
question is in contravention with the Constitutional provisions of the Constitution of Indiana
as well as it is also not in consonance with the principles of the UNCRC.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to:

1. Set aside the conviction of Shekhar and free him from all the charges framed

upon him.

2. Hold that the case of Shyama be remanded back to the Juvenile Justice Board for

his trial as a minor.

3. Hold that the Ossification Test of Shyama be conducted for the determination of

his age.

4. Hold that the Juvenile Justice (Care and Protection) Act. 2015 is in contravention
with

Constitution of Indiana and the International Conventions.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONER