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TEAM CODE:

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

WRIT JURISDICTION
APPELLANT JURIDICTION

IN THE MATTER OF:

LORD JOGESHWARA TRUST……………………………………… PETITIONER

V.

UNION OF INDIANA AND ORS…………..……………...…………. RESPONDENT

STATE OF ARYA PARDESH…………………………………………APPELLANT

V.

PT KALI CHARN AND ORS………………………………………….DEFENDENT

RAAHEE (REGIONAL ASSOCIATION FOR AWARENESS IN HEALTH,


EDUCATION, AND ENVIRONMENT)……………………………….PETITIONER
V.
UNION OF INDIANA AND ORS…………..……………...…………. RESPONDENT

CP. No. 111 of 2018


Cr. App. No. 1028 of 2018
(WP. No. 1008 of 2018).

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ON SUBMISSION TO HON’BLE SUPREME COURT OF INDIANA UNDER ARTICLE
32,137 AND ARTICLE 134 OF THE CONSTITUTION OF INDIANA

WRITTEN SUBMISSIONS ON THE BEHALF OF PETITIONER


COUNSEL APPEARING ON BEHALF OF PETITIONER

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MEMORIAL ON THE BEHALF OF PETITIONER

TABLE OF CONTENTS

CONTENTS
LIST OF ABBREVIATIONS............................................................................................................5

LEGISLATION.................................................................................................................................6

LIST OF CASES............................................................................................................................6

BOOKS..............................................................................................................................................7

INTERNATIONAL INSTRUMENTS..............................................................................................8

WEB RESOURCES..........................................................................................................................8

DICTIONARIES...............................................................................................................................8

STATEMENT OF JURISDICTION................................................................................................10

STAEMENT OF FACTS.................................................................................................................12

BACKGROUND..........................................................................................................................12

PROHIBITIONON ENTRY OF WOMEN ACT, 1985 AND ITS EFFECT................................12

STATEMENT OF ISSUES..............................................................................................................15

ARGUMENTS ADVANCED(ISSUE-1)........................................................................................19

WHETHER PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM

ENTERING LORD JOGESHWARA TEMPLE IS VIOLATIVE OF THE FUNDAMENTAL

RIGHTS ENSHRINED UNDER THE CONSTITUTION OF INDIANA, AND THE CLAIM

FOR THE EXCLUSION OF WOMEN FROM RELIGIOUS WORSHIP FOUNDED IN

RELIGIOUS TEXT, IS SUBORDINATE TO THE CONSTITUTIONAL VALUES OF

LIBERTY, DIGNITY AND EQUALITY?...................................................................................19

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PROHIBITION OF DISCRIMINATION ON GROUND OF SEX IS VIOLATION OF

FUNDAMENTAL RIGHTS OF WOMEN..................................................................................23

DISCRIMINATION IN MATTERS OF ENTRY TO TEMPLES IS NEITHER A RITUAL

NOR A CEREMONY ASSOCIATED WITH HINDU RELIGION............................................25

THE REQUIREMENT OF CONSTITUTIONAL CONFORMITY IS INBUILT AND IF A

CUSTOM OR USAGE IS OUTSIDE THE PROTECTIVE UMBRELLA, THE LAW WOULD

CERTAINLY TAKE ITS OWN COURSE...................................................................................25

INDIVIDUAL RIGHT TO WORSHIP VS. DENOMINATIONAL RIGHT TO MANAGE ITS

RELIGIOUS AFFAIRS:...............................................................................................................26

PREAMBLE OF CONSTITUTION: LIBERTY OF THOUGHT, EXPRESSION, BELIEF,

FAITH AND WORSHIP..............................................................................................................26

WHETHER THE IMPUGNED ACT IS VIOLATING THE FUNDAMENTAL RIGHT GIVEN

UNDER ARTICLE 25 OF THE CONSTITUTION....................................................................27

WHETHER ARTICLE 26 WHICH ASSURE TO MANAGE AND MAINTAIN THE

AFFAIRS OF ITS RELIGIOUS IS SUBJECT TO CONSTITUTIONAL LIMITATIONS ?......28

WHETHER ALL PRACTICES DISCRIMINATORY TO WOMEN, AND ALSO TO MEN, OF

ALL FAITHS WILL BE MADE AN ACT OF DISCRIMINATION CONTRARY TO

CONSTITUTIONAL VALUES, AND PENAL OFFENCES?.......................................................29

PUBLIC TEMPLE AND THE RIGHT TO ENTRY....................................................................29

WHEATHER THE RELIGIOUS BODIES CAN BE ENFORCED TO PROTECT THE

FUNDAMENTAL RIGHTS AND THE ARTICLE 12................................................................29

WHATHER THE NATURE OF THE RIGHT CLAIMED IS ENFORCEAB LE?.....................30

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WHEATHER THE NON-DISCRIMINATORY NATURE OF RIGHT CLAIMED UNDER

ARTICLE 14,15 16, 17 AND 21 IS SUBJECT TO ANY LIMITATION RESPECT TO

RELIGION?.................................................................................................................................30

WHEATHER ANY DISCRIMINATION WITH MEN AND WOMEN IS ESSENTIAL

RELIGIOUS PRACTICES ?.......................................................................................................33

WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF REEMA

AND RIYA, AND THE HIGH COURT OF ARYA PRADESH ERRED IN ACQUITTING

THEM..............................................................................................................................................34

ACT DONE WITH THE INTENTION OF CAUSING SUCH BODILY INJURY AS THE

OFFENDER KNOWS TO BE LIKELY TO CAUSE THE DEATH OF THE PERSON TO

WHOM THE HARM IS CAUSED.............................................................................................34

ILLEGAL ACT DONE WITH THE COMMON INTENTION TO COMMIT OFFENCE, I.E.

CRIMINAL CONSPIRACY........................................................................................................36

FULL CHAIN OF CIRCUMSTANCES IS COMPLETE WHICH IS SUFFICIENT TO

PROVE THE COMMISSION OF OFFENCE, I.E. CIRCUMSTANTIAL EVIDENCE............37

ERRONEOUS JUDGEMENT OF HIGH COURT.....................................................................39

WHETHER ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF RIYA..................41

ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF COMMON INTENTION

......................................................................................................................................................41

MEDICAL EXAMINATION OF VICTIM OF RAPE................................................................43

PRAYER..........................................................................................................................................44

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MEMORIAL ON THE BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

¶ PARAGRAPH

AIR ALL INDIA REPORTER

Amend. AMEND.

AP ARYA PRADESH

Art. ARTICLE

Bom BOMBAY

Cal CALCUTTA

Cons. CONSTITUTION

DPSP DIRECTIVE PRINCIPLES OF STATE POLICY

Govt. GOVERNMENT

HC HIGH COURT

N.K. NORTH KINGONDOM

Sec. SECTION

SC SUPREME COURT

SCC SUPREME COURT CASES

Supp. SUPPLEMENTARY

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UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS
Hon’ble HONOURABLE
V VERSUS
FRs FUNDAMENTAL RIGHTS

LEGISLATION
S.NO. PARTICULARS
1 Constitution of India 1950
2 The Indian Penal Code, 1860 (ACT 45 OF 1860)
3 Code Of Criminal Procedure, 1973 (ACT 2 OF 1974)
4. The Indian Evidence Act, 1872 (ACT 1 OF 1872)

LIST OF CASES

1. Abdul Waheed Khan and Ors. vs. State of Andhra Pradesh


2. Arun Raj vs. Union of India (UOI) and Ors
3. Ashok Kumar v. State of Haryana
4. Bhajan Kaur and Ors. vs. State of Punjab
5. Chetan and Ors. vs. State
6. Durgah Committee, Ajmer v. Syed Hussain Ali
7. Government of NCT of Delhi v. Union of India and Ors.
8. Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors.
9. Khem Karan & Ors v. The State of of U.P.
10. Kiriti Pal and Ors. vs. State of West Bengal and Ors.

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11. Navtej Singh Johar and Ors. v. Union of India and Ors.
12. Noorjehan Safia Niaz and Ors. vs. State of Maharashtra and Ors
13. Paramsivam & Ors vs State Tr.Insp.Of Police
14. Priya Patel v. State of M.P. and Anr.
15. Sri Venkatramana Devaru v. State of Mysore and Ors
16. State of Rajasthan vs. Ram Bharosi and Ors.
17. State of U.P. vs. Satish
18. The State of Maharashtra vs. Babasaheb Maruti Kamble
19. Trupti Prashant Desai and Ors. vs. The State Of Maharashtra

BOOKS
1. D. D. Basu Commentary on The Constitution of India, (8 th Ed., Lexis Nexis Butterworth
Wadhwa Publications, Nagpur, 2008)
2. H .M. Seervai, Constitutional Law of India, (4 th Ed., Universal Law Publishing, New
Delhi).
3. Constitution of India By J.N.Pandey (52nd Edition, Central Law Agency)
4. Human Rights by Justice Palok Basu (Modern Law Publications.)
5. K.D. Gaur, A Textbook on the Indian Penal Code, 4th Edition, 2012, Universal Law
Publishing Co. Pvt. Ltd.
6. Ratanlal & Dhirajlal, Law of Crimes, Vol. 2, 25th Edition, 2004, Bharat Law House, New
Delhi.
7. Glanville Williams, Textbook of Criminal Law, 2nd Edition, Universal Law Publishing Co.
Pvt. Ltd., 1999.
8. K.D. Gaur, Criminal Law: Cases and materials, 6th Edition,2009, Lexis Nexis
Butterworth Wadhwa, Nagpur.
9. Sarkar SC, Code of Criminal Procedure, Vol. 2, 10th Edition, 2012, Lexis Nexis
Butterworth Wadhwa, Nagpur.
10. C.K Thakkar ‘Takwani’, Criminal Procedure, 3rd Edition, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2011.
11. R.V. Kelkar’s, Criminal Procedure, 5th Edition, Eastern Book Company,
Lucknow, 2008
12. Ratanlal and Dhirajlal, The Law of Evidence, 24th Edition, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2011.

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INTERNATIONAL INSTRUMENTS
1. Art. 11, Universal Declaration of Human Rights, 1947 (Adopted on December 10, 1948)
2. Art. 9, International Convention on Civil and Political Rights (Adopted by United Nations General
Assembly on December 16, 1966)

WEB RESOURCES
Web
Serial No Title Address

1 Manupatra www.manupatra.co.in/
2 Lexis Nexis www.lexisnexis.co.in/

3 Live Law www.livelaw.in/


4 SCC Online www.scconline.in/
5 TheWire www.thewire.in/

6 Calcutta HC www.calcuttahighcourt.nic.in/

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DICTIONARIES

Serial No Title

1 Merriam-Webster's Law Dictionary: Legal Terms in Plain English

2 Dictionary of Law - Oxford Reference

3 Black's Law Dictionary

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MEMORIAL ON THE BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

The petitioner in the present writ petition has humbly approached the Hon'ble Court under
Art.321 of the Cons. of Indiana. The present memorandum contains the facts, contentions and
arguments of the present case.
The Appellant have the honour to submit before the Hon‟ble Supreme Court of Indiana, the
memorandum for the Appellant under Article 137 with the provision of Curative Petition of the
Constitution of India read here as under:

Review of judgments or orders by the Supreme Court Subject to the provisions of any law made
by Parliament or any rules made under Article 145, the Supreme Court shall have power to
review any judgment pronounced or order made by it.

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Article 1341 of the Constitution of India describes Appellate jurisdiction of Supreme Court in
regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn
for trial before itself any case from any court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death.

Article 1422 of the Constitution of India describes Enforcement of decrees and orders of
Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be prescribed by or under
any law made by Parliament and, until provision in that behalf is so made, in such manner as the
President may by order prescribe.

The present memorandum sets forth the Facts, Contentions and Arguments in the present case.3

1
Constitution of India
2
Constitution of India
3
Art. 32 of the Constitution of Indiana. which reads as follows:
Remedies for enforcement of rights conferred by this Part-

(1) The right to move the SC by appropriate proceedings for the enforcement of the rights conferred by this
Part is guaranteed

(2) The SC shall have power to issue directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the SC by clause ( 1 ) and ( 2 ), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by
the SC under clause ( 2 )
(4)The right guaranteed by this Art. shall not be suspended except as otherwise provided for by this Cons.

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MEMORIAL ON THE BEHALF OF PETITIONER

STAEMENT OF FACTS

BACKGROUND

Indiana is a country in Central Asia comprising of 7 states. Constitution of Indiana protects


matters of religious doctrine or belief, as well as, acts done in pursuance of religious rituals,
observances, ceremonies and modes of worship. Arya Pradesh is the largest state in Indiana both
in terms of areas and population. 80% of the residents of the state are disciples of Lord
Jogeshwara whose temple is situated at Katra(capital of the state). Lord Jogeshwara is a deity
depicting a „hyper masculine God‟ born out of the union at two male Gods. The deity in the
temple is in form of Yogi or Bramhachari. Since, the deity is in form of Nastik Bramhachari it is
therefore believed that young women between the age of 11 and 51 years should not offer
worship in the temple so that even the slightest deviation from celibacy and austerity observed
by the deity is not caused by the presence of such women.

PROHIBITIONON ENTRY OF WOMEN ACT, 1985 AND ITS EFFECT

Pundit Ram Kishan was the pontiff in Lord Jogeshwara‟s temple. The Parliament of Indiana, by
virtue of power conferred to it through Constitution of Indiana, passed the Lord Jogeshwara Temple
(Prohibition on Entry of Women) Act in 1985. This Act was enforced till 2016. After death of Pt.
Ram Kishan in 2013, Pt. Kali Charan was appointed as the new pontiff. Due to his influential
character and connections with local politicians, his two sons (Bhanu and Kalu) were later appointed
as priests there. Pt. Kali Charan made a divulgation prohibiting women from entry of women in
temple as well as to any other land which belongs to Jogeshwara Akhara. This divulgation was
welcomed by majority. The daughters of Pt. Ram Kishan, Reema and Riya in the name of their NGO
„KADAM EK PEHAL‟ filed a PIL before the Supreme Court seeking issuance of direction against
the Gov. of Arya Pradesh, Lord Jogeshwara Trust and District Magistrate of Katra to ensure entry of
female devotees who were denied entrance on the basis of the Act, customs and usages as

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unconstitutional being violative of fundamental rights guaranteed under the Constitution of Indiana.
The Supreme Court of Indiana in the year 2016 pronounced judgement with 2:1 majority allowing
the petition filed by KADAM. Reema and Riya with other women tried to enter the temple premise.
They were stopped by protestors (both men and women). They were threatened of facing dire
consequences. Pt. Kali Charan directed the other priests Bhawani and Jagga to bring lathis for
teaching a life lessons to the women, particularly Reema and Riya. On 30.12.1 Mrs. Radha (mother
of the two sisters) around 1:00 a.m. informed the police about missing of her daughters and requested
them to lodge an FIR. They denied to lodge FIR but started searching for the sisters. They
dicscovered a suspicious SUV near Mohini Bazar.

Around 5 :30 a.m. Pt. Kali Charan informed about the dead body lying near the temple.The body was
identified as that of Rima and it was sent for post mortem. On the incessant request of Mrs. Radha
police lodged an FIR. On 31.12.2016 Riya‟s body was found from the jungle near Mohini Bazar. The
accused were charged for murder of both sisters. CBI inquiry was ordered into the incident by G.O.I.
The CBI Court found all accused guilty of abduction and murder of sisters and also for the rape of
Riya. The Court sentenced all of them to death. The High Court reversed the order of the Trial Court
and acquitted all of them. An appeal against the order of High Court of Arya Pradesh was filed before
the Supreme Court of Indiana. Pt. Kali Charan also filed a curative petition against the order of
Supreme Court passed in year 2016Hot on the heels of Supreme Court’s much debated and
controversial judgment of December 2016, a petition had been moved before the High Court of
Arya Pradesh in December 2018 by Mr. Ajay Tripathi, a social activist and director of an NGO,
RAAHEE (Regional Association for Awareness in Health, Education, and Environment), seeking
an end to all practices discriminatory to women and also to men of all faiths and make the act of
discrimination a penal offence. The Apex Court of the country is satisfied that this writ petition
also involves substantially the same question of law of general importance and has withdrawn it
from the High Court for disposing it off by itself (WP. No. 1008 of 2018). The prayers which the
petitioner had made to ensure an end to the discriminatory religious practices are:
i. Direction to the centre to ensure that menstruating/non-menstruating women of any religion
can enter and pray at Zoroastrian Fire Temple and Temple of Silence.

ii. To ensure that women of any religion can enter and pray at men-only temples
anywhere and allow men to pray at women-only temples anywhere in Indiana.

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iii. Ensuring that women of any religion can enter and pray at mosques along

MEMORIAL ON THE BEHALF OF PETITIONER

with men on Fridays.

iv. To ensure that women of Hindu religion can observe fast, enter in kitchen, offer prayers or to
go to any place during menstruation.

v. Ensuring that women professing Hinduism/Islam/Christianity or any other religion can be


ordained to be a Pujari/Purohit/Head/Priest/Bishop/Decan as per their respective religions.

vi. Ensuring that act of non-ordination to above mentioned will be held unconstitutional and
attract penal provisions

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MEMORIAL ON THE BEHALF OF PETITIONER

STATEMENT OF ISSUES

ISSUE I

Whether prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of Indiana,
and the claim for the exclusion of women from religious worship founded in religious text,
is subordinate to the Constitutional values of Liberty, Dignity and Equality?
ISSUE II

Whether all practices discriminatory to women, and also to men, of all faiths will be made
an act of discrimination contrary to Constitutional values, and penal offences?
ISSUE III

Whether the accused are guilty of abduction and murder of Reema and Riya, and the High
Court of Arya Pradesh erred in acquitting them?

ISSUE IV

Whether all accused are guilty for committing rape of Riya?

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MEMORIAL ON THE BEHALF OF PETITIONER

SUMMAMRY OF ARGUMENTS
 WHETHER PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM
ENTERING LORD JOGESHWARA TEMPLE IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF
INDIANA, AND THE CLAIM FOR THE EXCLUSION OF WOMEN FROM
RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS TEXT, IS SUBORDINATE
TO THE CONSTITUTIONAL VALUES OF LIBERTY, DIGNITY AND
EQUALITY?

The right claimed by the Petitioners herein is the freedom of conscience and the right to practice
and profess their religion, constitutionally recognized under Article 25 of the Constitution of
India. This right to practice religion encompasses the liberty of belief, faith and worship, pithily
declared as a constitutional vision in the Preamble to the Constitution of India. The right of a
woman to visit and enter the Temple as a devotee of the deity, as a believer in the Hindu faith, is
an essential aspect of her right to worship without which her right to worship is significantly
denuded. Article 25 pertinently declares that all persons are ‘equally’ entitled to freely practise
religion. This implies not just inter-faith, but intra-faith parity. Therefore, the primary right
under Article 25(1) is a non-discriminatory right and is thus available to men and women
professing the same faith. By following this type of practices against the women it’s also
violating the article 14, 15, 16 as well as article 17 and 21 of Indian constitution

 WHETHER ALL PRACTICES DISCRIMINATORY TO WOMEN, AND ALSO TO


MEN, OF ALL FAITHS WILL BE MADE AN ACT OF DISCRIMINATION
CONTRARY TO CONSTITUTIONAL VALUES, AND PENAL OFFENCES?

The primary right of entry of a woman and men devotee being an essential and integral part of
her right to worship, the right to exclude her must be treated as the exception. The Court has
stated the test to determine whether a practice is essential to a religion is to find out whether the
nature of the religion will be changed without that part or practice. If the taking away of that part
or practice would result in a fundamental change in the character of that religions or in its belief,
then such part could be treated as an essential or integral part. In order to claim protection under
the doctrine of essential religious practices, this exclusionary practice being claimed by the
religious bodies must be shown as so fundamental to the religious belief, without which the
religion will not survive. This Hon’ble Court has specifically cautioned against “extraneous and

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unessential accretions” to essential religious practices from being protected under Article 26. So
which practices are not essential and part of the religion must be made penal offences.

MEMORIAL ON THE BEHALF OF PETITIONER

 WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF


REEMA AND RIYA, AND THE HIGH COURT OF ARYA PRADESH ERRED IN
ACQUITTING THEM?

It is submitted before the Hon‟ble Court of law that the accused are guilty of abduction
and murder of Reema and Riya under Section 302, 364, 34 and 120B of the Indian Penal
Code, 1860. When Reema and Riya tried to enter the temple premise on 24.12.2016 after
the judgement of the SC came in 2016, they were stopped and threatened by the priest of
the temple of dire consequences. In the evening of 27.12.16 an FIR was lodged by Jagga
Ram Manik Chand regarding theft of his SUV. He mentioned about his co-priest Bhanu
and Kalu having a duplicate key of his car. At 1:00a.m. on 30.12.16, Mrs. Radha
requested police to lodge a missing complaint as her daughters had not returned home.
Though FIR was not registered but police went to search the twin sisters and discovered a
suspicious SUV in an abandoned jungle, near Mohini Bazar. The same day around
5:30a.m. dead body of Reema was discovered near the premise of the Lord Jogeshwara
Temple. Riya‟s dead body was discovered from the jungle near Mohini Baar on 31.12.16.
In the FIR lodged by Mrs. Radha on 29.12.16 said that she believes that her daughters
were abducted and killed by Pt. Kali Charan and his co-priests of the Lord Jogeshwara
Temple under the colour of revenge and enmity as they were protesting against them to
implement the judgement of the SC dated 23.12.16 (KADAM EK PAHAL v. UOI).
It is humbly submitted before the court of law that the High Court of Arya Pradesh erred
in acquitting all the accused. In spite of all the evidences against the accused, the post-
mortem report of Reema (Annexure 2-A), the post- mortem report of Riya (Annexure 2-
B) and the CBI investigation report, still the High court reversed the order of the Trial
Court and acquitted all the accused on the grounds that prosecution had failed to establish
its case beyond all reasonable doubts.

 WHETHER ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF


RIYA?
Section 10 of Evidence Act runs inter alia, “Things said or done by conspirator in
reference to common design.--Where there is reasonable ground to believe that two or
more persons have conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons in reference to their common

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intention, after the time when such intention was first entertained by any one of them, is a
relevant fact as against each of the persons believed to so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the purpose of showing that any
such person was a party to it.”
In the present case, the sisters were abducted by the priests of the Temple. Later their
dead bodies were found with severe bodily injuries and Riya was gang raped. Also as per
the post-mortem report of Riya( Annexure 2-B),the vaginal examination describes
vaginal injuries suggesting forceful penetration by more than 2 persons. The hymen was
found to be torn. Mucosa of the stomach, small intestine and large intestine were found
congested. 20cm of cylindrical rod has been inserted into it which has caused the hymen
tear into 3‟O clock to 8‟0 clock in position. This proves that all accused are guilty of
committing rape of Riya.

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MEMORIAL ON THE BEHALF OF PETITIONER

ARGUMENTS ADVANCED(ISSUE-1)

WHETHER PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM


ENTERING LORD JOGESHWARA TEMPLE IS VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF
INDIANA, AND THE CLAIM FOR THE EXCLUSION OF WOMEN FROM
RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS TEXT, IS SUBORDINATE
TO THE CONSTITUTIONAL VALUES OF LIBERTY, DIGNITY AND
EQUALITY?

WHETHER RELIGIOUS DISCRIMINATION AGAINST WOMEN DUE TO


BIOLOGICAL/PHYSIOLOGICAL FEATURE?

 That since religion started to take shape, women were discriminated in one form or the
other. All the three Abrahamic religions namely Judaism, Christianity & Islam blamed
‘Eve’ for the whole disaster. The women as a whole pass through three stages of
discriminations: Firstly, on birth & during child hood upto the age of 10-12 years; and
secondly, during the age between 10 to 55 years when a woman goes through menstrual
cycles when she is capable of procreating; and thirdly, at the fag end of her life.
 Out of the three stages of women discrimination, the first two stages are very crucial. But
for the purpose of present case, we are concerned with the second stage of discrimination
when most of the religions take women as impure during menstruation.

 Discrimination during menstruation was pervasive in almost every society. Even Eve in
Eden garden was too blamed when she attained puberty and not otherwise. In Old
Testament text contained in Leviticus 15,19-30, following prohibition have been
prescribed:

a. “When a woman has a discharge of blood, and blood flows from her body, the
uncleanness of her monthly periods shall last for seven days.”
b. “Anyone who touches her will be unclean until evening.”
c. “ Any bed she lies on in this state will be unclean; any seat she sits on will be
unclean. Anyone who touches her bed must wash his clothing and wash himself

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and will be unclean until evening. If there is anything on the bed or on the chair
on which she sat, anyone who touches it will be unclean until evening.”
d. “If a man sleeps with her, he will be affected by the uncleanness of her monthly
periods. He shall be unclean for seven days. Any bed he lies on will be unclean.”
e. “If a woman has a flow of blood for several days outside her period or if the
period is prolonged, during the time the flow lasts she shall be in the same state of
uncleanness as during her monthly periods.”
f. “When she is cured of her flow, she will let seven days pass then she will be
clean. On the eighth day she is to take two turtle doves or two young pigeons and
bring them to the priest at the entrance of the Tent of Meeting. With one of them
the priest is to offer a sacrifice for sin and with the other a holocaust. This is the
way in which the priest will perform the rite of atonement over her before Yahweh
for the flow that caused her uncleanness.”
g. “The children of Israel are to be warned lest they defile the tabernacle that is set
among them.”4

 In Hindu religion, there are various scriptures where women were discriminated during
monthly periods. “A Brahmana having touched a dog, a Sudra, or any other beast, or a
woman in her menses, before washing his face after a meal, shall regain his purity by
fasting for a day, and by taking Panchgavyam.”5
 In Markandeya Purana After touching a menstruous woman, a horse, a jackal, and
other animals, or a woman recently delivered of a child, or people of low caste, one
should bathe for the sake of purification…” 6
 Similarly, in Brahma Purana “…A person who is conversant with righteousness
becomes purified by taking a bath if he touches these: a medicant who is not worthy of
being fed (?), a heretic, a cat, an ass, cook, a fallen man, an outcaste (a person ostracised),
a Candala and those who bear dead bodies, a country pig and a woman in her monthly
course…”7
 In Kurma Purana II. “One shall avoid an article once smelt by a dog and cooked again.
So also the article seen by a Candala, or a woman in her menses, or smelt by a cow, or
seen by a fallen men, shall be avoided.”8

POSITIVE APPROACH ON THE RELIGIOUS DISCRIMINATION

4
Leviticus 15,19-30
5
Garuda Purana (ch. 231)
6
Markandeya Purana 35.26-28
7
Brahma Purana 113.140-7
8
Kurma Purana II.17.26

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There are religions where women were respected during menstruation. For example, in
Shaktism, the Earth's menstruation is celebrated during the Ambubachi Mela, an annual fertility
festival held in June in Assam. During Ambubachi, the annual menstruation course of the
goddess Kamakhya is worshipped in the Kamakhya Temple. The temple stays closed for three
days and then reopens to receive pilgrims and worshippers. It is one of the most important
pilgrimage sites in the world, attracting millions of visitors each year, particularly for Ambubachi
Mela which draws upwards of 100,000 pilgrims per day during the 4-day festival.

In South India, girls who experience their menstrual period for the first time are given presents
and celebrations to mark this special occasion.

Similarly, Guru Nānak, the founder of Sikhism, condemned the practice of treating women as
impure while menstruating. In Sikhism, the menstrual cycle is not considered a pollutant.9

Similalry, Bahá'u'lláh, the founder of the Bahá'í Faith, in the Kitáb-i-Aqdas abolished all forms of
ritual impurity of people and things and stressed the importance of cleanliness and spiritual
purity. Menstruating women are encouraged to pray and are not required to fast; they have the
(voluntary) alternative of reciting a verse instead.

That apart from discrimination due to physiological factor, women in general are discriminated
in almost all religions. Since inception these religions did not believe in ‘gender equality’. While
Gita states “Mamhi Parth Vyapastriya, Yep syuh Pap-yonayah; striyo vaishyd tatha sudras te pi,
yanti param gatima (see Chapter-IX, Text 32 Bhagwat Gita) i.e. women, vaisya, sudras etc.
coming out of sinful yoni also gets salvation on surrendering to Supreme.

Similarly, in Tulsidas’ Ramayan it is stated “Dhol Ganvar Sudra pashu Nari;


)
Sakal Tarna ke Adhikari [(58(3) (Sundar Khand)]. Similarly, in (5A) (Arnya Khand) it states “a
woman is impure by her very birth; but she attains a happy state (hereafter) by nature serving
her lord. (It is due to her loyalty to her husband ). In Manu Smriti (33. “Na asti strinam………”
– 9/18): While performing namkarm and jatkarm, Vedic mantras are not to be recited by women,
because women are lacking in strength and knowledge of Vedic texts. Women are impure and
represent falsehood. Manu Smriti 4.208 Nor that at which the slayer of a learned Brahmana has
looked, nor that which has been touched by a menstruating woman, nor that which has been
pecked at by birds or touched by a dog.

WOMEN NEVER DENIED ENTRY IN TEMPLE:


9
[Singh, Kanwarjit (1989), "Chapter V - Human Rights", Political Philosophy of the Sikh Gurus.]

23 | P a g e
Although there had been discrimination against women in almost all religions including Hindu
religion but there was no ban on entry of women in temple in any religion specially in Hindu
religion specially on the basis of biological factor. After the Hindu religion was stonified into
idolism confined to temples, there are references of women entry in Temple. The most glaring
example of women entry in Temple goes back to post Vedic period around 1000 BC to 500 BC,
when we find references of women entry in two epics namely Ramayan & Mahabharat when
both Lord Rama and Lord Krishna had met their respective spouses in Temple before their
marriages. While Sita visited Girija Temple near lake to offer prayer to Goddess10
while Lord Krishna has eloped with Rukmani from the back of Temple ‘Indrani’ after she has
offered prayers in the said Temple when her brother was forcing her to marry someone else.
Thus, starting from Hindu Revivalism in 8th Century till Royal, there was although some
disputes with respect to certain castes entering the Hindu Temples but there is no trace in entire
history of any restriction on entry of women. After Shaktism, it was a daily routine visit of
woman in Goddess Temple.

In Islam too, initially Mohd. Prophet has said that prayer at Mosque is rewarded 21 times more
than prayer at home. However, when asked how a household woman can pray five times in
Mosque who has to look after children, Mohd. Prophet retreated and said that women can pray at
home meaning they can get same reward of 21 times by praying at home. This advice of Mohd.
Prophet has been subsequently misconstrued by hardliners to restrict entry of women in some
Mosques. Similarly, a simple advice in case of Sabarimala has been converted into a crude
practice unwarranted and impermissible in Hindu law.

The petitioner has appeared before the Hon‟ble Supreme Court in response to the Curative
Petition filed by Pt. Kali Charan against the order of Supreme Court passed in year 2016
allowing entry of women into Lord Jogeshwara Temple. (CP. No. 111 of 2018). Article 14 of The
Constitution of India 1949 reads as “Equality before law The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” Article 15
of The Constitution of India 1949 reads as “Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard to
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public.”
10
Gauri [Ramayan – ‘Balkhand’ 227(1)]

24 | P a g e
Article 21 of The Constitution of India 1949 reads as “Protection of life and personal liberty No
person shall be deprived of his life or personal liberty except according to procedure established
by law.” Article 25 of The Constitution of India 1949 reads as “ Freedom of conscience and free
profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.”
It is humbly submitted before this Court that the petition filed by the petitioner is violation of the
Fundamental Right enshrined under the Constitution of India under Article 14, 15, 21, 25 and
these grounds; [1.1] Prohibition of discrimination on ground of sex is violation of Fundamental
Rights of women; [1.2] discrimination in matters of entry to temples is neither a ritual nor a
ceremony associated with Hindu religion; [1.3] the requirement of constitutional conformity is
inbuilt and if a custom or usage is outside the protective umbrella, the law would certainly take
its own course.

Prohibition of discrimination on ground of sex is violation of Fundamental rights of


women.
Article 14 of the Indian Constitution says that the State not to deny to any person equality before
law it also commands the State not to deny the equal protection of the laws Equality before law
prohibits discrimination. It is a negative concept. The concept of equal protection of the laws
requires the State to give special treatment to persons in different situations in order to establish
equality amongst all.
In Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors. 11 it was held
by Supreme Court of India held by a 4:1 majority that the practice of restricting entry to women
aged between 10-50 years to be unconstitutional. Chief Justice Dipak Misra has observed in his
judgment, “The dualism that persists in religion by glorifying and venerating women as
goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of
devotion has to be abandoned. Such a dualistic approach and an entrenched mind set results in
indignity to women and degradation of their status.”
So in the present case, discrimination in matters of entry to temples is neither a ritual nor a
ceremony associated with Hindu religion as this religion does not discriminate against women

11
Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors. (28.09.2018 - SC)

25 | P a g e
but, on the contrary, Hindu religion accords to women a higher pedestal in comparison to men
and such a discrimination is totally anti-Hindu, for restriction on the entry of women is not the
essence of Hindu religion.

26 | P a g e
MEMORIAL ON THE BEHALF OF PETITIONER

27 | P a g e
In Noorjehan Safia Niaz and Ors. vs. State of Maharashtra and Ors 12 PIL had challenged a
move by the Haji Ali Dargah Trust prohibiting women from entering the sanctum sanctorum of
the shrine, built in 1431.The shrine comprises the grave of Pir Haji Ali Shah Bukhari, a Muslim
saint revered by all communities. The Bombay High Court order lifting the ban on women from
entering the sanctum sanctorum of the renowned Muslim shrine in South Mumbai. The High
Court on August 26 had held that the ban imposed by the Trust on women from entering the
sanctum sanctorum of the Haji Ali Dargah, contravened Articles 14, 15 and 25 of the
Constitution and said women should be permitted to enter the sanctum sanctorum like men.
So in the present scenario, women after menarche up to menopause are not entitled to enter the
temple and offer prayer at any time of the year. Pundit Ram Kishan and millions of people of
Arya Pradesh firmly believe and promote this notion that if the women between the age group of
11 to 51 years are allowed to offer prayers in the temple then celibacy and austerity observed by
Lord Jogeshwara will be curtailed and the temple will lose its ancient cultural and religious
significance. This is clearly a discrimination under articles 14,15 and 25 of the constitution.

In Government of NCT of Delhi v. Union of India and Ors. 13 the Delhi high held that
Constitutional morality in its strictest sense of the term implies strict and complete adherence to
the constitutional principles as enshrined in various segments of the document. When a country
is endowed with a Constitution, there is an accompanying promise which stipulates that every
member of the country right from its citizens to the high constitutional functionaries must idolize
the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that
the Constitution is the indispensable foundational base that functions as the guiding force to
protect and ensure that the democratic setup promised to the citizenry remains unperturbed.

Elaborating further, in Navtej Singh Johar and Ors. v. Union of India and Ors 14 the court
observed that the concept of constitutional morality is not limited to the mere observance of the
core principles of constitutionalism as the magnitude and sweep of constitutional morality is not
confined to the provisions and literal text which a Constitution contains, rather it embraces
within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive
society, while at the same time adhering to the other principles of constitutionalism. It is further
the result of embodying constitutional morality that the values of constitutionalism trickle down
and percolate through the apparatus of the State for the betterment of each and every individual
citizen of the State4.
So in the present case it is held that prohibition of discrimination on ground of sex is violation of
Fundamental Rights of women.

12
Noorjehan Safia Niaz and Ors. vs. State of Maharashtra and Ors(26.08.2016) BOMHC
13
Government of NCT of Delhi v. Union of India and Ors. MANU/SC/0680/2018 : (2018) 8 SCALE 72
14
Navtej Singh Johar and Ors. v. Union of India and Ors. MANU/SC/0947/2018 : (2018) 10 SCALE 386

28 | P a g e
DISCRIMINATION IN MATTERS OF ENTRY TO TEMPLES IS NEITHER A RITUAL
NOR A CEREMONY ASSOCIATED WITH HINDU RELIGION.

In Durgah Committee, Ajmer v. Syed Hussain Ali15 Justice Gajendragadkar clarified that
Clauses (c) and (d) of Article 26 do not create any new right in favour of religious denominations
but only safeguard their rights. Similarly, in matters of religious affairs, it is observed that the
same is also not sacrosanct as there may be many ill-practices like superstitions which may, in
due course of time, become mere accretions to the basic theme of that religious denomination.
In the present case after receiving a copy of judgment, Reema and Riya with some other women
tried to enter Lord Jogeshawara Temple for offering their prayers. On the way from their
residence to temple they were stopped by protesters (including men and women) who were
shouting that „IF ANY WOMEN WILL STEP INTO THE TEMPLE OF LORD JOGESHWARA
SHE WILL FACE DIRE CONSEQUENCES AND THEIR ENTIRE FAMILY WILL BE KILLED’.
They further indicated Reema and Riya and shouted that they are trying to become leaders and
they are the ones who are responsible for the entire chaos. This showed that the judgment of the
apex court was not respected by the accused party.
In Sri Venkatramana Devaru v. State of Mysore and Ors.16 it was held that a religious
denomination cannot completely exclude or prohibit any class or Section for all times. All that a
religious denomination may do is to restrict the entry of a particular class or Section in certain
rituals.

So in the present case it was believed that young women between the age of 11 to 51 years
should not offer worship in the Lord Jogeshwara temple so that even the slightest deviation from
celibacy and austerity observed by the deity is not caused by the presence of such women.

THE REQUIREMENT OF CONSTITUTIONAL CONFORMITY IS INBUILT AND IF A


CUSTOM OR USAGE IS OUTSIDE THE PROTECTIVE UMBRELLA, THE LAW
WOULD CERTAINLY TAKE ITS OWN COURSE.

Discrimination in matters of entry to temples is neither a ritual nor a ceremony associated with
Hindu religion as this religion does not discriminate against women but, on the contrary, Hindu
religion accords to women a higher pedestal in comparison to men and such a discrimination is
totally anti-Hindu, for restriction on the entry of women is not the essence of Hindu religion.
It is a universal truth that faith and religion do not countenance discrimination but religious
practices are sometimes seen as perpetuating patriarchy thereby negating the basic tenets of faith
and of gender equality and rights. The societal attitudes too centre and revolve around the
patriarchal mindset thereby derogating the status of women in the social and religious milieu. All

15
Durgah Committee, Ajmer v. Syed Hussain Ali MANU/SC/0063/1961 : (1962) 1 SCR 383
16
Sri Venkatramana Devaru v. State of Mysore and Ors. MANU/SC/0026/1957 : (1958) SCR 895 : 1958

29 | P a g e
religions are simply different paths to reach the Universal One. Religion is basically a way of life
to realize one's identity with the Divinity. However, certain dogmas and exclusionary practices
and rituals have resulted in incongruities between the true essence of religion or faith and its
practice that has come to be permeated with patriarchal prejudices. Sometimes, in the name of
essential and integral facet of the faith, such practices are zealously propagated.

In Trupti Prashant Desai and Ors. vs. The State Of Maharashtra 17 the Bombay High Court
observed that no law bars entry of women in places of worship, and hence no gender
discrimination in this regard should be tolerated. “Ultimately, it is the fundamental right of a
woman and the government's fundamental duty to protect their (women) right,” a Division
Bench comprising Chief Justice D.H. Waghela and Justice M.S. Sonak was quoted as saying.
“There is no law that prevents entry of women in any place. If you allow men then you should
allow women also. If a male can go and pray before the deity then why not women? It is the state
government‟s duty to protect the rights of women,” the Division Bench had rapped the
authorities.

So in the present case, it was believed that if the women between the age group of 11 to 51 years
are allowed to offer prayers in the temple then celibacy and austerity observed by Lord
Jogeshwara will be curtailed and the temple will lose its ancient cultural and religious
significance but the requirement of constitutional conformity is inbuilt and if a custom or usage
is outside the protective umbrella, the law would certainly take its own course.
The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty,
Equality and Fraternity can only be achieved through the commitment and loyalty of the organs
of the State to the principle of constitutional morality.

INDIVIDUAL RIGHT TO WORSHIP VS. DENOMINATIONAL RIGHT TO MANAGE


ITS RELIGIOUS AFFAIRS:
The Universal Declaration of Human Rights passed by United Nations General Assembly as on
10th Dec., 1948 provides for right to worship as under: “Everyone has the right to freedom of
thought, conscience and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance.” Again, the individual right to
worship has been well recognized in our constitution. The very Preamble of our constitution
starts with:

17
Trupti Prashant Desai and Ors. vs. The State Of Maharashtra (13.12.2018 - SC Order) : MANU/SCOR/41138/

30 | P a g e
PREAMBLE OF CONSTITUTION: LIBERTY OF THOUGHT, EXPRESSION, BELIEF,
FAITH AND WORSHIP
That while providing for liberty of thought, expression, belief, faith and worship in the Preamble
of our constitution, the constitution makers incorporated every such usage or custom within the
definition of law as defined in Article 13 of the Constitution made making it subject to
fundamental rights enshrined in Part III of the Constitution. The relevant extract of Article 13 of
the Constitution is quoted as under:
“Article 13: Laws inconsistent with or in derogation of the fundamental rights.-
(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void.
(3) In this article, unless the context otherwise requires.-
"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages
having in the territory of India the force of law;
"laws in force" includes laws passed or made by Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or
in particular areas.
(1) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368.”

The above definition of ‘law’ and ‘laws in force’ is not exhaustive but only illustrative in nature.
The expression ‘includes’ does not confine it to what has been stated therein. In any case, so far
as usage or customary laws are concerned the same have been included within the ambit of law
as provided under Article 13.

Whether the impugned act is violating the fundamental right given under article 25 of the
constitution
That after incorporating usage or custom within the ambit of ‘law’,the constitution makers
enshrined two rights to practice or profess religion under Chapter III of the Constitution. While
Article 25 givesright to every individual to freedom of conscience and the right to freely profess,
practice and propagate religion, Article 26 gives right to every religious denomination or any
section thereof to establish any religious institution with right to manage its religious affairs and
to own property and its management.

Article 25 reads as under:


Article. 25: Freedom of conscience and free profession, practice and propagation of religion-
(1) Subject to public order, morality and health and to the other provisions this Part, all persons
are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion.

31 | P a g e
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.”
But this right carry with it right to worship in the temple, mosque or church. H.M. Seervai in his
Book ‘Constitutional Law of India’ has very aptly observed at page 929 (Third Edition, Vol.1,
1983): “12.50 It is obvious that religion has both a personal and an institutional side. No doubt,
men can pray in their homes, “and hit the heaven with their prayers”; but throughout the ages
men have worshipped in temples, churches, mosques and the like. In practice, the personal
right is inseparable from the institutional; and a person would justify complain that he had
been denied the freedom of religion if the right of private worship was conceded but the
right of public worship was denied. Articles 25 to 28 recognise this two fold aspect of
religion.”

WHETHER ARTICLE 26 WHICH ASSURE TO MANAGE AND MAINTAIN THE


AFFAIRS OF ITS RELIGIOUS IS SUBJECT TO CONSTITUTIONAL
LIMITATIONS ?

That on the other hand, simultaneously, constitution makers have conferred upon every religious
denomination or any section of society right to establish, maintain & manage institutions for
religious and charitable purposes including right to acquire property and administer it in
accordance with law. Article 26 is quoted as under:

Article 26: Freedom to manage religious affairs- Subject to public order, morality and health,
every religious denomination or any section thereof shall have the right –
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law. The aforesaid right thus could be sub-
divided broadly into three categories:
(i) Right of any section of society or any religious denomination to create any religious
institutions
(ii) Right of such religious institution so created to manage its religious affairs.
(iii) Right of such religious institutions so created to own and manage property. In actual fact, the
draft Article so passed earlier by the Constituent Assembly in May, 1947 had basically three
clauses as under:
“Every religious denomination or a section thereof shall have the right
(1) to manage its own affairs in matters of religion and subject to law
(2) to own. Acquire and administer property and
(3) to establish and maintain religious and charitable institutions.”

32 | P a g e
Thus, initially there were broadly three categories. However, subsequently on Shri Ayyanagr’s
suggestion, the said draft article has been changed to the present one. As already stated above, all
the three categories are interdependent upon each other; viz if any religious denomination or any
section of society has set up any religious institution under clause (a) then the same shall be
meaningless if it cannot manage its religious affairs. Such religious affairs cannot be managed in
abstract unless it is empowered to own movable or immovable property and so further right has
been conferred to own property and manage it. Thus, all clauses (a) to (d) convey same right
upon religious denomination subject to certain regulatory restrictions.

That the other relevant references are discussed combindly with the issue no. 2.

ISSUE NO -2

WHETHER ALL PRACTICES DISCRIMINATORY TO WOMEN, AND


ALSO TO MEN, OF ALL FAITHS WILL BE MADE AN ACT OF
DISCRIMINATION CONTRARY TO CONSTITUTIONAL VALUES,
AND PENAL OFFENCES?

PUBLIC TEMPLE AND THE RIGHT TO ENTRY

The Lord Jogeshwara Temple, [hereinafter ‘the Temple’], is a public temple, where members of
the public are admitted as a matter of right. It is used as a place of public worship and entry
thereto is not restricted to any particular denomination or part thereof. The Temple accepts
offerings and donations from the public, which is utilised for religious activities in the temple
and for its upkeep. The Temple is managed and administered by a statutory body- The Board.
The public character of the temple is an important determinant in adjudicating claims of entry.
The essential feature of a public temple is that by its very character it is established and
maintained for the benefit of the worshippers or devotees. From this character of the temple
emanates the right of devotees to enter it for purposes of darshan or worship. This universal right
of entry is not a permissive right dependent upon the temple authorities, but a legal right in the
true sense of the expression. 18

18
1-Deoki Nandan v. Murlidhar, (1956) SCR 756 [Pgs. 761-762]
2- Radhakanta Deb v. Commissioner of Hindu Religious Endowments, (1981) 2 SCC 226 [para 6, 7 and 14]
3- Nar Hari v. Badri Nath Temple Committee, (1952) SCR 849 [Pgs. 860-861]

33 | P a g e
WHEATHER THE RELIGIOUS BODIES CAN BE ENFORCED TO PROTECT THE
FUNDAMENTAL RIGHTS AND THE ARTICLE 12
The Board which administers the Temple, is a statutory body created under the any act, It
receives an annual payment from the Consolidated Fund of the State under Article 290A of the
Constitution of India. Therefore, the bdy would squarely fall within the scope of ‘other
authorities’ under Article 12, and is duty bound to give effect to the fundamental rights in Part III
of the Constitution of India.

WHATHER THE NATURE OF THE RIGHT CLAIMED IS ENFORCEAB LE?


The right claimed by the Petitioners herein is the freedom of conscience and the right to practice
and profess their religion, constitutionally recognized under Article 25 of the Constitution of
India. This right to practice religion encompasses the liberty of belief, faith and worship, pithily
declared as a constitutional vision in the Preamble to the Constitution of India. The right of a
woman and men to visit and enter the Temple as a devotee of the deity, as a believer in the
Hindu faith, is an essential aspect of her right to worship without which her right to worship
is significantly denuded. Article 25 pertinently declares that all persons are ‘equally’ entitled
to freely practise religion. This implies not just inter-faith, but intra-faith parity. Therefore,
the primary right under Article 25(1) is a non-discriminatory right and is thus available to
men and women professing the same faith.

WHEATHER THE NON-DISCRIMINATORY NATURE OF RIGHT CLAIMED UNDER


ARTICLE 14,15 16, 17 AND 21 IS SUBJECT TO ANY LIMITATION RESPECT TO
RELIGION?
The importance of situating the non-discriminatory content of this right in conscience and faith is
to understand it as an indispensable part of the right. This pursuit of liberty of belief, faith and
worship of a devotee, as protected by Art. 25, is inherently non-discriminatory and is distinct
from the state’s power under Art. 25(2)(b). That is to say, such equal right of worship is not
dependent on the will of the State to provide for social welfare or reform. Even in the absence of
a temple entry legislation, a devotee has a justiciable right to equal treatment under Art. 25(1).

ARTICLE 15
This non-discriminatory right is a necessary concomitant of the right to equality guaranteed
under Articles 15 and 17 and of the dignity of women devotees under Article 21.
The constitutional vision is to prohibit practices of exclusion on the basis of any of the
proscribed categories [best illustrated by Article 15 (1)] along which axis, historically, exclusion
was practised. Public temples, being centres of devotion and worship, apart from being cultural
focal points, cannot be said to be outside the purview of ‘places of public resort’ in Article 15(2)
(b). This principle of non-exclusion will perhaps be subject to one caveat, i.e., faith in that
temple or deity.19

19
Indian Medical Association v. Union of India, (2011) 7 SCC 179 [para 185-187]

34 | P a g e
The exclusionary practice in the present case, whether couched as regulation or restriction,
results in discrimination against women as a “class”. It is submitted that when a practice
excludes a significant section of adult women, it is futile to say that women, as a class, are not
excluded. It is also not open to the Respondents to contend that this is not discrimination “only”
within the grounds of sex, because the purported reason for exclusion is the biological feature of
menstruation. This argument, in effect, amounts to saying that the ground of discrimination is not
just sex, but in fact, sex plus a biological factor. It is respectfully submitted that if the additional
factor emanates from the characteristics of that particular sex, then the additional factor only
reinforces the discrimination on the ground of sex and therefore becomes discrimination on the
ground of only sex. A reading of paragraphs 38 and 43 of the judgment in S. Mahendran v.
Secretary, Travancore Devaswom Board,20 [Hereinafter, “Mahendran”] makes it clear that the
prohibition is in fact based on physiological characteristics. It is therefore submitted that in
adjudging the infraction of a fundamental right, it is the “impact test” which is always applied by
this Hon’ble Court, and by this test women as a class are excluded. 21

ARTICLE 17
It is submitted that the constitutional intent in keeping the understanding of untouchability in
Article 17 open-textured was to abolish all practices based on the notion of purity and pollution.
This article proscribes untouchability ‘in any form’ as prohibited. The exclusion of menstruating
women from religious spaces and practices is no less a form of discrimination than the exclusion
of oppressed castes.
While the Constituent Assembly left it to the Parliament to define untouchability (Volume III,
Debate on Tuesday, the 29th April, 1947), the Parliament refrained from having a straitjacket
definition of “untouchability” in the Protection of Civil Rights Act, 1955 (hereinafter “The Civil
Rights Act”)
Section 3 of the Act provides for punishment for enforcing religious disability on the ground of
untouchability. A reading of section 3 demonstrates that the prevention of entry and the
prevention of worship are separately classified as offences. The phrase “equally entitled to” in
Article 25(1) finds resonance in Section 3(a) of the Civil Rights Act which criminalizes
exclusion of people to those places which are “open to other persons professing the same
religion, or any section thereof, as such person” and prevention of worship “in the same manner
and to the same extent as is permissible to the other persons professing the same religion or any
section thereof, as such person”. Notably, ‘place of public worship’ is defined in Section 2(d) of
the Act to mean, inter alia, a place “by whatever name known belonging to any religious
denomination or any section thereof, for the performance of any religious service…”. It has
already been demonstrated that the Temple is a public temple, and irrespective of its
denominational character, it cannot prevent the entry of any devotee aspiring to enter and
worship.
Section 7(c) of the Act criminalizes the encouragement and incitement to practice untouchability
in “any form whatsoever”. Explanation II states that any person who justifies the practice of
untouchability “whether on historical, philosophical or religious grounds or on the ground of
20
AIR 1993 Ker 42
21
Bennet Coleman& Co. &Ors. V. Union of India &Ors. (1972) 2 SCC 788 [Para 42]

35 | P a g e
any tradition of the caste system or on any other ground” is deemed to have incited
untouchability. Untouchability cannot be understood in a pedantic sense, but must be understood
in the context of Civil Rights Act, to include any exclusion based on notions of purity and
pollution.
In the context of political freedom and liberties, this Court has interpreted Articles 14, 19 and 21
as a triangulated code. In terms of the right against discrimination, in public places of worship,
Articles 17, 15(2)(b) and 25(2)(b) form a similar code. Article 17 is the compendious right,
Articles 15(2)(b) and 25(2)(b) imbue the right with specificity 22. The essence of the right against
exclusion on engendered notions of purity and pollution is the acknowledgment of the dignity of
the individual which has now come to be established as an indispensable part of Article 21 by
virtue of the judgment of this court in Justice (Retd.) Puttaswamy v. Union of India [(2017) 10
SCC 1 para 543 at page 611].23
The exclusionary practice, in its implementation, results in an involuntary disclosure by women
of both their menstrual status and their age. It would require all women pilgrims, irrespective of
their age, to disclose by implication their personal and biological information viz. fertility,
menstrual routine etc. This forced disclosure violates the right to dignity and privacy embedded
in Art. 21.

ARTICLE 25(2)(b)
14. Article 25(2)(b) is not a mere enabling provision, but is a substantive right. Article 25(2)(b)
in so far as it creates an exception for laws providing for social reform or throwing open of
Hindu religious institutions of a public character to all classes and sections of Hindus, embodies
the constitutional intent of abhorring exclusionary practices. It does not merely seek to prevent
exclusionary practices on the basis of caste only, as is commonly understood. As is true with any
right-restriction binary in Part III, the right must be broadly construed and a narrow construction
is to be given to the exception.24

The phrase “dignity” appears in the Constitution at three places, firstly in the Preamble, secondly
in Article 39(f) and thirdly in Article 51A(e) while enlisting the duty to denounce practices
derogatory to the dignity of women. It is noteworthy that in the first and third instances dignity
finds association in the concept of fraternity and common brotherhood. The foundation of an
anti-discriminatory right is this assurance of mutual respect. In Puttaswamy (supra at para 543,pg
611), it was held that the expression “dignity of the individual” in the Preamble was aimed
essentially to show explicit repudiation of what people of this country had inherited from the
past. Viewed thus, the Constitution signifies a spatial and jurisprudential break from the past. It
heralds the transformation of a person from a subject to a citizen; a subject not only of colonial
rule but also of an oppressive social order.

MORALITY IN ARTS. 25 AND 26


16. The exclusionary practice in the present case cannot be justified either on grounds of health,
public order or morality. The term ‘morality’ used in Article 25 or Article 26 is not an
22
Neera Mathur v. LIC (1992) 1SCC 286 at para 13.
23
Justice (Retd.) K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (at paras 66, 108, 119, 247.1 and 248)
24
Sri Venkataramana Devaru v. State of Mysore, (1958) SCR 895 [Pg.919]

36 | P a g e
individualised or sectionalized sense of morality, subject to varying practices and ideals of every
religion25. It is morality informed by the constitutional vision. It is grounded in the constitutional
text, tempered by Articles 14, 15, 17, 21, 38 and 51A; very much terrestrial. 26 Any subjective
reading of the term morality, in the context of Article 25 would make the liberty of faith and
worship otiose, and would no doubt result in a tautological rendition of the provision. It is further
submitted that exclusion of women as in the present case is a matter of institutional practice, not
morality. Assuming that it is morality, such institutional morality resides in Article 26(b), which
is itself subject to morality in the opening part of Article 26, which is constitutional morality.27

a. Shastri Yagnapurushdasji v. Muldas Bhudardas Vaishya, (1966) 3 SCR 242 at pgs 258 and
259

18. Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965
(hereinafter ‘Temple Entry Rules’) is ultra-vires Sections 3 and 4 of the Temple Entry Act. It
protects “custom and usage” which may prohibit entry when Section 3 of the Act expressly
overrides custom and usage. It discriminates against women when Section 4 makes it clear that
the Rules made under it cannot be discriminatory against any section or class. It is important to
emphasize that the power entrusted under the Temple Entry Act to make Rules, inter alia, for due

WHEATHER ANY DISCRIMINATION WITH MEN AND WOMEN IS ESSENTIAL


RELIGIOUS PRACTICES ?
The primary right of entry of a men and woman devotee being an essential and integral part of
right to worship, the right to exclude them must be treated as the exception. The Court has stated
the test to determine whether a practice is essential to a religion is to find out whether the nature
of the religion will be changed without that part or practice. 28 If the taking away of that part or
practice would result in a fundamental change in the character of that religions or in its belief,
then such part could be treated as an essential or integral part. In order to claim protection under
the doctrine of essential religious practices, this exclusionary practice being claimed by the
Devaswom must be shown as so fundamental to the religious belief, without which the religion
will not survive. This Hon’ble Court has specifically cautioned against “extraneous and
unessential accretions” to essential religious practices from being protected under Article 26.29

That the any practice which is make no change in the religion should not essential of the religion
all citizens of the India having right conferred under the Indian constitution of India , any act or

25
Adi Saiva SivachariyargalNalaSangam v. State of T.N., (2016) 2 SCC 725 [para 42, 43 & 48]

26
Manoj Narula v. Union of India, (2014) 9 SCC 1[para 74-76]
National Legal Services Authority v. Union of India, (2014) 5 SCC 438, [para 129]

27
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2008) 5 SCC 534 [para 47]
28
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770 at para 9.
29
The Dargah Committee, Ajmer & Anr. v. Syed Hussain Ali &Ors.,(1961) 1 SCR 383, at pg.412

37 | P a g e
custom which is violative the fundamental rights its will be comes to an end and not be contrary
the law.

ISSUE NO-3

WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND


MURDER OF REEMA AND RIYA, AND THE HIGH COURT OF ARYA
PRADESH ERRED IN ACQUITTING THEM.

This is submitted before the Hon‟ble Supreme Court of Indiana that the accused had committed
the offence of abduction and murder of Reema and Riya, and the high court of Arya Pradesh
erred in acquitting them.

Section 362 of the Indian Penal Code, 1860 states that Whoever by force compels, or by any
deceitful means induces, any person to go from any place, is said to abduct that person.

Section 300 of the Indian Penal Code, 1860 speaks about Murder. Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which the death is caused is done with the
intention of causing death, or—
(Secondly) —If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
(Fourthly) —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Section 364 of the Indian Penal Code, 1860 states that Whoever kidnaps or abducts any person in
order that such person may be murdered or may be so disposed of as to be put in danger of being
murdered, shall be punished with 1[imprisonment for life] or rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine.

It is humbly submitted before the Court that the accused are guilty of commission of offence on
the following grounds;

38 | P a g e
[1] Act done with the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused;
[2] Illegal act done with the common intention to commit offence, i.e. criminal conspiracy;
[3] Full chain of circumstances is complete which is sufficient to prove the commission of
offence, i.e. circumstantial evidence.
[4] Erroneous Judgement of High Court.

Act done with the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused
Section 300(2) of The Indian Penal Code, 1860 states that any act done with the intention of
causing such bodily injury as the offender knows to be likely to cause the death of the person to
whom the harm is caused.
In Abdul Waheed Khan and Ors. vs. State of Andhra Pradesh 30 three appellants
indiscriminately stabbed deceased, they expected resistance and all three armed with knives still
appellants went on giving stabs with knives till deceased lost his life.
The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed
by the offender regarding the particular victim being in such a peculiar condition or state of
health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such
harm would not in the ordinary way of nature be sufficient to cause death of a person in normal
health or condition. It is noteworthy that the 'intention to cause death' is not an essential
requirement of Clause (2). Only the intention of causing the bodily injury coupled with the
offender's knowledge of the likelihood of such injury causing the death of the particular victim,
is sufficient to bring the killing within the ambit of this clause.
In the present case, Reema‟s cause of death was as a result of slit throat, multifarious stabbing
wounds, battering of face, intracranial hematoma and laceration of carotid artery resulting to
fatal and massive blood loss. Riya was brutally gangraped by the accused and her cause of death
was asphyxia as a result of manual strangulation which is homicidal in nature.

In Arun Raj vs. Union of India (UOI) and Ors.31 appellant had got the knife which was sharp
enough to have the knowledge that it might cause death of a human being when stabbed. Also,
the knife was hidden and removed by appellant only when he was about to stab the deceased. He
stabbed the deceased on the chest which is a fragile portion of the body and can cause death
when stabbed by sharp weapon.

Whether the contention of the appellant that the appellant dealt only single blow on the deceased
and there was no intention on the part of the appellant to cause the death of the deceased. But
“once the ingredients of Section 304 Part II proved, it is irrelevant whether there was a single

30
Abdul Waheed Khan and Ors. vs. State of Andhra Pradesh (27.08.2002 - SC)

31
Arun Raj vs. Union of India (UOI) and Ors. (13.05.2010 - SC)

39 | P a g e
blow struck or multiple blows and even a single blow attracted Section 302.” “Once the act is
done with the knowledge that it is likely to cause death or with the intention to cause death, or to
cause such bodily injury as is likely to cause death, the ingredients of Section 304 Part II are
considered to be proved and then to attract Section 302 it is irrelevant whether there was a single
blow struck or multiple blows.”
In the present case, Reema‟s cause of death was as a result of slit throat, multifarious stabbing
wounds, battering of face, intracranial hematoma and laceration of carotid artery resulting to
fatal and massive blood loss. Riya was brutally gang raped by the accused and her cause of death
was asphyxia as a result of manual strangulation which is homicidal in nature.

In Jai Singh and Ors. vs. State of Rajasthan it was held in view of nature of injury whereby
important carotid artery and jugular veins were cut and when doctor opined death was caused
due to haemorrhagic shock resulting from cut carotid artery and jugular vein on left side of neck,
undoubtedly it could be reasonable inferred therefrom that such solitary injury inflicted upon
deceased was sufficient to cause death in ordinary course of nature. This circumstance would
show that appellant intentionally inflicted injury and infliction of such injury would indicate such
state of mind of appellant that he aimed and inflicted injury with deadly weapon. In absence of
evidence or reasonable explanation to show that appellant did not intend to inflict injury by knife
on neck of deceased with that degree of force sufficient to cut important carotid artery and
jugular vein. It would be perverse to conclude that he did not intend to inflict injury that he did.
When once ingredient “intention” was established then office would be murder as intended
injury was sufficient in ordinary course of nature to cause death.
In the present case, Reema‟s cause of death was as a result of slit throat, multifarious stabbing
wounds, battering of face, intracranial hematoma and laceration of carotid artery resulting to
fatal and massive blood loss. Riya was brutally gangraped by the accused and her cause of death
was asphyxia as a result of manual strangulation which is homicidal in nature.

Illegal act done with the common intention to commit offence, i.e. criminal conspiracy

Section 120A of the Indian Penal Code defines Criminal Conspiracy. When two or more persons
agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy.

In Bhajan Kaur and Ors. vs. State of Punjab 32 it appeared from record that prosecution had
been able to establish conspiracy and motive behind murder. Recovery of blood stained articles
including 'kirpan' was made on stance of Appellant no.1. Appellant no.1 and 2 failed to give any
explanation regarding death of deceased and her children in their room especially when
Appellant no .1 and 2 were residing in same house and in fact Appellant no.2 claims to be living
as husband of deceased. Form complete chain of evidence prosecution sufficiently establish that

32
Bhajan Kaur and Ors. vs. State of Punjab (11.10.2017 - PHHC) : MANU/PH/1266/2017

40 | P a g e
Appellant no.1 and 2 in conspiracy with Appellant no.3 had killed deceased and her three
children.

In the present case when Reema and Riya tried to enter the temple premise on 24.12.2016 after
the judgement of the SC came in 2016, they were stopped and threatened by the priest of the
temple of dire consequences. In the evening of 27.12.16 an FIR was lodged by Jagga Ram Manik
Chand regarding theft of his SUV. He mentioned about his co-priest Bhanu and Kalu having a
duplicate key of his car. At 1:00a.m. on 30.12.16, Mrs. Radha requested police to lodge a missing
complaint as her daughters had not returned home. Though FIR was not registered but police
went to search the twin sisters and discovered a suspicious SUV in an abandoned jungle, near
Mohini Bazar. The same day around 5:30a.m. dead body of Reema was discovered near the
premise of the Lord Jogeshwara Temple. Riya‟s dead body was discovered from the jungle near
Mohini Baar on 31.12.16. In the FIR lodged by Mrs. Radha on 29.12.16 said that she believes
that her daughters were abducted and killed by Pt. Kali Charan and his co-priests of the Lord
Jogeshwara Temple under the colour of revenge and enmity as they were protesting against them
to implement the judgement of the SC dated 23.12.16 (KADAM EK PAHAL v. UOI).
In The State of Maharashtra vs. Babasaheb Maruti Kamble 33 Justice Arun Mishra, while
dismissing the appeals: (i) The abduction of the deceased was proved and deceased had been
murdered soon after his abduction in two days and thereafter his body had been cremated under
the name of a fictitious person. It was for the accused persons to satisfy the court how the
abducted victim was dealt with by them. In the absence of such explanation it is open to the court
to draw a presumption that the abductor was the murderer also. (ii) It was apparent that the
deceased was killed in factory and the fact that the Appellants were not persons who brought
down body from upstairs is not enough to exonerate appellants considering the established facts
and circumstances in case they have been rightly held guilty of murder also. (iii) The Trial Court
rightly found that the appellants had acted upon the conspiracy of Accused Nos. 1 and 2 and had
been found guilty of offences under Sections 365, 387, 302, 347, 364, 109 and 201 of Indian
Penal Code.

For these reasons, we do not find any merit in the instant appeal and the same stands accordingly
dismissed. The conviction and the sentence of the appellant under Section 302 IPC are
confirmed.
For these reasons, we do not find any merit in the instant appeal and the same stands accordingly
dismissed. The conviction and the sentence of the appellant under Section 302 IPC are
confirmed. For Section 109 of Indian Penal Code, it is not enough to show a conspiracy. It has to
be taken a step further. What needs to be proved is an act committed in furtherance of that
conspiracy.
In the present case when Reema and Riya tried to enter the temple premise on 24.12.2016 after
the judgement of the SC came in 2016, they were stopped and threatened by the priest of the
temple of dire consequences. In the evening of 27.12.16 an FIR was lodged by Jagga Ram Manik
Chand regarding theft of his SUV. He mentioned about his co-priest Bhanu and Kalu having a
duplicate key of his car. At 1:00a.m. on 30.12.16, Mrs. Radha requested police to lodge a missing
complaint as her daughters had not returned home. Though FIR was not registered but police

33
The State of Maharashtra vs. Babasaheb Maruti Kamble (10.07.2014 - BOMHC) : MANU/MH/2589/2014

41 | P a g e
went to search the twin sisters and discovered a suspicious SUV in an abandoned jungle, near
Mohini Bazar. The same day around 5:30a.m. dead body of Reema was discovered near the
premise of the Lord Jogeshwara Temple. Riya‟s dead body was discovered from the jungle near
Mohini Baar on 31.12.16. In the FIR lodged by Mrs. Radha on 29.12.16 said that she believes
that her daughters were abducted and killed by Pt. Kali Charan and his co-priests of the Lord
Jogeshwara Temple under the colour of revenge and enmity as they were protesting against them
to implement the judgement of the SC dated 23.12.16 (KADAM EK PAHAL v. UOI).

Full chain of circumstances is complete which is sufficient to prove the commission of


offence, i.e. circumstantial evidence

As per the Indian Evidence Act, 1872 the term “evidence” means and includes —
(i) Oral evidence — i.e., all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry; and
(ii) Documentary evidence — i.e., all documents, including electronic records, produced for the
inspection of the Court.
There are various type of evidence in the Indian Evidence Act. Indirect or Circumstantial
Evidence is one of them. Circumstantial or Indirect Evidence are the ones which attempts to
prove the facts in dispute by providing other facts. Circumstantial evidence are not definite
proof, they only provide a general ideas as to what occurred at the crime scene.

In case of State of U.P. vs. Satish34 the Hon'ble Supreme Court has summarized the factors,
which must be satisfied before a conviction can be recorded on the basis of circumstantial
evidence. Firstly the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established, secondly, those circumstances should be of definite tendency
unerringly pointing towards guilt of the accused; thirdly, the circumstances, taken cumulatively
should form a chain so complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none else; fourthly, the
circumstantial evidence in order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent with his
innocence. Hence, while dealing with the present case, we should keep these factors in mind.

In the present case, CBI recovered 3 Daraatis out of which 2 were recovered from the temple
premise, one under the neem tree having blood stains on it and other from the gutter tank of the
temple. One more similar daraati was recovered from house of Pt. Kali Charan. 2 Lathis were
recovered from the SUV. One of the accused Bhawani was arrested from his relative‟s house
outside Katra and he was caught in state of absconding. Savita his wife gave statement as
witness. She said that Bhawani returned home at 3:00a.m. on 30.12.16 and asked her to pack her
bags and said they were going somewhere for few days. He further added that he had committed
a sinful act because Pt. Kali Charan had brain washed him and instigated him by saying wrong
things about the sisters. She observed him for few days and found that he was acting weirdly. Mr.
34
State of U.P. vs. Satish, MANU/SC/0090/2005 : 2005(2) Criminal Court Cases 305 (S.C.): (2005)3 SCC 114

42 | P a g e
Krishana Das, one of the witness gave the statement that around 11:30 p.m. on 29.12.16 he heard
two girls screaming. He followed the voice and saw four men dragging two girls into an SUV
car. He observed that all of them were wearing saffron dhoti. Next day their dead bodies were
found. Both of them were had severe body injuries and were murdered and Riya was raped too.
This shows inter connection of all the facts which form a strong evidence against the accused.

In Paramasivam and Ors. v. State through Inspector of Police 35 the Court while dealing with
a case of circumstantial evidence held that in absence of any explanation put forth by accused as
to what happened to deceased thereafter which factum was specially within his knowledge,
presumption could be drawn that accused had murdered the deceased, since he was found
murdered within short time after abduction.

In the present case, the evidences found and the statement given by the different witnesses
proves that there is inter connection of all the facts which forms a strong evidence against the
accused party.
In Kiriti Pal and Ors. vs. State of West Bengal and Ors. 36 this case based on circumstantial
evidence, the court must adopt a very conscious approach and should record conviction only if
all the links in the chain are complete pointing to the guilt of the accused. All the links forming
complete chain must be firmly established by the prosecution. Each link taken separately may
just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient
to convict the accused. All the circumstances must be firmly established and must be consistent
only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each
and every hypothesis put forward by the accused however farfetched it may be.
In the present case, the evidences found and the statement given by the different witnesses
proves that there is inter connection of all the facts which forms a strong evidence against the
accused party.
In Khem Karan & Others v. The State of U.P. 37 the court stated that, “if all the circumstances
and the evidence point towards the guilt of the accused and there is no possibility of any other
alternative hypothesis then in such a situation only the accused can be convicted solely on the
basis of circumstantial evidence.”

In the present case; the missing of the girls suddenly and then their dead body being found with
various marks of injury, statement by an eye-witness about two girls being dragged by four men
wearing saffron dhoti and the sudden step taken by Bhawani to leave the town shows the inter
connection of all facts.

Erroneous Judgement of High Court

In Chandrappa and Ors. v. State of Karnataka an appeal against acquittal and power of the
appellate court to reappreciate, review or reconsider evidence and interfere with the order of

35
Paramsivam & Ors vs State Tr.Insp.Of Police on 1 July, 2014
36
Kiriti Pal and Ors. vs. State of West Bengal and Ors. (16.04.2015 - SC) : MANU/SC/0549/2015
37
Khem Karan & Ors v. The State of of U.P. 8 April, 1974 AIR 156, 1974SCR (3) 863

43 | P a g e
acquittal. The Court reiterated the general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal emerge:
1. An appellate court has full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise
of such power and an appellate court on the evidence before it may reach its own conclusion,
both on questions of fact and of law.
3. Various expressions, such as, "substantial and compelling reasons", "good and sufficient
grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail the power of the court to review the
evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal recorded by the trial court.

In the present case, in spite of all the evidences against the accused, the post- mortem report of
Reema (Annexure 2-A), the post- mortem report of Riya (Annexure 2-B) and the CBI
investigation report, still the High court reversed the order of the Trial Court and acquitted all the
accused on the grounds that prosecution had failed to establish its case beyond all reasonable
doubts.
In State of Rajasthan vs. Ram Bharosi and Ors. 38 an appeal against judgment of Divisional
Bench of High Court in acquitting accused. Accused was convicted for offence under Section
302. He was fully armed with premeditation to cause death and could not be said that he did not
have any intention of doing more harm than was necessary for purpose of private defence. The
use of deadly force is not justified to expel trespassers. State of Rajasthan is aggrieved by the
judgment dated May 1, 1996 of the Division Bench of the Rajasthan High Court (Jaipur Bench)
for two reasons: (1) acquitting Natthi, Karan Singh and Ram Bharosi of offences under Sections
302/149, 149 and 447 Indian Penal Code (IPC for short) though maintaining their conviction for
offence under Section 323 IPC but reducing their sentence to the rigorous imprisonment already
undergone by them; and (2) acquitting Makhan and Gokula of charges under Sections 302, 148,
447 and 323 IPC. Gokula and Makhan have appealed against the same very judgment against
their conviction and sentence.
this would not apply as form the findings on record it is clear that it was not a case where the
accused were exercising right of private defence without premeditation, and without any
intention of doing more harm than was necessary for the purpose of self-defence, The accused
were there fully armed with premeditation to cause death and it could not be said that they did
38
State of Rajasthan vs. Ram Bharosi and Ors. (12.08.1998 - SC) : MANU/SC/0509/1998

44 | P a g e
not have the intention of doing more harm than was necessary for the purpose of private defence.
Clearly use of deadly force was not justified merely to expel Shiv Ram and Vijay Kumar, alleged
trespassers. It was nowhere the case of the defence that there was no other way of getting them
out of the land. The occasion certainly did not warrant any action of self-defence.
State of law is explicit. In this view of the matter the High Court was not right in its conclusion.
The judgment of the High Court cannot be sustained either in law or on the facts of the case. We,
therefore, allow the Criminal Appeal filed by the State, set aside the judgment of the High Court
and restore that of the trial court. The result is that Makhan and Gokula are convicted under
Section 302 IPC and each of them sentenced to undergo imprisonment for life and a fine of Rs.
500.
In the present case, in spite of all the evidences against the accused, the post- mortem report of
Reema (Annexure 2-A), the post- mortem report of Riya (Annexure 2-B) and the CBI
investigation report, still the High court reversed the order of the Trial Court and acquitted all the
accused on the grounds that prosecution had failed to establish its case beyond all reasonable
doubts.

ISSUE NO- 4

WHETHER ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF


RIYA.

Section 375 of the Indian Penal Code, 1860 describes rape. A man is said to commit “rape” who,
except in the case hereinafter excepted, has sexual intercourse with a woman under
circumstances:
First. -- Against her will.
Secondly. --Without her consent.
Explanation. --Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape.
A man is said to commit “rape” if he-
a)penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person.

Section 376D of the Indian Penal Code, 1860 describes gang rape. Where a woman is raped by
one or more persons constituting a group or acting in furtherance of a common intention, each of
those persons shall be deemed to have committed the offence of rape.

It is humbly submitted before the Court that the accused are guilty of commission of gang rape
on the following grounds;
[1] Acts done by several persons in furtherance of common intention;
[2]Medical examination of victim of Rape.

45 | P a g e
Acts done by several persons in furtherance of common intention

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. To
bring the offence of rape within the purview of Section 376(2)(g), Indian Penal Code, read with
Explanation 1 to this Section, it is necessary for the prosecution to prove :
(i)that more than one person had acted in concert with the common intention to commit rape on
the victim
(ii)that more than one accused had acted in concert in commission of crime of rape with pre-
arranged plan, prior meeting of mind and with element of participation in action. Common
intention would be action in consort in pre-arranged plan or a plan formed suddenly at the time
of commission of offence which is reflected by element of participation in action or by the proof
of the fact of inaction when the action would be necessary. The prosecution would be required to
prove pre-meeting of mind of accused persons prior to commission of offence of rape by
substantial evidence or by circumstantial evidence; and
(iii)that in furtherance of such common intention one or more persons of the group actually
committed offence of rape on victim or victims. Prosecution is not required to prove actual
commission of rape by each and every accused forming group.
On proof of common intention of the group of persons which would be of more than one, to
commit the offence of rape, actual act of rape by even one individual forming group, would
fasten the guilt on other members of the group, although he or they have not committed rape on
the victim or victims.
It is settled-law that the common intention or the intention of the individual concerned in
furtherance of the common intention could be proved either from direct evidence or by inference
from the acts or attending circumstances of the case and conduct of the parties. Direct proof of
common intention is seldom available and, therefore, such intention can only be inferred from
the circumstances appearing from the proved facts of the case and the proved circumstances.

Section 10 of Evidence Act runs inter alia, “Things said or done by conspirator in reference to
common design.--Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said, done or written
by any one of such persons in reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact as against each of the
persons believed to so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it.”

In Ashok Kumar v. State of Haryana39 the court observed that in order to establish an offence
under Section 376(2)(g) Indian Penal Code reads, the prosecution must adduce evidence to
indicate that more than one accused had acted in concert and in such an event, if rape had been
committed by even one, all the accused will be guilty irrespective of the fact that she had been
raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a
completed act of rape by each one of the accused. In other words, this provision embodies a
principle of joint liability and the essence of that liability is the existence of common intention;

39
Ashok Kumar v. State of Haryana MANU/SC/1176/2002 : 2003CriLJ4932

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that common intention presupposes prior concert which may be determined from the conduct of
offenders revealed during the course of action and it could arise and be formed suddenly, but,
there must be meeting of minds. It is not enough to have the same intention independently of
each of the offenders. In such cases, there must be criminal sharing marking out a certain
measure of jointness in the commission of offence.
In the present case, as per the post-mortem report of Riya( Annexure 2-B),the vaginal
examination describes vaginal injuries suggesting forceful penetration by more than 2 persons.
The hymen was found to be torn. Mucosa of the stomach, small intestine and large intestine were
found congested. 20cm of cylindrical rod has been inserted into it which has caused the hymen
tear into 3‟O clock to 8‟0 clock in position.

In Priya Patel v. State of M.P. and Anr.40 the Court has observed that by operation of the
deeming provision, a person who has not actually committed rape is deemed to have committed
rape even if only one of the group in furtherance of the common intention has committed rape.
'Common intention' is dealt with in Section 34 and provides that 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 was done by him alone. 'Common intention' denotes action in
concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element
of participation in action. The acts may be different and vary in character, but must be actuated
by the same common intention, which is different from same intention or similar intention. The
sine qua non for bringing in application of Section 34 IPC that the act must be done in
furtherance of the common intention to do a criminal act. The expression 'in furtherance of their
common intention' as appearing in the Explanation to Section 376(2) relates to intention to
commit rape.
In the present case, the sisters were abducted by the priests of the Temple. Later their dead bodies
were found with severe bodily injuries and Riya was gang raped. Also as per the post- mortem
report of Riya( Annexure 2-B),the vaginal examination describes vaginal injuries suggesting
forceful penetration by more than 2 persons.

Medical examination of victim of Rape

Section 164A of the Criminal Procedure Code, 1973 describes medical examination of victim of
rape. Where, during the stage when an offence of committing rape or attempt to commit rape is
under investigation, it is proposed to get the person of the woman with whom rape is alleged or
attempted to have been committed or attempted, examined by a medical expert, such
examination shall be conducted by a registered medical practitioner employed in a hospital run
by the Government or a local authority and in the absence of such a practitioner, by any other
registered medical practitioner, with the consent of such woman or of a person competent to give
such consent on her behalf and such woman shall be sent to such registered medical practitioner
within twenty-four hours from the time of receiving the information relating to the commission
of such offence.

40
18 Priya Patel v. State of M.P. and Anr. MANU/SC/3038/2006 : 2006CriLJ3627

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In Chetan and Ors. vs. State41 an appeal filed against order whereby appellants were convicted
for offence of gang rape punishable under Section 376(2) (g) of Indian Penal Code. Whether
impugned order of conviction for alleged offence was sustainable. It was held that prosecutrix
narrated sequence of events that had occurred and role of each of appellants clearly and
precisely. Medical opinion confirmed use of force against prosecutrix described observation of
medical officer, who examined her, provided corroboration to word of prosecutrix. Evidence of
prosecution in general and that of prosecutrix in particular inspiring confidence and worthy of
reliance.
In the present case, as per the post-mortem report of Riya( Annexure 2-B),the vaginal
examination describes vaginal injuries suggesting forceful penetration by more than 2 persons.
The hymen was found to be torn. Mucosa of the stomach, small intestine and large intestine were
found congested. 20cm of cylindrical rod has been inserted into it which has caused the hymen
tear into 3‟O clock to 8‟0 clock in position. This proves that all accused are guilty of committing
rape of Riya.

MEMORIAL ON THE BEHALF OF PETITIONER

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly prayed
that this Hon‟ble Court may be pleased to adjudge and declare that:

 Prohibiting women of a particular age group from entering Lord Jogeshwara Temple is violates
the Fundamental rights under Article 14, 15, 21 and 25 enshrined under the Constitution of
Indiana, and the claim for the exclusion of the women from religious worship founded in
religious text, is subordinate to the Constitutional values of Liberty, Equality and dignity.

 Fundamental rights are equal for the both men and women and it shall be equally enforceable and
if there any custom or rule which is violating the fundamental rights shall be made
unconstitutional and penalize

 The accused are guilty of abduction and murder of Reema and Riya under Section 362, 364, 34,
120B and 302 of Indian Penal Code,1860. The High Court of Arya Pradesh erred in acquitting all
the accused.
41
Chetan and Ors. vs. State (16.07.2015 - DELHC) : MANU/DE/2055/2015

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 All accused are guilty of committing rape of Riya under 376 D of the Indian Penal Code,1860.

And pass any other order that this Hon‟ble Court may deem fit in the interest of justice, equity and good
conscience.
All of which is humbly prayed,

Sd/-

(COUNSEL FOR PETITIONER)

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