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BEFORE THE SUPREME COURT OF INDIANA

P-6

GENERAL INTRA MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

IN THE MATTERS OF

STATE OF INDIANA ...PETITIONER

V.

Pt. KALICHARAN& Ors. …RESPONDENT

Pt. KALI CHARAN & Ors. …PETITIONER

V.

KADAM EK PAHAL …RESPONDENT

Cr. App. No. 1028 of 2018


CP. No. 111 of 2018

In the case concerning

Section 300, 362, 364, 376D of The Indian Penal Code, 1860; Article 14, 15,
21& 25 of the Constitution of India

WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER


BEFORE THE SUPREME COURT OF INDIANA

TABLE OF CONTENT

Index of Authority…………………………………………………………….iii

Abbreviations…………………………………………………………………v

Statement of Jurisdiction…………………………………………………….vi

STATEMENT OF FACTS……………………………………………………vii.

STATEMENT OF ISSUES………………………………………………….ix

STATEMNT OF ARGUMENTS……………………………………………..x

ARGUMENTS ADVANCED………………………………………………….1

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. ................................................................................1
[1.1]Prohibition of discrimination on ground of sex is violation of Fundamental rights of
women. ...................................................................................................................................2
[1.2] Discrimination in matters of entry to temples is neither a ritual nor a ceremony
associated with Hindu religion. ..............................................................................................4
[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. ......................5
2)WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF
REEMA AND RIYA, AND THE HIGH COURT OF ARYA PRADESH ERRED IN
ACQUITTING THEM...............................................................................................................7
[2.1] 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......................................8
[2.2] Illegal act done with the common intention to commit offence, i.e. criminal
conspiracy...............................................................................................................................9
[2.3] Full chain of circumstances is complete which is sufficient to prove the commission
of offence, i.e. circumstantial evidence ................................................................................12
[2.4] Erroneous Judgement of High Court ...........................................................................14
3) WHETHER ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF RIYA. ... 17

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MEMORIAL ON BEHALF OF THE PETITIONERS
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[3.1] Acts done by several persons in furtherance of common intention .............................17


[3.2]Medical examination of victim of Rape .......................................................................20

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INDEX OF AUTHORITY

Statues

 CONSTITUTION OF INDIA 1950



 INDIAN PENAL CODE 1860


 CODE OF CRIMINAL PROCEDURE 1973


 INDIAN EVIDENCE ACT 1872

List of Cases

1. Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors.
2. Noorjehan Safia Niaz and Ors. vs. State of Maharashtra
and Ors
3. Government of NCT of Delhi v. Union of India and Ors.
4. Navtej Singh Johar and Ors. v. Union of India and Ors.
5. Durgah Committee, Ajmer v. Syed Hussain Ali
6. Sri Venkatramana Devaru v. State of Mysore and Ors
7. Trupti Prashant Desai and Ors. vs. The State Of Maharashtra
8. Abdul Waheed Khan and Ors. vs. State of Andhra Pradesh
9. Arun Raj vs. Union of India (UOI) and Ors
10. Bhajan Kaur and Ors. vs. State of Punjab
11. The State of Maharashtra vs. Babasaheb Maruti Kamble
12. State of U.P. vs. Satish
13. Paramsivam & Ors vs State Tr.Insp.Of Police
14. Kiriti Pal and Ors. vs. State of West Bengal and Ors.
15. Khem Karan & Ors v. The State of of U.P.
16. State of Rajasthan vs. Ram Bharosi and Ors.
17. Ashok Kumar v. State of Haryana
18. Priya Patel v. State of M.P. and Anr.
19. Chetan and Ors. vs. State

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Books Referred
INDIAN PENAL CODE by MANOHAR

INDIAN PENAL CODE by Prof. S.N.MISHRA

INDIAN PENAL CODE by K.D.GAUR

CRIMINAL PROCEDURE by K.N. CHANDRASEKHARAN PILLAI

CRIMINAL PROVEDURE CODE by SUPINDER KAUR

THE CODE OF CRIMINAL PROCEDURE by Dr. N.V.

PARANJAPE CONSTITUTION OF INDIA by DURGA DAS BASU

THE CONSTITUTION OF INDIA by P.M. BAKSHI EVIDENCE

ACT by JUSTICE SINGHAL & CHITALEY PRINCIPLES OF

LAW OF EVIDENCE by Dr. AVTAR SINGH THE LAW OF

EVIDENCE by SHAKIL AHMAD KHAN

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LIST OF ABBREVIATION

AIR All India Reporter

Govt. Government

HC High Court

SC Supreme Court

Hon‟ble Honourable

Ors. Others

UOI Union Of India

v. Versus

CP. Curative Petition

Cr. Criminal

CBI Central Bureau of Investigation

FIR First Information Report

NGO Non Governmental Organisation

PIL Public Interest Litigation

Const. Constitution

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

STATEMENT OF JURISDICTION

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.
Article 134 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 142 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.

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STATEMENT 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 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

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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
2016.

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MEMORIAL ON BEHALF OF THE PETITIONERS
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STATEMENT OF ISSUES

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?

II

WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER


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

III

WHETHER ALL ACCUSED ARE GUILTY FOR COMMITTING RAPE OF RIYA?

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MEMORIAL ON BEHALF OF THE PETITIONERS
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SUMMARY OF ARGUMENTS

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.

It is submitted before the Hon‟ble Court of law that the prohibiting women of a particular
age group from entering Lord Jogeshwara Temple is violative of the Fundamental Rights
enshrined under the Constitution of Indiana. The petition filed by the petitioner is violation of
the Fundamental Right enshrined under the Constitution of India under Article 14, 15, 21 and
25. 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.

2. 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

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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.

3.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 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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ARGUMENTS ADVANCED

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.

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.”

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

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(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.

1.1Prohibition 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. 1 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

1
Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors. (28.09.2018 - SC)

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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 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.

In Noorjehan Safia Niaz and Ors. vs. State of Maharashtra and Ors 2 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.

3
In Government of NCT of Delhi v. Union of India and Ors. 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

2
Noorjehan Safia Niaz and Ors. vs. State of Maharashtra and Ors(26.08.2016) BOMHC
3
Government of NCT of Delhi v. Union of India and Ors. MANU/SC/0680/2018 : (2018) 8 SCALE 72

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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 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.

[1.2] 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 Ali5 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

4
Navtej Singh Johar and Ors. v. Union of India and Ors. MANU/SC/0947/2018 : (2018) 10 SCALE 386
5
Durgah Committee, Ajmer v. Syed Hussain Ali MANU/SC/0063/1961 : (1962) 1 SCR 383

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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 judgement of the apex court was not respected by the accused party.

In Sri Venkatramana Devaru v. State of Mysore and Ors.6 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.

[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.

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 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.

6
Sri Venkatramana Devaru v. State of Mysore and Ors. MANU/SC/0026/1957 : (1958) SCR 895 : 1958

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In Trupti Prashant Desai and Ors. vs. The State Of Maharashtra7 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.

7
Trupti Prashant Desai and Ors. vs. The State Of Maharashtra (13.12.2018 - SC Order) : MANU/SCOR/41138/

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MEMORIAL ON BEHALF OF THE PETITIONERS
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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. 1

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

1
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]
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.2

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, 3
[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. 4

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

2
Indian Medical Association v. Union of India, (2011) 7 SCC 179 [para 185-187]
3
AIR 1993 Ker 42
4
Bennet Coleman& Co. &Ors. V. Union of India &Ors. (1972) 2 SCC 788 [Para 42]
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 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 5 . 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].6
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.7

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
individualised or sectionalized sense of morality, subject to varying practices and ideals of
every religion8. 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. 9
5
Neera Mathur v. LIC (1992) 1SCC 286 at para 13.
6
Justice (Retd.) K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (at paras 66, 108, 119, 247.1 and 248)
7
Sri Venkataramana Devaru v. State of Mysore, (1958) SCR 895 [Pg.919]

8
Adi Saiva SivachariyargalNalaSangam v. State of T.N., (2016) 2 SCC 725 [para 42, 43 & 48]

9
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]
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.10

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.11 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 26.12

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 custom which is violative the fundamental rights its will be comes to an end and
not be contrary the law.

10
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2008) 5 SCC 534 [para 47]
11
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770 at para 9.
2)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 in-flicted 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; [2.1] 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; [2.2]
Illegal act done with the common intention to commit offence, i.e. criminal conspiracy;
[2.3] Full chain of circumstances is complete which is sufficient to prove the commission
of offence, i.e. circumstantial evidence. [2.4] Erroneous Judgement of High Court.

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MEMORIAL ON BEHALF OF THE PETITIONERS
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[2.1] 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

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 8 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.9 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.

8
Abdul Waheed Khan and Ors. vs. State of Andhra Pradesh (27.08.2002 - SC)
9
Arun Raj vs. Union of India (UOI) and Ors. (13.05.2010 - SC)

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

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 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.

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

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

Section 120A of the Indian Penal Code defines Criminal Conspiracy. When two or
more per-sons 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 agree-ment is designated a
criminal conspiracy.

In Bhajan Kaur and Ors. vs. State of Punjab10 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 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).

10
Bhajan Kaur and Ors. vs. State of Punjab (11.10.2017 - PHHC) : MANU/PH/1266/2017

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

In The State of Maharashtra vs. Babasaheb Maruti Kamble11 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 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

11
The State of Maharashtra vs. Babasaheb Maruti Kamble (10.07.2014 - BOMHC) : MANU/MH/2589/2014

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

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).

[2.3] 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. Satish12 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

12
State of U.P. vs. Satish, MANU/SC/0090/2005 : 2005(2) Criminal Court Cases 305 (S.C.): (2005)3 SCC 114

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

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. 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 Police13 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.14 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.

13
Paramsivam & Ors vs State Tr.Insp.Of Police on 1 July, 2014
14
Kiriti Pal and Ors. vs. State of West Bengal and Ors. (16.04.2015 - SC) : MANU/SC/0549/2015

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MEMORIAL ON BEHALF OF THE PETITIONERS
BEFORE THE SUPREME COURT OF INDIANA

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.15 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.

[2.4] 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 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.

15
Khem Karan & Ors v. The State of of U.P. 8 April, 1974 AIR 156, 1974SCR (3) 863

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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.16 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

16
State of Rajasthan vs. Ram Bharosi and Ors. (12.08.1998 - SC) : MANU/SC/0509/1998

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accused were there fully armed with premeditation to cause death and it could not be said that
they did 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.

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BEFORE THE SUPREME COURT OF INDIANA

3) 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; [3.1] Acts done by several persons in furtherance of common
intention; [3.2]Medical examination of victim of Rape.

[3.1] 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;

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(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 Haryana17 the court observed that in order to establish an
offence under Section 376(2)(g) Indian Penal Code reads, the prosecution must adduce

17
Ashok Kumar v. State of Haryana MANU/SC/1176/2002 : 2003CriLJ4932

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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; 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.18 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-

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


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mortem report of Riya( Annexure 2-B),the vaginal examination describes vaginal


injuries suggesting forceful penetration by more than 2 persons.

[3.2]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.

In Chetan and Ors. vs. State19 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.

19
Chetan and Ors. vs. State (16.07.2015 - DELHC) : MANU/DE/2055/2015

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BEFORE THE SUPREME COURT OF INDIANA

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 violative of 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 workship founded in religious text, is subordinate to the Constitutional
values of Liberty, Equality and dignity.

 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.

 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,


Counsel for the Petitioner

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