TEAM CODE: TC-13 INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY .

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TEAM CODE: TC-13INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA1st NATIONAL MOOT COURT COMPETITION, 2016IN THE HON’BLE SUPREME COURT OF INDIANA(CRIMINAL APPELLATE JURISDICTION)SPECIAL LEAVE PETITION (CRL.) NO. OF 2016 .PETITIONERSHEKHAR SAXENAVersus RESPONDENTUNION OF INDIANA(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)WITHSPECIAL LEAVE PETITION (CRL.) NO. OF 2016 PETITIONERSHYAMAVersusUNION OF INDIANA .RESPONDENT(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA)MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRATABLE OF CONTENTSLIST OF ABBREVIATIONS 4INDEX OF AUTHORITIES .6STATEMENT OF JURISDICTION 9STATEMENT OF FACTS .10ISSUES RAISED 13SUMMARY OF ARGUMENTS .14ARGUMENTS ADVANCED 181. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THISCOURT IS MAINTAINABLE OR NOT .181.1 JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKEDWHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCEARISES. 181.1.1THAT THE MATTER INVOLVES QUESTION OF LAW OFGENERAL PUBLIC IMPORTANCE AND HENCE, ENTITLED TOBE MAINTAINABLE .191.1.2THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAWAND HENCE ENTITLED TO BE MAINTAINABLE .202. WHETHER THE SESSIONS & HIGH COURT WERE JUSTIFIED INREJECTING THE BONE TEST 222.1 THE BONE TEST IS A RELIABLE SOURCE 242.2 THELOWERCOURTISNOT JUSTIFIEDFORDENYING THEOSSIFICATION TEST AS A RIGHT TO SHAYAMA .24Page 2MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA3. WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE OF COMMONINTENTION DEFINED UNDER S.34 OF IPC 263.1 ABSENCE OF COMMON INTENTION .283.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION .294. WHETHER THE ACT IS IN CONTRAVENTION WITH THE CONSTITUIONOF INDIANA AND INTERNATIONAL NORMS .304.1. THE ACT IS IN CONTRAVENTION WITH THE ARTICLE 15(3) OF THECONSTITUTION OF INDIANA .314.2. THE ACT IS IN CONTRAVENTION WITH THE UN CONVENTION ON THERIGHTS OF CHILD .31PRAYER 35Page 3MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRALIST OF ABBREVIATIONSAIRAll India ReporterAllAllahabad High CourtBom. LRBombay Law ReporterCalCalcutta High CourtCBICentral Bureau of InvestigationCri LJ / Cr LJCriminal Law JournalCr.P.C.Code of Criminal ProcedureDelDelhi High CourtEd.EditionJJAJuvenile Justice ActGujGujarat High CourtHCHigh CourtIPCIndian Penal CodeICIndian CasesILRIndian Law ReportsITRIncome Tax ReportsJTJudgment TodayMadMadras High CourtNCRBNational Crime Records BureauOriOrissa High CourtP&HPunjab and Haryana High CourtPatPatna High CourtRajRajasthan High CourtPage 4MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRASCSupreme CourtSCCSupreme Court CasesSCJSupreme Court JournalSCRSupreme Court ReporterSec.SectionU.O.IUnion of IndiaV.VersusPage 5MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRAINDEX OF AUTHORITIESCASES Haryana State Industrial Corporation v. Cork Mfg. Co., (2007) 8 SCC 359. Pawan Kumar v. State of Haryana, (2003)11 SCC 241. C.C.E v Standard Motor Products, (1989) AIR 1298. Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai, (2004)3 SCC 214. Balakrishna v. Rmaswami, (1965) AIR 195. CIT v. Nova Promoter & Finlease Pvt. Ltd., (2012) 342 ITR 169 (Del). Dale & Carrington Investment Ltd. v. P.K. Prathapan, (2005) 1 SCC 212. Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd.,(1962) AIR 1314. Kathi Raning Rawat v. The State of Saurashtra, (1952) AIR 991. Pritam Singh v. The State, (1950) AIR 169. Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520. Gopinath Gosh v. State of West Bengal, AIR 1984 SC 237. Jaya Mala v. Home Secretary, Govt. Of J&K, AIR 1982 SC 1297. Bhoop Ram v. State of U.P, AIR 1989 SC 1329. Mepa Dana, (1959) Bom LR 269. Shaik China Brahmam v. State of A.P., AIR 2008 SC 610. Garib Singh v. State of Punjab, 1972 Cr LJ 1286. Pandurang v. State of Hyderabad, AIR 1955 SC 216. Oswal Danji v. State, (1960) 1 Guj LR 145. Bherusingh v. State, 1956 Madh. BLJ 905. Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250.Page 6MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653. Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.). State of Bihar v. Lala Mahto A.I.R 1955 pat. 161. Dharam Pal v. State of Haryana, AIR 1978 SC 1492. William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116. Surinder Singh vs. State of U.P., AIR 2003 SC 3811. Subramanian Swamy v. Raju, (2014) 8 SCC 390.BOOKS Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code,Vol I, Bharat Law House, Delhi, 27th Edn. 2013. Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code,Vol II, Bharat Law House, Delhi, 27th Edn. 2013. Justice V. V. Raghavan, Law of Crimes, India Law House, New Delhi, 5th Edn. 2001. K I Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12th Edn. 2014. Dr. (Sir) Hari Singh Gour, Penal Law of India, Law Publishers (India) Pvt. Ltd., 11thEdn. 2014. J C Smith, Smith and Hogan Criminal Law – Cases and Materials, LexisNexisButterworths, 8th Edn. 2002. Basu’s Indian Penal Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn.2011. Criminal Manual, Universal Law Publishing Company, 2015. Dr. Karunakaran Mathiharan, Modi’s Medical Jurisprudence and Toxicology,LexisNexis Butterworths, 23rd Edn. 2010. Maharukh Adenwalla, Child Protection and Juvenile Justice System, ChildLine IndiaFoundation, Mumbai, 10th Edn. 2008.Page 7MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA Ved Kumari, Juvenile Justice System in India, Oxford University Press, New Delhi,2004. S.K.A Naqvi & Sharat Tripathi, R. N. Choudhry’s Law Relating to Juvenile Justice inIndia, Orient Publishing Company, New Delhi, 3rd Edn. 2012.STATUTES Indian Penal Code, 1860. The Juvenile Justice (Care and Protection of Children) Act. 2015. The Juvenile Justice (Care and Protection of Children) Rules. 2007. The Constitution of India, 1949.TREATIES United Nations Convention on the Rights of the Child, 1990LEXICONS Garner Bryana, Black’s law Dictionary, 7th Edn.1981, West Group. Collin’s Gem English Thesaurus, 8th Edn. 2016. Collins. Catherine Soanes, Oxford Dictionary Thesaurus, 40th Edn. 2006, Oxford UniversityPress.LEGAL DATABASES Manupatra SCC Online Judis Indian KanoonPage 8MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRASTATEMENT OF JURISDICTIONThe Petitioners have approached the Hon’ble Supreme Court of Indiana under Article 136 ofthe Constitution of Indiana. The leave has been granted by this Hon’ble court in both mattersand both the matters are to be heard by this Hon’ble Supreme Court together. The article 136of Constitution of Indiana reads as hereunder:“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.(1) Notwithstanding Anything In This Chapter, The Supreme Court May, In Its Discretion,Grant Special Leave To Appeal From Any Judgment, Decree, Determination, Sentence OrOrder In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The TerritoryOf India.(2) Nothing In Clause (1) Shall Apply To Any Judgment, Determination, Sentence Or OrderPassed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law Relating ToThe Armed Forces.”Page 9MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRASTATEMENT OF FACTSFor the sake of brevity and convenience of the Hon ble Court the facts of the present case aresummarized as follows:BACKGROUND1. Shyama is a poor boy who used to live in a slum in the outskirts of the city of Bradain the Republic of Indiana. He studied in a government funded school named, ShantiNiketan School up to Sixth Standard but then he dropped out of school and since then,he has been in the employment of Mr. R. Batra. Shyama lives in the quarter providedby Mr. Batra. It has been 6 years since his employment.2. Mr. R. Batra had two children, a boy named Ravi, aged 18 years and a girl namedVanita, aged 16 years. Shekhar Saxena, aged 17 years and 7 months is the Son of Mr.Saxena. Shekhar is the neighbor of Mr. Batra.3. Shekhar and Ravi had hatred for each other since childhood. In light of this both had aheated quarrel. One day Shekhar was playing soccer in the park and Ravi & Vanitawere jogging at the same time. While playing soccer, the football got hit over Vanita’shead and she sustained some minor injuries. As a result, Ravi started verbally abusingShekhar and this led to a heated quarrel between the two where Ravi gave a blow toShekhar. Soon, the quarrel was resolved by one of the neighbors.4. Both, Ravi and Vanita, used to insult Shyama in a condescending manner. Shyamawas also abused and tormented in public. One day, Shekhar saw this and talked toShyama. Both started sharing the hatred for Ravi and Vanita.Page 10MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRADEATH OF RAVI AND VANITA5. Shyama took a leave for 3 days on 7th March, 2015 for going to his village. He hadthe permission of Mr. Batra for the leave. On 8th March, 2015, Mrs. Batra had plannedto go to a painting exhibition with her family but due to Mr. Batra’s work she decidedto go with her children. Shyama had prior knowledge of the same.6. Mrs. Batra, with her children, reached the exhibition at 7:30 P.M. on 8th March, 2015.Around 8:30 P.M. Vanita was taken away by four persons. Ravi sensed this and hestarted searching for his sister. While searching, Ravi went to the basement and sawfour persons. Two persons were holding her sister and the other two were trying tooutrage her modesty.7. Ravi tried to save his sister, however, he was suffered one blow on his head andseveral blows on his abdomen. As a result, he fell unconscious. His sister Vanita triedto scream, but her mouth was shut and in sudden haste she was strangulated. She felldead and all the four persons fled away. The bodies of the deceased were discoveredaround 9:30 P.M by the guard who came down to the basement to switch off thelights.JUDICAL PROCEEDINGS8. Shekhar was arrested on 10th March, 2015 on the information of Ram Manohar whosaw him sneaking out the basement on the night of 8th March, 2015. On the 12thMarch, 2015, Shyama was arrested along with Raju and Ranveer, who wereShekhar’s friends.9. On 15th May, 2015, the case was admitted to the Juvenile Board (hereinafter asJB) asall the boys were alleged to be below the age of 18 years. The case of Shekhar andShyama was committed to the Sessions Court as the JB found them well aware of thePage 11MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRAcircumstances and consequences of their acts. Both of them were tried u/s302,304,326,354 read with S. 34 of the Indiana Penal Code (hereinafter as IPC).10. On 12th June, 2015 Shekhar’s case was remanded back to the JB. However, Shyama’ssubmissions were rejected due to lack of evidence of age as his Birth Certificateprovided by the Municipality could not be discovered. Shyama’s assertion to carry outa Bone Test or any other allied test for the determination of his age was also rejectedby the court due to inconclusiveness of these kinds of tests.11. On 28th July, 2015, Shyama was found guilty u/s 304, 326, 354 read with S.34 of IPC,1860. He was sentenced to imprisonment of 3 years. Shekhar was found guilty u/s304, 326, 354 read with S. 34 of IPC, 1860 on 4th August, 2015 and he was sent to aspecial home for a maximum period of 3 years by the JB. Shekhar appealed to theSession court against the judgement and order passed by the Juvenile Board.However, the appeal was dismissed as the case had been proved beyond reasonabledoubt before the Juvenile Board.12. Both Shekhar and Shyama appealed to the High Court. Shyama filed an appealagainst the order of conviction since the Court of Session had no jurisdiction to try thecase as he was a minor. He also raised a question regarding the justification of thecourt in rejecting the bone test. Whereas, Shekhar filed an appeal for the quashing ofthe order of conviction of the Court. Both the appeals were rejected by the High Courtas both were capax of committing the crime and both had common consensus.Shyama was sentenced for life imprisonment and Shekhar was sentenced forimprisonment of 10 years.13. On 11th January, 2016, both the accused have petitioned before this Hon’ble ApexCourt against the order of High Court and the Sessions Court. The matter is admittedand listed for hearing.Page 12MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRAISSUES RAISED1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THISCOURT IS MAINTAINABLE OR NOT.2. WHETHER THE SESSIONS & HIGH COURT WERE JUSTIFIED INREJECTING THE BONE TEST.3. WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE OFCOMMON INTENTION DEFINED UNDER S.34 OF IPC.4. WHETHERTHEACTISINCONTRAVENTIONWITHTHECONSTITUION OF INDIANA AND INTERNATIONAL NORMS.Page 13MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRASUMMARY OF ARGUMENTS1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THISCOURT IS MAINTAINABLE OR NOT.It is humbly submitted before this Hon’ble Court that the Special Leave Petition againstthe judgment of the Hon’ble High Court (hereinafter as HC) is maintainable under Article136 of the Constitution of India. It is contended that the jurisdiction of Supreme Court(hereinafter as SC) under Article 136 can always be invoked when a question of law ofgeneral public importance arises and even question of fact can also be a subject matter ofjudicial review under Art.136.The jurisdiction conferred under Art. 136 on the SC is a corrective one and not arestrictive one. A duty is enjoined upon the SC to exercise its power by setting right theillegality in the judgments is well-settled that illegality must not be allowed to beperpetrated and failure by the SC to interfere with the same would amount to allowing theillegality. It has been held by this Hon’ble Court that when a question of law of generalpublic importance arises, or a decision shocks the conscience of the court, its jurisdictioncan always be invoked. Article 136 is the residuary power of SC to do justice where thecourt is satisfied that there is injustice to be perpetuated.In the present case, the question of law involved in appeal is of recurring nature whichhas been raised in plethora of cases. Hence, it is humbly submitted before this Hon’bleSupreme Court of India that the matter involves substantial question of law and henceentitled to be maintainable.Page 14MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRA2. WHETHER THE SESSIONS & HIGH COURT WERE JUSTIFIED INREJECTING THE BONE TEST.It is submitted before this Honorable Court that the bone age of a child indicates his/herlevel of biological and structural maturity. In the present case, the plea to conduct a bonetest or any other allied test for the determination of the age of Shyama was rejected by theSessions & High Court. The reason for such decision to reject the above mentioned testswas due to the inconclusiveness of these kinds of tests.This is an insufficient ground for rejecting to conduct the Age Determination Test. It is awell-accepted fact in the precedents of our Indian Judiciary that the last resort for agedetermination of a juvenile is the Bone Test i.e. Ossification Test. The "Agedetermination inquiry" conducted under Section-94(2) of the JJA, 2015 enables the courtto seek evidence and in that process the court can obtain the matriculation or equivalentcertificates, if available. The petitioner asserts that Shyama had time and again submittedbefore various lower courts the petition for determination of his age, and time and again itwas denied to him.3. WHETHER THE ACT OF SHEKHAR WAS IN FURTHERANCE OF COMMONINTENTION DEFINED UNDER S.34 OF THE IPC.It is submitted before this honorable Court that in the present case there has been a grossfailure of justice on part of the lower courts. There has been a grave error in convictingShekhar solely on the basis of his mere presence at the exhibition. The Section 34 of IPCis intended to meet cases in which it may be difficult to distinguish between the acts ofthe individual members of a party or to prove what part was exactly taken by each ofthem in furtherance of the common intention of all. To constitute common intention it isPage 15MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRAnecessary that the intention of each one of the accused was known to the rest of them andwas shared by them. The test to decide if the intention of one of them is common is to seewhether the intention of one was known to the other and was shared by that other.It is submitted that the co-accused Shekhar is being dragged into the picture for nojustifiable cause and for no fault, participation or involvement of his in the alleged act inquestion. It is submitted that neither the accused had any intention with others nor did heact in concert with others to commit such act. There was no evidence that prior to theincident there was any common intention shared by both the accused. The said intentiondid not develop at the time of the incident as well.4. WHETHER THE ACT IS IN CONTRAVENTION WITH THE CONSTITUIONOF INDIANA AND INTERNATIONAL NORMS.It is respectfully submitted that the impugned Act seeks to punish the child in conflictwith law for the failure of the society at large in providing the child with adequate careand protection. It is submitted that the impugned Act seeks to create a fictionalclassification between the children belonging to age group of 16-18 years on the basis ofdegree of crime "allegedly" committed by them.It is submitted that under the Indian law a person under the age of 18 is not allowed tovote, is considered minor for entering into a contract, a girl of age less than 18 cannotgive consent for sexual relationships, a child of age less than 18 cannot marry, yet, by theamended act, that child can be tried as an adult and after a preliminary assessment, thechild shall be presumed to have the knowledge and understanding of the alleged crime hehas committed. The counsel submits that such a scenario would be travesty of Justice.Page 16MEMORIAL ON BEHALF OF THE PETITIONER

1st NATIONAL MOOT COURT COMPETITON, 2016INSTITUTE OF LAW, KURUKSHETRA UNIVERSITY, KURUKSHETRAThe law of juvenile justice stands on the principles of restorative and reformative justiceand any digression from the same would be detrimental to the right of the children and incontravention with the principle as enunciated under Article 15(3) of the Constitution ofIndianaThe counsel humbl

Vol I, Bharat Law House, Delhi, 27th Edn. 2013. Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol II, Bharat Law House, Delhi, 27 th Edn. 2013.

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