PUNJAB SCHOOL OF LAW

1st INTRA DEPARTMENT MOOT COURT COMPETITION 2019

BEFORE THE HON’BLE COURT OF SESSIONS

CASE CONCERNING OFFENCES UNDER SECTION 302, 376, 392

AND 394 OF THE INDIAN PENAL CODE,1860

IN THE MATTERS OF

STATE .………………………………….…………………………… PROSECUTION

VERSUS

RAVISH …….……………………………................................................. ACCUSED

MEMORIAL ON BEHALF OF ACCUSED

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………..……….…………...……..…..….……….... III

ACTS AND STATUTES…………………………………………………………..….. ......IV

LIST OF CASES................................................................................................................IV,V

BOOKS REFERRED………………………………………………………………………. V

WEBSITES REFERRED………………………………………………..…………………. V

STATEMENT OF JURISDICTION………………………………………………………. VI

STATEMENT OF FACTS…………………………………………..……………VII,VIII,IX

QUESTIONS PRESENTED………………………………………….…………………… X

SUMMARY OF ARGUMENTS……………………………………….………………XI,XII

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

I. WHETHER THE PLEA OF JUVENILITY IS MAINTAINABLE OR NOT………1

1.1 Who is a juvenile…………………………………………………………………………1

1.2 Circumstantial evidence…………………………………………………………………3

1.3 Juvenility and Murder…………………………………………………………………...3
1.4 Juvenility and Rape………………………………………………………………………6
1.5 Juvenility and Robbery…………………………………………………………………..9
1.6 Other Factors Supporting the Plea of Juvenility…………………………...…………10

PRAYER…………………..…………………………………………..……………………..13

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LIST OF ABBRIEVIATIONS

¶ Paragraph
& And
AIR All India Reporter
Anr. Another
Art. Article
CA Criminal Appeal
CIT Commissioner of Income Tax
Cr.LJ Criminal Law Journal
Cr. PC Code of Criminal Procedure
FIR First Information Report
HC High Court
i.e. That is
IPC Indian Penal Code
IEA Indian Evidence Act
Mad Madras
Ors Others
PC Privy Council
P&H Punjab & Haryana
PW Prosecution Witness
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Record
SLP Special Leave Petition
UOI Union of India
v. Versus
Cri. Criminal

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LIST OF AUTHORITIES

ACTS AND STATUTES

1. THE JUVINILE JUSTICE ( CARE AND PROTECTION OF CHILDREN)

ACT,2015

2. THE CODE OF CRIMINAL PROCEDURE, 1973

3. THE INDIAN EVIDENCE ACT, 1872

4. THE INDIAN PENAL CODE, 1860

LIST OF CASES

1. Ganbhir v. State of Maharashtra (1982 (2) SCC 351.

2. State of U.P. v. Wasif Haider etc (2019 AIR(SC)38

3. NARAYAN CHETANRAM CHAUDHARY & ANR. Vs THE STATE OF

MAHARASHTRA R.P.(Crl.) Nos.1139-1140/2000 In Crl.A. Nos.25-26/2000)

4. Chandrika Kumar and others vs. State of Bihar .2001(1) ECrC 535

5. Bhola Bhagat v. State of Bihar .1997 (2) PLJR 161

6. Chandan Kumar v. State of Jharkhand (Criminal Appeal (DB) No. 777 of 2009. D/d.
20.8.2013.)

7. LakhanLal v. State of Bihar AIR 2011 Supreme Court 842

8. Pratap Singh v. State of Jharkhand and another (AIR 2005 SC 2731)

9. Mirza Ghani Baig v. State of Andhra Pradesh (1997 2 crimes 19 AP)

10. RajendraPralhadraoWasnik v. State of Maharasgtra (2019 AIR SC )

11. Mukesh and Anr. v. State (NCT of Delhi) (2017) 6 SCC 1

12. Bhola v. Central Bureau of Investigation (2019 (1) R. C. R (Criminal) 603)

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13. Dr. Subramanian Swamy and ors v. Raju (2014 AIR (SCW) 2021

14. Ranjit Singh @ Rana v. State of Punjab . ( Cr. rev. No. 2645 of 2013 Or. Dt. 28
nov, 2017). 2018(1) R. C. R. (Cri.) 672

15. Manas Kumar Khuntia v. State of Orissa 2016(65) Orissa Cri. R 496)
16. GhureyLal vs State Of U.P 2008 (10) SCC 450

BOOKS REFERRED

th
1. KD Gaur, The Indian Penal Code, (15 Ed. , Law Publishers India Pvt. Ltd.,
2016)
rd
2. Ratanlal & Dhirajlal, The Indian Penal Code, (33 Ed., Lexis Nexis, 2016)
th
3. Ratanlal & Dheerajlal, Law of Evidence (25 Ed, Lexis Nexis, 2013)
th
4. Ratanlal & Dheerajlal, The Code of Criminal Procedure (20 Ed., Lexis Nexis
2016)
5. Dr. N. Maheshwara Swamy, Juvenile Justice ( Care and Protection of Children)
Act,2015

WEBSITES REFERRED

1. www.manupatrafast.in
2. www.scconline.com
3. www.supremecourtofindia.nic.in

4. www.westlawindia.com

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STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 26 and 177 read
with Section 209 of the Code of Criminal Procedure, 1973.

Section 26. Offences by which offences are triable- Subject to the other provisions of the
code ,-
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by—
(ii) the Court of Sessions
(iii) any other Court by which such offence is shown in the first schedule to be triable.

Section 177: Ordinary place of inquiry and trial- Every offence shall ordinarily be
inquired into and tried by a Court within whose local jurisdiction it was committed.’

Read with Section 209: Commitment of case to Court of Session when offence is triable
exclusively by it- When in a case instituted on a police report or otherwise, the accused
appears or is brought before the Magistrate and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall-
(a) commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are
to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’

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STATEMENT OF FACTS

1. Sanjana, aged 21 years, was working with FDH bank in Mumbai. She was engaged to
one Amit, with whom her marriage was scheduled for 04 march,2016. Consequently, on 02 nd
march, 2016 at about 05.30 p.m., Sanjana boarded the Mumbai-pune-Passenger Train from
Mumbai railway station to reach her home at Pune for marriage ceremony. Sanjana boarded
the ladies division of the last compartment. Here were other passengers in the ladies division
of the compartment along with her.
2. When the train reached Poonawala, all other lady passengers in the ladies division of
the compartment had alighted and, therefore, Sanjana left all alone there. In the adjacent
compartment, Ravish, along with three of his friends celebrating his sixteenth birthday. They
all were gossiping, laughing loudly, listening to music and consuming alcoholic drinks.
During the halt at Poonawala, Ravish got down to buy something and when the train started
he, in the influence of intoxication hurriedly entered the ladies compartment where Sanjana
was already present.
3. All of a sudden, Sanjana realized that Ravish was constantly gazing at her. She sat
there quietly for some time but felt uncomfortable and decided to change the compartment on
the next station. But as the fate its own course, Ravish pounced on her and repeatedly hit her
head on the walls of the compartment.
4. It is further alleged that Sanjana was crying and screaming and that she was
dropped/pushed by Ravish from the running train on the track and that the side of her face hit
on the crossover of the railway line.
5. Further, it is alleged that in order to satisfy his lust, ravish jumped down from the
other side of the running train and after lifting Sanjana to another place by side of the track he
sexually assaulted her. Thereafter he ransacked her belongings and went away from the place
with her mobile phone.
6. Eventually, Sanjana was found in a badly injured condition lying by the side of the
railway track and ravish was also apprehended soon thereafter. Sanjana was rushed to the
Hospital where she succumbed to her injuries on 05th march,2016.
7. PW-1 Arun and PW-2 Joseph were also traveling in the general compartment attached in
front ladies compartment said witnesses heard the cries of the deceased. PW-3 Brijesh wanted to pull
the alarm chain to stop the train but he was dissuaded by a middle-aged man who was standing at
the door of the compartment by saying that the girl had jumped out from the train and escaped and
that in these circumstances he should not take the matter any further as the same may drag all of
them to court.
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VIII
8. However, when the train reached Pune railway station within a span 15 minutes, PW-1
and PW-2 rushed to PW-4 Shankar, the guard of the train and complained about the incident.
The postmortem and D.N.A profiling of the deceased were done, and the FIR was registered.
Charge sheet filed under sections 302,376,392and 394 of the IPC.

9. Opinion as to the cause of the death mentioned in the postmortem report is as

follows:
(I) Injury No.1
The injury is sufficient to render Sanjana dazed and insensitive. It is capable of creating
dizziness to head and rendering her incapable to respond. These wounds may not be of the
nature of exclusive cause of death. This injury will be caused only if the head is forcefully hit
to backward and forward against a hard flat surface. The injury described No.1 is caused by
hitting 4-5 times against a flat surface holding the har from back with a right hand.
(II) Injury No.2
It is the injury injuries sustained from beneath the left eye up to the chin bone further below
on lips. There were fractures no on maxilla and mandible. about 13 teeth have gone served.
The left cheek bone is pulverised. Vertically long mark of rubbing chin bone and is seen. The
gliding mark on lower chin is seen 5cm. (gliding movement).

10. Post mortem report reveals that the deceased was pushed down from the running train.
However, it was a running train, it had only negligible speed. The consequence of speed is
minuscule in inflicting this injury. Since she was rendered insensitive as a result of Injury
No.1 in the absence of natural reflex the face had to bear the full force of the descent. There
were no injuries of fall on elbows, wrist and inner boarders of forearms. There were no
reflexes in this fall. Injury number 2 consist of the injuries that may have been caused by Fall
of a person having the weight of the deceased(42kg) from a height of 5-8 feet. This injury will
be sustained if this portion (left cheek bone crosswise) hits against the track. Left cheek bone
has been thoroughly pulverised.

11. “The descendant had died due to blunt injury sustained to head as a result of blood impact and
fall and their complication including aspiration of blood into air passages (during unprotected
unconscious state no falling head trauma) resulting in anoxic brain damage. She also showed injuries
as a result of a assault and forceful sexual intercourse.

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12. The aspiration of blood into the air pass age could have been due to the victim been kept

in supine position probably, for sexual intercourse. She had features of multiple organ
dysfunction at the time of death.
13. The case was committed to court of sessions, the accused was charged for offences
under section 302, 376, 392 and 394 of the IPC. Accused took the plea that he is a juvenile
and should be dealt under Juvenile Justice (Care and Protection of Children) Act,2015.

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QUESTIONS PRESENTED

-I-

WHETHER THE PLEA OF JUVENILITY IS MAINTAINABLE OR NOT

1.1 Who is a juvenile

1.2 Circumstantial evidence

1.3 Juvenility and Murder
1.4 Juvenility and Rape
1.5 Juvenility and Robbery
1.6 Other Factors Supporting the Plea of Juvenility

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PLEA OF JUVENILITY IS MAINTAINABLE OR NOT?

It is most humbly submitted before the hon’ble Court of Sessions of Pune that in the present
case before the court the accused has raised plea of juvenility.
1.1 Who is a juvenile?

It is submitted before the court that both the Juvenile Justice Acts of the years 2000 and 2015
define the term juvenile and under both the statutes the term juvenile includes the person who
has not crossed the age of 18 years.
1.2 Circumstantial Evidence

In a case where circumstantial evidence are relied upon, in such a case the law is well settled
that such circumstances should form an unbroken chain so as to prove the guilt of the accused.
If there is any doubt in such evidence, the benefit of such evidence should be given to the
accused.
1.3 Juvenility and Murder

In various landmark judgments of the apex court the court has provided the plea of juvenility
and the benefit of benevolent laws especially for juveniles has been maintained and allowed to
the accused in such cases.
1.4 Juvenility and Rape

It is further submitted before the hon’ble court that the law as settled for murder is also settled
for rape. In various cases where accused has been charged with rape u/s 376 of IPC the courts
have allowed the plea of juvenility raised by the accused no matter at what stage of the case
has reached. Also in the present case the DNA profiling report has not been mentioned
anywhere which has great evidentiary value in rape cases.
1.5 Juvenility and Robbery

It is further submitted before the hon’ble court that accused has been charged for the offence of
robbery u/s 392 and 394 of IPC. However, there are no facts which provide that the accused
inflicted injury on the victim while committing robbery and moreover, the victim had only a
mobile for taking of which no hurt is required to be made to the victim

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Hence, charge u/s 394 is not maintainable as there are no sufficient evidence to prove his
charge and such a case has been falsely made out just to make it look more heinous so that the
accused cannot get benefit of principle of child’s best interest.
1.6 Other Factors supporting the plea of juvenility

Following factors support the maintainability of plea of juvenility:_

 No mention of preliminary assessment conducted by the juvenile justice board as
mandatory u/s 15 of Juvenile Justice Act, 2015;

 No mention of first offender;

 Benefit of doubt;
 Rule u/s 9 of Juvenile Justice A ct, 2015;
 Reformative theory approached in India.

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ARGUMENTS ADVANCED

ISSUE 1: THE PLEA OF JUVENILITY IS MAINTAINABLE

It is most humbly submitted before the hon’ble court that in the present case the accused who
has been charged u/s 302, 376, 392, 394 of the IPC, 1860, is a juvenile and should be dealt as
a juvenile and this case should be committed to the Juvenile Justice Board.

1.1 WHO IS A JUVENILE?

According to Sec. 2(35) of Juvenile Justice (Care and Protection of Children) Act, 2015 “a
juvenile” means a child below the age of eighteen years, and a child is defined u/s 2(12) as
“child means a person who has not completed eighteen years of age.”

Thus, according to the law of the land a juvenile who has not completed the age of 18 years
or in other words who is below the age of 18 years. Moreover, preamble of the Juvenile
Justice (Care and Protection of Children) Act, 2015 also provides that child friendly approach
in the adjudication and disposal of matters in the best interest of children should be adopted.
Also in India the judicial inter alia legislative system follow the reformative theory and
approach towards the accused in criminal cases.
The unfortunate night of 16th December, 2012, which shook the whole nation wherein a girl
was allegedly Gang raped which is popularly termed as Nirbhaya Rape case, had questioned
everyone about rape laws, crime management by the state and juvenile offenders. The
government appointed Justice J.S Verma Committee, which in addition to the former Chief
Justice of India Late Justice J. S Verma comprised of very eminent Lawyers and Social
activists, to look into the possible amendments to the Criminal Law to provide for quicker
trial and enhanced punishment to the persons committing sexual offences of extreme nature
against women as an aftermath of the dreaded ‘Nirbhayaincident’. The said committee took
up the task very effectively and after extensive hearings and thorough scientific analysis came
with a report. The government was pleased to bring in amendments in criminal law especially
in the law relating to rape, intune with the recommendations, through the Criminal Law
Amendment Act 2013. The Verma Committee specifically considered the issue relating to
reduction of age of juvenile from 18 years to 16 years.

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The Committee dealt with the matter in paragraphs 44 to 55 of the Report, in para 44 the
Committee said, “We have heard experts on the question of reduction of the age of a juvenile
from 18 to 16 for the purpose of being tried for offences under various laws of the country.”

The Committee was of the view that long imprisonment of a person at the age of 16 would
not be a good idea from a reformation angle. The Committee observed that “Our jails do not
have reformatory and rehabilitation policies. We do not engage with inmates as human
beings. We do not bring about transformation…. Children, who have been deprived of
parental guidance and education, have very little chances of mainstreaming and
rehabilitations, with the provisions of the Juvenile Justice Act being reduced to words on
paper.” The Committee further said: “We are of the view that the 3 year period ((for which
delinquent children are kept in the custody of special home) is cause for correction with
respect to the damage done to the personality of the child. We are completely dissatisfied with
the operation of children’s’ institutions. The sheer lack of counselors and therapy has divided
the younger society into ‘I’ and ‘them’.” It is time that the State invested in reformation for
juvenile offenders and destitute juveniles. There are numerous jurisdictions like the United
Kingdom, Thailand, and South Africa where children are corrected and rehabilitated;
restorative justice is done and abuse is prevented. We think this is possible in India but it
requires a determination of a higher order.” The Committee also delved into scientific factors
relating to the adolescent brain development and found that adolescence is a period of
significant changes in the brain structure and function and there is consensus among
developmental neuroscientists on the nature of this change. Extensive references were made
to Laurence Steinberg’s ‘A Social Neuroscience Perspective on Adolescence Risk-Taking
Developmental Review, 2008 – Elsevier’. Specific mention were made regarding various
relevant changes in the early adolescence to late adolescence and early adulthood such as
decrease in grey matter in prefrontal regions of the brain, changes in activity involving the
neurotransmitter dopamine having important implications for sensation-seeking, increase in
white matter in the prefrontal cortex due to myelination which is important for higher-order
cognitive functions , Increase in the strength of connections between the prefrontal cortex and
the limbic system which is especially important for emotion regulation etc. Ultimately after a
thorough evaluation of the issue, the Committee held that, “We are of the view that the
material before is sufficient for us to reach the conclusion that the age of ‘juveniles’ ought not
to be reduced to 16 years”

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1.2 CIRCUMSTANTIAL EVIDENCE

The law is well settled that when a case rests upon circumstantial evidence, such evidence
must satisfy that (1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established; (2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the accused; (3) 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. The
circumstantial evidence must also be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused. The circumstantial evidence should not only
be consistent with the guilt of the accused but should be inconsistent with his innocence. (See
Ganbhir v. State of Maharashtra1.

In the present case the facts of the case have a clear and cogent view that the accused and his
friends were celebrating his 16th Birthday on the night of the alleged crime. However, there is
no documentary evidence in the case to be given as a prima facie evidence of the age of the
accused. But, this whole chain of circumstances lead to confusion in regards to the age of the
accused, which is clearly a result of inefficient investigation.

In the case of State of U.P. v. WasifHaider etc. 2the hon’ble SC has clearly observed that
benefit of doubt arising out of a faulty investigation accrues in favor of the accused. Thus, the
benefit of doubt in the present case about the age of the accused that whether he is a juvenile
or not should be given to the accused as the fault of investigating agency of not getting cogent
evidence about the age of the accused should not be the reason which may lead to grave
miscarriage of justice by this hon’ble court.

1.3 JUVENILITY AND MURDER

It is most humbly submitted before the hon’ble Court of Session that in the present case
before the court, the accused has been charged u/s 302 of IPC, 1860, for the offence of
murder along with other offences. Though the murder is a heinous offence, but in the case of,
NARAYAN CHETANRAM CHAUDHARY & ANR. Vs THE STATE OF
MAHARASHTRA3,

11.
(1982 (2) SCC 351).

2
2. (2019 AIR(SC)38.
3. R.P.(Crl.) Nos.1139-1140/2000 In Crl.A. Nos.25-26/2000),

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 4

where the accused was sentenced with death penalty for the offence of murder in the year
2,000 by the apex court, after more than a decade and half of the sentence the plea of
juvenility was raised before the hon’ble SC and the court observed that The instant case
reflects gross lethargic and negligent attitude of the State. In view of the pendency of the
matter, we are restrained from observing anything further.

Keeping in view Section 9(2) of the Act, we have no other option but to refer the matter to the
Principal District and Sessions Judge, Pune, to decide the juvenility of the applicant.
In another case of Chandrika Kumar and others vs. State of Bihar 4, where the accused was
convicted for murder along with unlawful assembly the hon’ble HC of Patna observed that
The requirement of law is that if plea of juvenile is taken before the Court and if the Court is
not satisfied then an inquiry has to be made. It appears that a plea was taken in the trial Court
but the same was rejected without holding any inquiry. This act of the trial Court cannot be
held to be legal.

In the above cited case the HC followed that apex court judgment of in the case of
BholaBhagat v. State of Bihar5 In similar situation, the apex Court considering several
decisions of the apex Court has maintained conviction but set aside the sentence. Therefore,
we also on the same line uphold the conviction of the appellants Ganesh Kumar and Arun
Kumar but set aside the sentence. Now, they are not required to surrender to serve the
remaining period of sentence.

Thus, if again in the present case this plea will be ignored then the ends of justice and the best
interest of a child will be infringed. No doubt that facts are silent about material evidence
about the age of the accused, but the fact that the accused and his friends were celebrating his
16th Birthday cannot also be denied.

In another case of, Chandankumar v. State of Jharkhand6the HC of Jharkhand held that

“Section 7-A of the Act provides procedure to be followed when claim of juvenility is raised
before any court. Section 7-A runs thus:

4
2001(1) ECrC 535
5. 1997 (2) PLJR 161
6.
(Criminal Appeal (DB) No. 777 of 2009. D/d. 20.8.2013.)

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"7-A. Procedure to be followed when claim of juvenility is raised before any court. - (1)
Whenever a claim of juvenility is raised before any court or a court is of the opinion that an
accused person was a juvenile on the date of commission of the offence, the court shall make
an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine
the age of such person, and shall record a finding whether the person is a juvenile or a child
or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at
any stage, even after final disposal of the case, and such claim shall be determined in terms of
the provisions contained in this Act and the rules made thereunder, even if the juvenile has
ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under
sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and
the sentence if any, passed by a court shall be deemed to have no effect."

25. On plain reading of the said Section, we find that the claim of juvenility can be raised and
determined, at any stage, even if the juvenile has ceased to be so, on or before the date of
commencement of this Act.

26. In view of that provision, the appellant's claim was entertained by this Court and got
enquired by the Board.

27. The Juvenile Justice Board, Garhwa after holding enquiry reported that the appellant was
juvenile on the date of commission of the offence. The said report has not been challenged by
the State-Respondent.

28. Section 7-A(2) provides that if the court finds a person to be a juvenile on the date of
commission of the offence, it shall forward the juvenile to the Board for passing appropriate
order, and the sentence if any, shall be deemed to have no effect.

29. Once the appellant is held to be a juvenile, he should have been forwarded to the Board
for passing appropriate order under the said provision.”

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Also in its judgment the HC referred to LakhanLal v. State of Bihar7 where appellant-
LakhanLal was aggrieved by dismissal of his criminal appeal by the High Court, whereby his
conviction under Section 302 read with Section 34 of the Indian Penal Code for committing
murder was affirmed by the High Court. In course of hearing of the appeal by the Apex Court
it was submitted that at the time of commission of the offence, the said appellant was a
juvenile within the meaning of Section 2(k) of the said Act and therefore, the order of
sentences passed against the appellant are liable to be set aside. Hon'ble Supreme Court
thereafter considered the said submissions in the light of earlier judicial pronouncements,
including the decision of the Constitution Bench in the case of Pratap Singh v. State of
Jharkhand and another8 and the decisions in the cases of BholaBhagat v. State of Bihar,
1997 (8) SCC 720; Gopinath Ghosh v. State of West Bengal, 1984 Supp. SCC 228; Bhoop
Ram v. State of U.P., 1989 (3) SCC 1 and Pradeep Kumar v. State of U.P., 1995 Supp. (4)
SCC 419. Hon'ble Apex Court then ruled that while sustaining the conviction of the appellant
for the charges, sentences awarded to them need to be set aside. In the case of LakhanLal
(supra), on the date of consideration, the appellants had crossed the age of 40 years. It was,
thus, held that it would not be conducive to the environment in the special home and also in
view of the fact that they had undergone an actual period of sentences of more than three
years the maximum period provided under Section 15 of the 2000 Act. While sustaining the
conviction of the appellants for the offences punishable under Section 302 read with Section
34 of the Indian Penal Code, the sentences awarded to them was set aside.

1.4 JUVENILITY AND RAPE

It is further submitted before the Hon’ble Court of Session that the accused has also been
charged with the offence of Rape u/s 376 of tge IPC. Things being so, on 16th December,
2012 a young lady was brutally raped and grievously injured inside a moving bus at New
Delhi by six persons including a juvenile, who had attained the age of 17 years at the time of
incident. After the most gruesome gang rape she was thrown out of the bus. The nation was
shocked by this dreaded maniacal incident and it evoked grave protest all around raising
question on the safety of woman in the country.

7. AIR 2011 Supreme Court 842

8. AIR 2005 SC 2731

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The brave lady succumbed to her injuries on 29/12/2012 amidst the prayers of the whole
nation for her life. There arose wide hue and cry demanding the hanging of the persons
including the juvenile who perpetuated this brutality. There were even demands from many
quarters that the protection of juvenile from the regular criminal justice system must be done
away with. Many asked for lowering the age of Juvenility. The case came to be referred as the
‘Nirbhaya case’. The whole nation was empathetic to the brave soul of ‘Nirbhaya’ and
showed solidarity to her family. But the nation was divided on the issue as to what ought to be
the proper age of juvenility, with most experts/people having field work experience on child
rights on one side advocating for persisting with 18 years and on the other hand a mob of
emotional hearts for lowering the age limit.
The government appointed Justice J.S Verma Committee, which in addition to the former
Chief Justice of India Late Justice J. S Verma comprised of very eminent Lawyers and Social
activists, to look into the possible amendments to the Criminal Law to provide for quicker
trial and enhanced punishment to the persons committing sexual offences of extreme nature
against women as an aftermath of the dreaded ‘Nirbhaya incident’. The said committee took
up the task very effectively and after extensive hearings and thorough scientific analysis came
with a report. The government was pleased to bring in amendments in criminal law especially
in the law relating to rape, intune with the recommendations, through the Criminal Law
Amendment Act 2013. The Verma Committee specifically considered the issue relating to
reduction of age of juvenile from 18 years to 16 years. The Committee dealt with the matter
in paragraphs 44 to 55 of the Report, in para 44 the Committee said, “We have heard experts
on the question of reduction of the age of a juvenile from 18 to 16 for the purpose of being
tried for offences under various laws of the country.”Ultimately after a thorough evaluation of
the issue, the Committee held that, “We are of the view that the material before is sufficient
for us to reach the conclusion that the age of ‘juveniles’ ought not to be reduced to 16 years”

No doubt the offence of rape is a heinous offence but ingredients of any criminal act as
provided u/s 8 of the IEA, 1872 are intention @ mens rea, preparation and conduct @
actusreus. But if we look into section 86 of the IPC which provides that, “Offence requiring a
particular intent or knowledge committed by one who is intoxicated.—In cases where an act
done is not an offence unless done with a particular knowledge or intent, a person who does
the act in a state of intoxication shall be liable to be dealt with as if he had the same
knowledge as he would have had if he had not been intoxicated, unless the thing which
intoxicated him was administered to him without his knowledge or against his will.”

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If the provision is looked into the first part talks about intention and knowledge but the
second part only talks about knowledge. Thus, when there is no mens rea of the accused to
commit the crime, tge heinousness of crime is affected. In the case of Mirza Ghani Baig v.
State of Andhra Pradesh9,it was held that the prosecution has to prove that in spite of
drunkenness the accused had intention to commit the act forbidden by law.
Another notable fact to look into is that though the DNA profiling test has been conducted the
result in the report has not been mentioned in the facts before the Court. Explaining about
evidentiary value of the DNA profiling report the hon’ble SC in the case of
RajendraPralhadraoWasnik v. State of Maharashtra 10 the court observed that More recently,
in Mukesh and Anr. v. State (NCT of Delhi) 11,there is a brief reference to Section 53-A and
Section 164-A of the Cr.P.C. What is important in this brief reference is the acknowledgment
that DNA evidence is being increasingly relied upon by courts. It was observed in paragraphs
216 and 217 as follows:
"216. In our country also like several other developed and developing countries, DNA
evidence is being increasingly relied upon by courts. After the amendment in the
Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA
profiling has now become a party of the statutory scheme. Section 53A relates to the
examination of a person accused of rape by a medical practitioner."
"217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical
examination of the victim of rape, the description of material taken from the person of
the woman for DNA profiling is must."
(Emphasis supplied by us).

54. For the prosecution to decline to produce DNA evidence would be a little unfortunate
particularly when the facility of DNA profiling is available in the country. The prosecution
would be well advised to take advantage of this, particularly in view of the provisions of
Section 53-A and Section 164-A of the Cr.P.C. We are not going to the extent of suggesting
that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly
of the view that where DNA profiling has not been done or it is held back from the Trial
Court, an adverse consequence would follow for the prosecution.

9.
(1997 2 crimes 19 AP)
10.
2019 AIR SC 1
11
(2017) 6 SCC 1

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55. In Mukesh a separate opinion was delivered by Justice Banumathi and in paragraph 455
of the Report it was held that DNA profiling is an extremely accurate way of comparing
specimens and such testing can make a virtually positive identification. It was stated:
"455. DNA profiling is an extremely accurate way to compare a suspect's DNA with
crime scene specimens, victim's DNA on the blood-stained clothes of the accused or
other articles recovered, DNA testing can make a virtually positive identification
when the two samples match. A DNA finger print is identical for every part of the
body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It
cannot be changed; it will be identical no matter what is done to a body. Even
relatively minute quantities ofblood, saliva or semen at a crime scene or on clothes
can yield sufficient material for analysis. The Experts opine that the identification is
almost hundred per cent precise. Using this i.e. chemical structure of genetic
information by generating DNA profile of the individual, identification of an
individual is done like in the traditional method of identifying finger prints of
offenders."
(Emphasis supplied by us)

Hence, non availability of such a report leads to a strong inference against the case of
prosecution. In such a situation the plea of juvenility raised by the accused should not be
denied on the basis of such vague facts and on the basis of non availability of material
evidence to prove the guilt of the accused the principle of child’s best interest cannot be
denied.

1.5 JUVENILTY AMD ROBBERY

In the present case before the Court the accused has been charged for committing robbery u/s
392 and 394 of the IPC. Section 392 provides that “Whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend to ten years, and shall
also be liable to fine; and, if the robbery be committed on the highway between sunset and
sunrise, the imprisonment may be extended to fourteen years.” Section 394 of the IPC
provides that “Voluntarily causing hurt in committing robbery.—If any person, in
committing or in attempting to commit robbery, voluntarily causes hurt, such person,
and any other person jointly concerned in committing or attempting to commit such
robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to fine.”
 10

It is humbly submitted before the hon’ble court that the facts of the case provides that it was
alleged that the accused ransacked victim and ran away with her phone. The word ransacked
in simple dictionary means to search roughly. However, causing hurt has not been mentioned.
Whereas section 394 applies only when hurt is caused in committing robbery. But in the
present case facts nowhere provide that hurt has been caused while committing robbery.
Moreover, the postmortem report nowhere provides of any hurt caused by the accused while
committing the offence of robbery that has been alleged by the prosecution case.
Hereby, it is most humbly plead before the court that without any laid chain of circumstantial
evidence the plea of juvenility should not be denied to the accused.

1.6 OTHER FACTORS SUPPORTING THE PLEA OF JUVENILITY

It is most humbly submitted before the court that in the present case following factors support
the issue of maintainability of plea of juvenility:-

Facts are silent about the preliminary assessment required to be made u/s 15 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 which is mandatory where a child is in
conflict with law. In the case of Bhola v. Central Bureau of Investigation 12the Punjab and
Haryana HC observed that “In the present case, the petitioner, being more than 16 years of
age as on the date of commission of alleged offence, the matter had to be considered in view
of provisions of Section 15 of Act for the purpose of making preliminary assessment, as to
whether the child in conflict with law had to be tried as an adult or not. The three parameters
as provided under Section 15 of the Act are required to be followed strictly. The Act of 2015
has been enacted by the Parliament under the powers available under Article 253 of the
Constitution of India, the age for trying the child/juvenile as an adult has been reduced from
18 to 16 years.

20. The proviso to Section 15 enables the Board to take the assistance of any experienced
psychologist or other experts to make the Preliminary Assessment. It is clearly mentioned in
para No.17 of order dated 20.12.2017 passed by the Board that in case, the opinion/assistance
of any expert is required, the same be taken. It is necessary to assess the mental capacity of
the juvenile. It was mandatory for the Board to assess the mental capacity of the alleged
offender to commit such an offence and also the ability to understand the consequences of the
same.
12
(2019 (1) R. C. R (Criminal) 603)

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It is also clear from the order that the clinical psychologist has himself suggested that if any
further assessment is required, the juvenile may be sent to the Institute of Mental Health at
Rohtak. However, it has completely been ignored by the Board and the assessment is based
on inappropriate tests, namely, coloured Progressive Matrices (CPM) and Malin's Intelligence
Scale for India Children (MISIC) meant for children between the ages of 5-11½ and 5-15 has
been taken as the basis for the determination of the mental capacity of a child of 16½ years.
Both the Board as well as the Appellate Authority have completely ignored this fact.” Also in
the case of Dr. Subramanian Swamy and ors v. Raju 13,it has been observed that true test of
juvenility is not age but the mental maturity of the accused. The same has been followed in
P&H HC judgment of Ranjit Singh @ Rana v. State of Punjab 14 ( Cr. rev. No. 2645 of 2013
Or. Dt. 28 nov, 2017).

In another case of Manas Kumar Khuntia v. State of Orissa 15a case of rape, it has been held
by the HC of Orissa that preliminary assessment as to mental and physical understanding
regarding offence and its consequences in a case of heinous offence is a must where the child
has completed or is above the age of 16 years. Thus, matter was remanded for preliminary
assessment to the JJ Board.

 Another fact needed to be considered that facts are silent that is the accused first
offender or not. Hence such benefit of doubt should be given to the accused. Not only
it is well settled authority but a rule to be adopted and followed by the judicial system
that a person charged under criminal and is a first offender, fact of first offender
should be considered.
 Benefit of doubt is another factor to be considered. It is well settled law that any
benefit of doubt in any case is to be gone to the accused. In the case of GhureyLal vs
State Of U.P. 16 the SC held that “33. In the concluding paragraph of the judgment, the
trial court observed that when neither the prosecution nor the defence version is
complete, then it is obvious that both the parties are withholding some information
from the court. The burden of proving the charge to the hilt lies upon the prosecution.
It has failed to discharge its burden. Thus, the benefit has to go to the accused.
According to the trial court, the accused could not be convicted for the charges
framed against him. He was entitled to get the benefit of doubt and, consequently, the
accused had to be acquitted of the charges under sections 302, 307 and 323 IPC.”

13
2014 AIR (SCW) 2021
14
2018(1) R. C. R. (Cri.) 672
15
2016(65) Orissa Cri. R 496)
16
2008 (10) SCC 450
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 Rule u/s 9 of JJ Act, 2015 is to be looked into. Section 9 provides that Procedure to
be followed by a Magistrate who has not been empowered under this Act.

1. When a Magistrate, not empowered to exercise the powers of the Board under
this Act is of the opinion that the person alleged to have committed the offence
and brought before him is a child, he shall, without any delay, record such
opinion and forward the child immediately along with the record of such
proceedings to the Board having jurisdiction.

2. In case a person alleged to have committed an offence claims before a court

other than a Board, that the person is a child or was a child on the date of
commission of the offence, or if the court itself is of the opinion that the person
was a child on the date of commission of the offence, the said court shall make an
inquiry, take such evidence as may be necessary (but not an affidavit) to
determine the age of such person, and shall record a finding on the matter,
stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognized at
any stage, even after final disposal of the case, and such a claim shall be determined in
accordance with the provisions contained in this Act and the rules made there under
even if the person has ceased to be a child on or before the date of commencement of this
Act.

4. If the court finds that a person has committed an offence and was a child on the
date of commission of such offence, it shall forward the child to the Board for
passing appropriate orders and the sentence, if any, passed by the court shall be
deemed to have no effect.

5. In case a person under this section is required to be kept in protective custody,

while the person’s claim of being a child is being inquired into, such person may
be placed, in the intervening period in a place of safety.

 It is further submitted that in India reformative approach is being followed in criminal

law. It provides that a criminal should be reformed rather than being punished.

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PRAYER

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Hon’ble Court, that it may be
graciously pleased to adjudge and declare that -

1. The plea of juvenility is maintainable.

2. The Court should either inquire itself into the matter or commit the case to the
Juvenile Justice Board.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best
Interests of Justice, Fairness, Equity & Good Conscience.

For This Act of Kindness, the Accused Shall Duty Bound Forever Pray.

Date: …………………… Sd/-

Place ………………… (Counsel for Accused)

Memorial on Behalf of Accused