31ST ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION – 2015

TC-18

Before

THE HONORABLE HIGH COURT OF PURVA PRADESH

2016

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDICA

IN THE MATTER OF:

HUMAN RIGHTS ORGANISATION - - - - - - PETITIONER

V.

STATE OF PURVA PRADESH - - - - - - - RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

-MEMORANDUM FOR THE PETITIONER-

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TABLE OF CONTENTS

INDEX OF ABBREVIATIONS - - - - - - - II
INDEX OF AUTHORITIES - - - - - - - - IV
STATEMENT OF JURISDICTION - - - - - - - VII
STATEMENT OF FACTS - - - - - - - - VIII
QUESTIONS PRESENTED - - - - - - - - X
SUMMARY OF ARGUMENTS - - - - - - - XI
PLEADINGS AND AUTHORITIES - - - - - - - 1
I. WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226? - -1
II. WHETHER THE TRIAL OF THE ACCUSED WAS VITIATED BY ILLEGALITY? - -2
A. COURT FAILED TO FOLLOW ESTABLISH PROCEDURE AND APPLIED UNCONSTITUTIONAL
PROVISION TO DECIDE THE CASE.

B. INEFFECTIVENESS OF DEFENCE COUNSEL DURING THE TRIAL CAUSED MR. X DEATH

PUNISHMENT.
C. CONFIRMATION OF THE DEATH SENTENCE BY HIGH COURT WAS PATENTLY ILLEGAL.
III. WHETHER THERE HAVE BEEN VIOLATIONS OF CONSTITUTIONAL PROVISION IN THE

PRESENT CASE? - - - - - - - - - - 4
A. MERCY PETITION REJECTED BY THE PRESIDENT OF INDICA IS NOT AS PER ARTICLE 72
OF CONSTITUTION OF INDICA AND SETTLED POSITION OF LAW.

B. EXECUTION OF DEATH SENTENCE OF MR . X WILL VIOLATE ARTICLE 14 ENSHRINED

UNDER CONSTITUTION OF INDICA.

C. EXECUTION OF MR. X WOULD LEAD TO VIOLATION OF ARTICLE 21 & 22.

PRAYER XII

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INDEX OF ABBREVIATIONS

¶ Paragraph

& And

AIR All India Reporter

AP Andhra Pradesh

All. Allahabad

Anr. Another

Bom. Bombay

CCR Current Criminal Reports

Co. Company

CrPC Criminal Procedure Code

Crl.A. Criminal Appeal

Edn. / Ed. Edition

FIR First Information Report

Govt. Government

Hon`ble Honorable

I.L.R Indian Law Reporter

Id. Ibid

L.J. Law Journal

Ltd. Limited

Mr. Mister

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Mad. Madras

MP Madhya Pradesh

No. Number

HC High Court

Ors. Others

Pg. Page

Raj. Rajasthan

Re. Reference

Pvt. Private

SCC Supreme Court Cases

SCR Supreme Court Reporter

SC Supreme Court

Sd/ Signed

UP Uttar Pradesh

UOI Union Of India

V. Versus

Vol. Volume

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INDEX OF AUTHORITIES

CASES REFERRED

SUPREME COURT CASES

1. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

2. Bapu Limbaji Kamble v. State of Maharashtra, (2005) 11 SCC 412.

3. Bhagvan singh v. State of Punjab, AIR 1952 SC 214.

4. Bhagwan Bax Singh & Anr. v. State of U.P., AIR 1983 SC 473.

5. Ediga Anamma v. State of A.P., 1974 SCR (3) 329.

6. Epuru Sudhakar v. Govt. of A.P, AIR 2006 SC 3385

7. Indian Banks' Association v. Devkala Consultancy Service & Ors., AIR 2004 SC 2615.

8. Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104.

9. Kartar Singh v. State of Punjab (1994) 3 SCC 569.

10. Kunhayammed v. State of Kerala, [2000] 245 ITR 360 (SC).

11. Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602.

12. Mahendra Nath Das v. Union of India & Ors., (2013) 6 SCC 253.

13. Man Singh v. State of M.P., 2008 9 SCC 542.

14. Masathi v. State of U.P., AIR 1965 SC 202.

15. Md. Sukur Ali v. State of Assam, AIR 2011 SC 1222.

16. Mithu v. State of Punjab, AIR 1983 SC 473.

17. Mohd. Hussain Julfikar Ali v. The State (Govt. of NCT) Delhi, AIR 2012 SC 750.

18. Pritam Singh v. The State, AIR 1950 SC 169.

19. Rama Shankar v. State of W.B., AIR 1962 SC 1239.

20. Ranchoddas Wasava v. State of Gujarat, AIR 1974 SC 1143

21. S. P. Gupta v. Union of India, AIR 1982 SC 149.

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22. Sadhu Singh v. State of U.P., AIR 1978 SC 1506.

23. Saibanna v. State Of Karnataka, App. (Cr.) 656 of 2004.

24. Shatrughan Chauhan & Anr. v. Union of India & Ors., (2014) 3 SCC 1.

25. Sher Singh v. State of Haryana, 2015 (1) ACR 326 (SC).

26. Sher Singh v. State of Punjab, (1983) 2 SCC 344.

27. State of Manipur v. Thingujam Brojen Meetei, AIR 1996 SC 2124.

28. State of U.P. v. Iftikar khan, AIR 1973 SC 863.

29. State of U.P. v. Lalla Singh, AIR 1978 SC 368.

30. Subbaiah Ambalam v. State of Tamil Nadu, AIR 1977 SC 2046.

31. Sudam v. State of Maharashtra, (2011) 7 SCC 125.

32. Sunil Batra v. Delhi Administration, (1979) 1 SCR 392.

HIGH COURT CASES

1. PUDR v. Union of India, 2015 CriLJ 4141.

2. Ram Awadh v. State of UP., 1999 CriLJ 4083.

3. Sagri v. State of M.P., 1991 (1) Crimes 580 (MP).

4. State of Madras v. G. Krishnan, AIR 1961 Mad. 92.

5. State of U.P. v. Sahai, 1981 CriLJ 1034.

6. Sukanraj v. State of Rajasthan, AIR 1967 Raj 267.

FOREIGN CASES

1. Furman v. State of Georgia, 408 US 238.

2. McMillann v. Richardson, 397 US 759, 771 n. 14 (1970).

STATUTES AND OTHER AUTHORITIES

1. Central Prison Manual

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2. “Procedure regarding petitions for mercy in death sentence” (framed by Ministry of

Home Affairs, Govt. of Indica)

3. Indian Penal Code, 1860

4. Code of Criminal Procedure, 1973

5. Indian Evidence Act, 1872

JOURNALS REFERRED

1. All India Reporters

2. Crimes

3. Criminal Law Journal

4. Supreme Court Cases

BOOKS REFERRED

1. Basu D.D., Commentary of the Constitution of India, (8th ed., 2011), Vol.1. & Vol.2.

2. C. K. Takwani & M.C. Takwani, Criminal Procedure (3rd Ed., Lexis Nexis

Butterworths Wadhwa, Nagpur, 2011)

3. Datar A.P., Datar on Constitution of India, (1st ed., 2001), Wadhwa and Co.

4. Dr. K.I. Vibhute, P S A. Pillai Criminal Law (11thEd., Lexis Nexis Butterworths

Wadhwa, Nagpur)

5. Jain M.P., Indian Constitutional Law, (6th ed., 2010), Lexis Nexis Butterworths

Wadhwa, Vol.1.

6. John Woodroffe, Commentaries On Code Of Criminal Procedure, 1972 (Law

Publishers (India) Pvt. Ltd., 2009)

7. Justice C.K. Thakkar, Encyclopaedia Law Lexicon, (Ashoka Law House, New Delhi,

2010)

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8. Justice GP Singh, Principles Of Statutory Interpretation (13thEd., Lexis Nexis

Butterworths Wadhwa, Nagpur)

9. K.D. Gaur, Commentary on the Indian Penal Code (2ndEd., Universal Law Publishing

Co. Pvt. Ltd., 2013)

10. K.D. Gaur, Criminal Law Criminology and Administration of Criminal Justice (3rd

Ed., Universal Law Publishing Co Pvt Ltd., 2015)

11. Kashyap S.C., Constitution of India, (2006), Universal Law Publishing Co.

12. M.R. Mallick, R.K. Bag, A.N. Saha Criminal Reference (6thEd., Eastern Law House,

2009)

13. R. P Kathuria`s, Law of Crimes and Criminology (3rd Ed.,Vinod Publications, 2014)

14. S.C. Sarkar, P.C. Sarkar & Sudipto Sarkar, The Code Of Criminal Procedure (11th

Ed., Lexis Nexis 2015)

15. Sathe S.P., Administrative Law, (7th ed., 2004), Lexis Nexis Butterworths Wadhwa.

16. Seervai .H.M., Constitutional Law of India, (4th ed., 2010), Universal Law

Publishing Co., Vol.2 & Vol.1.

17. Underhill`s Criminal Evidence, Fifth d. Vol. I, p. 664.

LEGAL DICTIONARIES

1. Aiyer, P.R., Advanced Law Lexicon, (3rd ed., 2005).

2. Encyclopaedic law lexicon.

3. Garner B.A., Black‟s Law Dictionary, (9th ed., 2009).

4. Greenberg Daniel, Stroud‟s Judicial Dictionary of Words and Phrases, (4th ed.),

Sweet and Maxwell, Vol. 4.

5. Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).

6. Oxford Advanced Learners Dictionary, (7th ed., 2008).

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DATABASES REFERRED
1. http://www.scconline.com (last visited on 13th January, 2016).

2. http://www.manupatra.com (last visited on 12th January, 2016).

3. http://www.westlaw.org (last visited on 17th January, 2016).

4. http://www.indiankanoon.com (last visited on 15th January, 2016).

5. http://www.lexisnexis.com (last visited on 15th January, 2016).

6. http://www.judis.nic.in (last visited on 11th January, 2016).

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STATEMENT OF JURISDICTION

The counsels representing the petitioner have endorsed their pleadings before the
Hon`ble High Court of Purva Pradesh under Article 226 of the Constitution of Indica in
which the Hon`ble Court has the jurisdiction.1

The present memorandum sets forth the facts, contentions and arguments.

1
Article 226, in The Constitution Of India 1950:
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.

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STATEMENT OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are
summarized as follows:
1. Mr. X murdered his wife in a drunken rage at his house. The neighbours caught hold
of Mr. X and handed him to the police. Mr X was tried by the Court and convicted of
offences punishable under S.302 of IPC and sentenced to life imprisonment in 1984.
2. Mr. X was sent to the central prison in Purva Pradesh. While he was there, he became
close friends with his cellmate, Mr Y. With time, X and Y became friends and Y
suggested that X marry his daughter.
3. In the year 1987, X and Y obtained parole from the prison and the marriage between
X and Y‟s daughter was solemnized. X‟s wife delivered twin baby boys.
4. However, by the year 1990, X had started suspecting the fidelity of his wife. One
night, X was seized by rage. He seized an agricultural implement and hacked his wife
to death. He then killed his two children who were sleeping.
5. According to the neighbours who rushed in, X was trying to commit suicide by
hanging himself when they discovered him and overpowered him.
6. The lawyer did not cross examine witnesses of the prosecution nor did he produce any
evidence on behalf of the defence. The Sessions Court sentenced X under S.302 and
303 of the IPC to death.
7. The matter was referred to a third judge of the High Court when division bench could
not come on consensus, third judge felt that there was no discretion in the matter and
confirmed the sentence of death. Mr X submitted a mercy petition to the President of
Indica which came to be rejected in the year 1996.
8. Due to oversight on behalf of the prison authorities, Mr X was not kept in the death
row cells at the prison, it is only in the year 2011, that the same was discovered and
the prisoner was sent to death row confinement.
9. On 01.01.2013, the black warrant for the execution of Mr X was issued by the
appropriate court. The very next day, lawyers representing a human rights
organisation filed a writ petition claiming that Mr. X cannot be executed on the
grounds that his trial is vitiated by illegality and his execution would violate several
provisions of the Constitution of Indica.

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QUESTIONS PRESENTED

The following questions are presented before this Hon‟ble court for adjudication in the
instant matter:

I. WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226?

II. WHETHER THE TRIAL OF THE ACCUSED WAS VITIATED BY ILLEGALITY?

III. WHETHER THERE HAVE BEEN VIOLATIONS OF CONSTITUTIONAL PROVISIONS IN

THE PRESENT CASE?

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SUMMARY OF ARGUMENTS

I. THE PRESENT WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226.

It is humbly submitted before this Hon‟ble Court that in present case writ petition is
maintainable as PIL as it serves public purpose then such writ petition is
maintainable as public interest litigation under Article 226. Also, the present writ
petition does not hit by principles of res judicata when SLP is dismissed.

II. THE TRIAL OF THE ACCUSED WAS VITIATED BY ILLEGALITY.

It is humbly submitted before this Hon‟ble court that trial of the accused was
vitiated by enormous illegality. Accused was convicted by Sessions Court on the
basis of section 303 of IPC which has been declared unconstitutional. Defense
counsel was disinterested. Due to ineffectiveness of the defense counsel, accused
was deprived of these significant rights during the trial. Section 303 of IPC is
unconstitutional but still third judge of the high court did not intervene in the matter
which shows gross illegality in the trial of the accused.

III. THERE HAVE BEEN VIOLATIONS OF CONSTITUTIONAL PROVISION IN THE

PRESENT CASE.
It is humbly submitted before this honorable court that there have been grave
violations of Mr. X‟s fundamental rights envisaged under Articles 14, 21 & 22 by
High Court, Executive and State Government. President of Indica has rejected Mr.
X mercy petition without taking relevant materials into consideration. High Court
has confirmed his death sentence by overlooking the position of law related to
Section 303 of IPC, 1860. State government was also not able to fix a date of
execution leading to constant torture & fear to the accused.

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PLEADINGS AND AUTHORITIES

I. THE PRESENT WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 226.

1. It is humbly submitted before this Hon‟ble Court that if a writ petition filed in interest of one
person, serves public purpose then such writ petition is maintainable as public interest
litigation under Article 226.2 In the recent case of PUDR v. Union of India3, Allahabad High
Court also accepted writ petition as PIL which was filed for one person because it was
serving the public purpose4. Thus, in the present case writ petition is maintainable as PIL.
2. In addition to the above, the present writ petition does not hit by principles of res judicata
because of the rejection of Mr. X‟s Special Leave Petition by Supreme Court. It is settled
position of law that principle of res judicata is applicable to subsequent proceedings only
when leave is granted to the Special Leave Petition.5 In the present case, Mr. X‟s Special
Leave Petition was refused admission by Apex Court of Indica stating that it did not raise any
issue of legal importance.6 However, Court never granted leave to the petition at first place
which means it was never heard by the Court and rejected the petition prima facie.
3. Supreme Court in the case of Kunhayammed v. State of Kerala,7elaborately considered the
legal implications and the impact of an order rejecting the SLP under Article 136 of the
Constitution of India and held, “Whatever be the phraseology employed in the order of
dismissal, it is non-speaking order, i.e., it would neither attract the doctrine of merger so as
to stand substituted in place of the order put in issue before it nor would it be a declaration
of law by the Supreme Court under Article 141 of the Constitution for there is no law which
has been declared. If the order of dismissal be supported by reasons then also the doctrine of
merger would not be attracted because the jurisdiction exercised was not an appellate
jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal”
4. Thus, when SLP is dismissed, the same does not amount to confirmation by the Supreme
Court against the order in which leave was sought for.

II. THE TRIAL OF THE ACCUSED WAS VITIATED BY ILLEGALITY.

2
Indian Banks' Association, Bombay & Ors, v. Devkala Consultancy Service and Ors. AIR 2004 SC 2615.
3
2015 CriLJ 4141.
4
Maharaj Singh v. State of Uttar Pradesh, AIR 1976 SC 2602; See also: Bandhua Mukti Morcha v. Union of
India, AIR 1984 SC 802, S. P. Gupta v. Union of India, AIR 1982 SC 149.
5
State of Manipur v. Thingujam Brojen Meetei, AIR 1996 SC 2124.
6
Sudam v. State of Maharashtra, (2011) 7 SCC 125; See also: Pritam Singh v. The State, AIR 1950 SC 169.
7
[2000] 245 ITR 360 (SC).

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5. It is humbly submitted before this Hon`ble court that trial of the accused was vitiated by
enormous illegality right from the commencement to the conclusion. Firstly, accused was
sent to the police custody instead of judicial custody, secondly, he was convicted by
Sessions Court under section 303 of I.P.C. which is an unconstitutional provision and
finally High Court also confirmed death punishment without applying discretion and
ignoring the illegalities in the trial.
A. Court failed to follow establish procedure and applied unconstitutional provision
to decide the case.
6. In the present case, procedure adopted by court in trial and its decision is patently illegal.
In order to understand illegality in the procedure, we have to understand basic objective of
recording a statement under Section 164 of Cr.P.C. It is done so that such statement could
be used as confession in case the person making them is ultimately charged with an
offence.8 Thus, it can be deduced that all the confessions are statements.
7. In the present case Mr. X has made confession in police custody, however, when Mr. „X‟
was produced before the magistrate under section 164 of the Cr.P.C., he refused to make
any statement.
8. Now, from this instance it can be easily inferred that accused refused to make confession.
As per section 164(3) of the Cr.P.C., once accused refuses to give confession, he has to be
sent in judicial custody.9 However, in present case magistrate remanded him back to the
police custody. 10 This is gross violation of section 164(3) of the Cr.P.C. and such
negligence committed by magistrate clearly establishes procedural illegality in the trial.
9. Furthermore, decision of Sessions Court i.e. conviction of Mr. X was entirely based on
section 303 of I.P.C, and section 302 was only used for corroboration. If decision would
have been given on the basis of section 302, then as required by section 354 (3) of the
Cr.P.C., Sessions Court would have mentioned special reasons for awarding death sentence
because capital punishment is exception and life imprisonment is rule. However, Sessions
Court solely relied on section 303 of IPC instead of section 302 as section 303 excludes
judicial discretion that is why, court did not give any reasons while giving death sentence.
10. Aforesaid mentioned proposition can be affirmed through this fact that Mr. X was charged
under section 302 and 303 of IPC, during this entire period of four years in the proceedings
this section 303 was kept as it is by Sessions Court. Though, Sessions Court is bound to

8
State of Madras v. G. Krishnan, AIR 1961 Mad 92.
9
Bhagvan Singh v. State of Punjab AIR 1952 SC 214.
10
„Remand‟ meaning: to send back (as per Encyclopaedic law lexicon, pg. 4049).

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11
remove such an illegal provision as it has been already declared void and
unconstitutional.12Therefore, decision of the Sessions Court in the present case is illegal.
B. Ineffectiveness of defense counsel during the trial caused Mr. X, punishment of
death.
11. Government counsel on the behalf of Mr. X was disinterested since the beginning of the
trial. Defense counsel who had duty to defend accused, nowhere showed tendency to
protect him. Due to ineffectiveness of the defense counsel, accused was deprived of his
significant rights during the trial which finally resulted in his sentence to death.
12. It is the basic principle of jurisprudence that cross-examination is an acid-test of the
truthfulness of the statement made by a witness, the objects of which are: (1) to destroy or
weaken the evidentiary value of the witness of his adversary, (2) to elicit facts in favor of
the cross-examining lawyer's client from the mouth of the witness of the adversary party
(3) to show that the witness is unworthy of belief by impeaching the credit of the said
witness.13 Such an important exercise was missed by the defense counsel which is a gross
negligence on his part.14 He also did not produce even single evidence on behalf of the
accused to defend him despite of this fact that cross examination and production of the
evidence are most fundament aspects of fair trial.15
13. In addition to the above, defense counsel did not object to the illegal police custody of the
Mr. X and decision of the Sessions Court which was based on an unconstitutional
provision. It shows that he was ineffective during the trial which cost Mr. X death
sentence. Therefore, the accused in criminal case should not suffer for the fault of his
counsel.16
C. Confirmation of the death sentence by High Court was patently illegal.
14. Third judge of the High Court, whom this matter was referred, refused to entertain the
matter stating that he had no discretion due to the applied provisions by the Sessions Court
and the nature of the crime. He took the ground of applied provisions, mainly section 303
of IPC which states that whoever, being under sentence of imprisonment for life, commits
murder, shall be punished with death. However, this provision has already been declared

11
Saibanna v. State of Karnataka, App. (Cr.) 656 of 2004.
12
Mithu v. State of Punjab, AIR 1983 SC 473; See also: Bhagwan Bax Singh &Anr. v. State of U.P., AIR 1983
SC 473.
13
Kartar Singh v. State of Punjab (1994 ) 3 SCC 569.
14
Sukanraj v. State of Rajasthan, AIR 1967 Raj 267.
15
Mohd. Hussain Julfikar Ali v. The State (Govt. of NCT) Delhi, AIR 2012 SC 750;See also: Jayendra Vishnu
Thakur v. State of Maharashtra, (2009) 7 SCC 104.
16
Md. Sukur Ali v. State of Assam, AIR 2011 SC 1222; See also: Man Singh v. State of M.P., 2008 9 SCC 542;
Bapu Limbaji Kamble v. State of Maharashtra, (2005) 11 SCC 412.

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unconstitutional as it excludes judicial discretion. 17 Thus, his non-intervention on this

ground shows gross illegality in the trial of the accused.
15. In addition to the above, High Court judge can‟t confirm death sentence without
appreciating the facts and evidence produced by both sides. 18 . It is well settled legal
principle that in a reference under S.366 for confirming death sentence, the High Court has
to consider the evidence afresh 19 , examine all relevant & material circumstances 20 and
arrive at its independent finding21 with regard to the guilt of the accused. But in present
case, High Court confirmed the death sentence ignoring the illegality involved in the trial.
16. Hence, confirmation of the death sentence by High Court was patently illegal.

III. THERE HAVE BEEN VIOLATIONS OF CONSTITUTIONAL PROVISION IN THE PRESENT

CASE.
17. It is humbly submitted before this Hon`ble court that there has been grave violation of Mr.
X‟s fundamental rights under Articles 14, 21 & 22 by High Court, Executive and State
Government. President of Indica has rejected Mr. X mercy petition without taking relevant
materials into consideration. High Court has confirmed his death sentence by overlooking the
position of law related to Section 303 of IPC, 1860. State government was also not able to
fix a date of execution leading to constant torture & fear to the accused.
A. Mercy petition rejected by the President of Indica is not as per Article 72 of
Constitution of Indica and settled position of Law.
18. In the present case President of Indica has not taken into consideration that the trial of Mr. X
was vitiated by illegality which is a relevant consideration to be taken into account before
rejecting mercy petition. It is a settled position of Law that if the president has kept relevant
materials out of consideration while passing the order on mercy petition it can be judicially
reviewed.22
19. In the Landmark Judgment of Shatrughan Chauhan v. Union of India,23Apex Court held that
the power of the President per se under Article 72 of Constitution of India is beyond judicial
scrutiny but the materials that were relied upon by him to arrive at the conclusion can be
reviewed.

17
Mithu v. State of Punjab Etc. 1983; See also: Shatrughan Chauhan & Anr. v. Union Of India, (2014) 3 SCC 1
18
Subbaiah Ambalam v. State of Tamil Nadu, AIR 1977 SC 2046.
19
Id.
20
Stae of U.P. v. Iftikar khan, AIR 1973 SC 863; See also: Masathi v. State of U.P., AIR 1965 SC 202.
21
Rama Shankar v. State of W.B., AIR 1962 SC 1239.
22
Epuru Sudhakar v. Govt. of A.P., AIR 2006 SC 3385.
23
(2014) 3 SCC 1.

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20. Thus, the judicial trend over the year establishes that the power of the President under Article
72 of Constitution of India is to pass the order on mercy petition after thorough application of
mind taking into account all the relevant considerations which may or may not benefit the
petitioner. Since, the above positions has not been followed by the President in the present
case the order passed by the President is against the settled position of Law. Hence Mr. X
should be given benefit of the same.
B. Execution of death sentence of Mr. X will violate Article 14 enshrined under
Constitution of Indica.
21. It is humbly submitted before this Hon‟ble court that in the present case confirmation of
death sentence of Mr. X by the High Court of Purva Pradesh resulted in violation of
fundamental right of Mr. X under Article 14 of Constitution of Indica.
22. It is imperative to mention here that Section 303 of IPC has already been held
unconstitutional by a five judge constitutional bench of Supreme Court of India on the ground
of being violative of Articles 14 of the Constitution.24 The above position was affirmed in the
recent case of Sher Singh v. State of Haryana.25
23. In the present case, High Court forbid itself from applying its discretion on the basis of
section 303 of IPC and confirmed death sentence awarded to Mr. X. High Court gave greater
consideration to the fact that Mr. X is already under a sentence of life imprisonment for a
previous matter and hence, he should be given death penalty.
24. Such discrimination to Mr. X is against the principle of equality because this classification
under section 303 is based upon irrelevant considerations and bears no nexus with the object
of the statute, namely, the imposition of a mandatory sentence of death.26
C. Execution of Mr. X would lead to violation of Article 21 & 22.
25. It is a settled position of law that excessive delay in carrying out the death sentence is grave
violation of the Article 21.27 In the present case there was inordinate delay28 as well as a
constant torture of execution in Mr. X`s mind, which is clearly a grave violation of his right
to life.29
26. Under Article 21 life includes the right to live with human dignity, which is more than just
animal existence and free from exploitation.30 The term life in the present case has to be

24
Mithu v. State Of Punjab, AIR 1983 SC 473
25
2015 (1) ACR 326 (SC)
26
Supra note 12.
27
Supra note 18
28
Annexure as Table 1
29
Sher Singh v. State of Punjab, (1983) 2 SCC 344.
30
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802

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construed in a manner so as to include the hardships, pain and terror faced by Mr. X due to
pending execution affecting his basic human dignity.31
27. In addition to the aforementioned submissions, it is imperative to note that there was clear
violation of Article 21 because Mr. X was under constant mental torture32 since his mercy
petition was rejected in the year 1996 and was well informed that he can be executed any day
now.33 Sessions Court was also negligent on its part because it was the duty of the Sessions
Court to issue death warrant just after the confirmation of death sentence by the high court 34
but this was not done which led to further delay in the execution process. Furthermore, it was
the duty of the State Government after the rejection of mercy petition in 1996 to fix the date
of execution35 but State Government failed to fix the date which caused much delay.
28. The above instances caused inordinate delays which have resulted into prolonged period of
imprisonment where Mr. X is suffering from anguish, rising levels of agony and stress arising
out of living in the ever present shadow of the noose. Prolonged detention to await the
execution of death sentence has dehumanising effect on accused and also, it is unjust, unfair
and unreasonable practice.36
29. It is also a settled position of law that, when the law enjoins appointing a counsel to defend
an accused, it means an effective counsel who can safeguard the interest of the accused in
best possible manner.37 Legal aid should serve its purpose in real sense 38 as it is given in
fulfilment of constitutional obligation and not as charity39.
30. An excessive delay in carrying out the death sentence is an essential mitigating factor in a
plea for commutation of death sentence40, therefore, the above submissions clearly establish
that Mr. X cannot be executed as his trial was vitiated by illegality and his execution would
violate Article 14, 21 & 22.

31
Furman v. State of Georgia, 408 US 238.
32
Ediga Anamma v. State of A.P., 1974 AIR 799.
33
As per Rule 2 of “Procedure regarding petitions for mercy in death sentence” (framed by Ministry of Home
Affairs, Govt. of Indica)
34
Section 413 of Cr.P.C, 1973.
35
Chapter XI Clause 11.44 of Central Prison Manual.
36
State of U.P. v. Lalla Singh, AIR 1978 SC 368.
37
Ram Awadh v. State of UP, MANU/UP/1029/1998; See also: Sunil Batra v. Delhi Administration, (1979) 1
SCR 392, McMillann v. Richardson, 397 US 759, 771 n. 14 (1970).
38
Ranchoddas Wasava v. State of Gujarat, AIR 1974 SC 1143
39
Sagri v. State of M.P., 1991 (1) Crimes 580 (MP).
40
Supra note 21; See also: Mahendra Nath Das v. Union of India, (2013) 6 SCC 253, State of U.P. v. Sahai,
1981 CriLJ 1034, Sadhu Singh v. State of U.P., AIR 1978 SC 1506.

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PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, authorities cited &arguments advanced,

Hon`blePrincipalDistrictand Sessions Court may be pleased to adjudge & declare that:

1. Petition is allowed.

2. Trial of Mr. X is vitiated by illegality.

3. There is violation of Article 14, 21 and 22 of Constitution of Indica.

4. Delay in the execution of Mr. X is unexplained and unreasonable.

5. Mr. X will not be executed.

AND

Pass any other order that it may deem fit in the interest of justice, equity & good conscience.

All of which is most humbly prayed.

On behalf of

STATE OF KARNATAKA

Counsels for the State

Sd/

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ANNEXURE

Table No.1

Total period of Jail till date 1990 to 02.01.2013 23 Years

Period under sentence of 1996 to 02.01.2013 17 Years

death

Total delay in deciding 1994 to 1996 2 Years

mercy
Petitions by the President

Delay by Court in issuing of 1996 to 01.01.2013 17 Years

Black warrant by Court

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