Memorial Petitioner-Akshat Yadav

Name: Akshat Yadav
(162003)
PRESTIGE INSTITUTE OF MANAGEMENT & RESEARCH,
DEPARTMENT OF LAW, INDORE
MOOT COURT, 2021
IN THE HON’BLE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CRL.) NO. OF 2021
NITIN DIXIT...................................................................................................PETITIONER
Versus
UNION OF INDIA..........................................................................................RESPONDENT
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
WITH
SPECIAL LEAVE PETITION (CRL.) NO. OF 2021
ABHISHEK......................................................................................................PETITIONER
Versus
UNION OF INDIA........................................................................................RESPONDENT
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
MEMORIAL ON BEHALF OF THE PETITIONER

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PIMR Department of Law, Indore
TABLE OF CONTENTS
LIST OF ABBREVIATIONS................................................................................................4
INDEX OF AUTHORITIES.................................................................................................6
STATEMENT OF JURISDICTION....................................................................................9
STATEMENT OF FACTS...................................................................................................10
ISSUES RAISED....................................................................................................................13
SUMMARY OF ARGUMENTS...........................................................................................14
ARGUMENTS ADVANCED................................................................................................18
1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS
COURT IS MAINTAINABLE OR NOT......................................................................18
1.1 JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED
WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE
ARISES..................................................................................................................18
1.1.1 THAT THE MATTER INVOLVES QUESTION OF LAW OF
GENERAL PUBLIC IMPORTANCE AND HENCE, ENTITLED TO
BE MAINTAINABLE........................................................................19
1.1.2 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW
AND HENCE ENTITLED TO BE MAINTAINABLE.....................20
2. WHETHER THE SESSIONS & HIGH COURT WERE JUSTIFIED IN
REJECTING THE BONE TEST....................................................................................21
2.1 THE BONE TEST IS A RELIABLE SOURCE...................................................23
2.2 THE LOWER COURT IS NOT JUSTIFIED FOR DENYING THE
OSSIFICATION TEST AS A RIGHT TO ABHISHEK......................................23
Page | 2 MEMORIAL ON BEHALF OF THE PETITIONER

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3. WHETHER THE ACT OF NITIN WAS IN FURTHERANCE OF COMMON
INTENTION DEFINED UNDER S.34 OF IPC............................................................25
3.1 ABSENCE OF COMMON INTENTION...................................................................27
3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION...............28
PRAYER................................................................................................................................29

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LIST OF ABBREVIATIONS
AIR All India Reporter
All Allahabad High Court
Bom. LR Bombay Law Reporter
Cal Calcutta High Court
CBI Central Bureau of Investigation
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del Delhi High Court
Ed. Edition
JJA Juvenile Justice Act
Guj Gujarat High Court
HC High Court
IPC Indian Penal Code
IC Indian Cases
ILR Indian Law Reports
ITR Income Tax Reports
JT Judgment Today
Mad Madras High Court
NCRB National Crime Records Bureau
Ori Orissa High Court
P&H Punjab and Haryana High Court
Pat Patna High Court
Raj Rajasthan High Court

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SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
U.O.I Union of India
V. Versus

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INDEX OF AUTHORITIES
CASES
 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.

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 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. Mayank, (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., 11th
Edn. 2014.
 Basu’s Indian Penal Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn.
2011.
 Criminal Manual, Universal Law Publishing Company, 2015.
 Maharukh Adenwalla, Child Protection and Juvenile Justice System, ChildLine India
Foundation, Mumbai, 10th Edn. 2008.

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 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
in India, 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.
LEXICONS
 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 University
Press.
LEGAL DATABASES
 SCC Online
 Judis
 Indian Kanoon

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STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of India under Article 136 of
the Constitution of India. The leave has been granted by this Hon’ble court in both matters
and both the matters are to be heard by this Hon’ble Supreme Court together. The article 136
of Constitution of India 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 Or
Order In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The Territory
Of India.
(2) Nothing In Clause (1) Shall Apply To Any Judgment, Determination, Sentence Or Order
Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law Relating To
The Armed Forces.”

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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:
BACKGROUND
1. Abhishek is a poor boy who used to live in a slum in the outskirts of the city of
Indore in the Republic of India. He studied in a government funded school named,
Best High School up to Sixth Standard but then he dropped out of school and since
then, he has been in the employment of Mr. S. Verma. Abhishek lives in the quarter
provided by Mr. Verma. It has been 6 years since his employment.
2. Mr. S. Verma had two children, a boy named Umang, aged 18 years and a girl named
Poorva, aged 16 years. Nitin Dixit, aged 16 years and 6 months is the Son of Mr.
Dixit. Nitin is the neighbor of Mr. Verma.
3. Nitin and Umang had hatred for each other since childhood. In light of this both had a
heated quarrel. One day Nitin was playing soccer in the park and Umang & Poorva
were jogging at the same time. While playing soccer, the football got hit over
Poorva’s head and she sustained some minor injuries. As a result, Umang started
verbally abusing Nitin and this led to a heated quarrel between the two where Umang
gave a blow to Nitin. Soon, the quarrel was resolved by one of the neighbors.
4. Both, Umang and Poorva, used to insult Abhishek in a condescending manner.
Abhishek was also abused and tormented in public. One day, Nitin saw this and
talked to Abhishek. Both started sharing the hatred for Umang and Poorva.

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DEATH OF UMANG AND POORVA
5. Abhishek took a leave for 3 days on 7th March, 2015 for going to his village. He
had the permission of Mr. Verma for the leave. On 8 th March, 2015, Mrs. Verma had
planned to go to a painting exhibition with her family but due to Mr. Verma’s work
she decided to go with her children. Abhishek had prior knowledge of the same.
6. Mrs. Verma, with her children, reached the exhibition at 6:30 P.M. on 8th March, 2015.
Around 8:30 P.M. Poorva was taken away by four persons. Umang sensed this and he
started searching for his sister. While searching, Umang went to the basement and
saw four persons. Two persons were holding her sister and the other two were trying
to outrage her modesty.
7. Umang tried to save his sister, however, he was suffered one blow on his head and
several blows on his abdomen. As a result, he fell unconscious. His sister Poorva tried
to scream, but her mouth was shut and in sudden haste she was strangulated. She fell
dead and all the four persons fled away. The bodies of the deceased were discovered
around 9:30 P.M by the guard who came down to the basement to switch off the
lights.
JUDICAL PROCEEDINGS
8. Nitin was arrested on 10th March, 2015 on the information of Ram Manohar who saw
him sneaking out the basement on the night of 8th March, 2015. On the 12th March,
2015, Abhishek was arrested along with Mayank and Ranveer, who were Nitin’s
friends.
9. On 15th May, 2015, the case was admitted to the Juvenile Board (hereinafter as JB) as
all the boys were alleged to be below the age of 18 years. The case of Nitin and
Abhishek was committed to the Sessions Court as the JB found them well aware of
the
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circumstances and consequences of their acts. Both of them were tried u/s
302,304,326,354 read with S. 34 of the India Penal Code (hereinafter as IPC).
10. On 12th June, 2015 Nitin’s case was remanded back to the JB. However, Abhishek’s
submissions were rejected due to lack of evidence of age as his Birth Certificate
provided by the Municipality could not be discovered. Abhishek’s assertion to carry
out a Bone Test or any other allied test for the determination of his age was also
rejected by the court due to inconclusiveness of these kinds of tests.
11. On 28th July, 2015, Abhishek was found guilty u/s 304, 326, 354 read with S.34 of
IPC, 1860. He was sentenced to imprisonment of 3 years. Nitin was found guilty
u/s 304, 326, 354 read with S. 34 of IPC, 1860 on 4 th August, 2015 and he was sent to
a special home for a maximum period of 3 years by the JB. Nitin appealed to the
Session court against the judgment and order passed by the Juvenile Board.
However, the appeal was dismissed as the case had been proved beyond reasonable
doubt before the Juvenile Board.
12. Both Nitin and Abhishek appealed to the High Court. Abhishek filed an appeal
against the order of conviction since the Court of Session had no jurisdiction to try the
case as he was a minor. He also raised a question regarding the justification of the
court in rejecting the bone test. Whereas, Nitin filed an appeal for the quashing of the
order of conviction of the Court. Both the appeals were rejected by the High Court as
both were capax of committing the crime and both had common consensus.
Abhishek was sentenced for imprisonment of 10 years.
13. On 11th January, 2016, both the accused have petitioned before this Hon’ble Apex
Court against the order of High Court and the Sessions Court. The matter is admitted
and listed for hearing.

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ISSUES RAISED
COURT IS MAINTAINABLE OR NOT.
REJECTING THE BONE TEST.
3. WHETHER THE ACT OF NITIN WAS IN FURTHERANCE OF
COMMON INTENTION DEFINED UNDER S.34 OF IPC.

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SUMMARY OF ARGUMENTS
It is humbly submitted before this Hon’ble Court that the Special Leave Petition against
the judgment of the Hon’ble High Court (hereinafter as HC) is maintainable under Article
136 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 of
general public importance arises and even question of fact can also be a subject matter of
judicial review under Art.136.
The jurisdiction conferred under Art. 136 on the SC is a corrective one and not a
restrictive one. A duty is enjoined upon the SC to exercise its power by setting right the
illegality in the judgments is well-settled that illegality must not be allowed to be
perpetrated and failure by the SC to interfere with the same would amount to allowing the
illegality. It has been held by this Hon’ble Court that when a question of law of general
public importance arises, or a decision shocks the conscience of the court, its jurisdiction
can always be invoked. Article 136 is the residuary power of SC to do justice where the
court is satisfied that there is injustice to be perpetuated.
In the present case, the question of law involved in appeal is of recurring nature which
has been raised in plethora of cases. Hence, it is humbly submitted before this Hon’ble
Supreme Court of India that the matter involves substantial question of law and hence
entitled to be maintainable.

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REJECTING THE BONE TEST.
It is submitted before this Honorable Court that the bone age of a child indicates his/her
level of biological and structural maturity. In the present case, the plea to conduct a bone
test or any other allied test for the determination of the age of Abhishek was rejected by
the Sessions & High Court. The reason for such decision to reject the above mentioned
tests was due to the inconclusiveness of these kinds of tests.
This is an insufficient ground for rejecting to conduct the Age Determination Test. It is a
well-accepted fact in the precedents of our Indian Judiciary that the last resort for age
determination of a juvenile is the Bone Test i.e. Ossification Test. The "Age
determination inquiry" conducted under Section-94(2) of the JJA, 2015 enables the court
to seek evidence and in that process the court can obtain the matriculation or equivalent
certificates, if available. The petitioner asserts that Abhishek had time and again
submitted before various lower courts the petition for determination of his age, and time
and again it was denied to him.
INTENTION DEFINED UNDER S.34 OF THE IPC.
It is submitted before this honorable Court that in the present case there has been a gross
failure of justice on part of the lower courts. There has been a grave error in convicting
Nitin solely on the basis of his mere presence at the exhibition. The Section 34 of IPC is
intended to meet cases in which it may be difficult to distinguish between the acts of
the individual members of a party or to prove what part was exactly taken by each of
them in furtherance of the common intention of all. To constitute common intention it is

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necessary that the intention of each one of the accused was known to the rest of them and
was shared by them. The test to decide if the intention of one of them is common is to see
whether the intention of one was known to the other and was shared by that other.
It is submitted that the co-accused Nitin is being dragged into the picture for no justifiable
cause and for no fault, participation or involvement of his in the alleged act in question. It
is submitted that neither the accused had any intention with others nor did he act in
concert with others to commit such act. There was no evidence that prior to the incident
there was any common intention shared by both the accused. The said intention did not
develop at the time of the incident as well.

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ARGUMENTS ADVACNED
It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble
High Court is maintainable under Article 136 of the Constitution of India. It is contended
that the jurisdiction of Supreme Court under Article 136 can always be invoked when a
question of law of general public importance arises and even question of fact can also be
a subject matter of judicial review under Art.136.
1.1 JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED
WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE
ARISES.
The jurisdiction conferred under Art. 136 on the SC are corrective one and not a
restrictive one1. A duty is enjoined upon the SC to exercise its power by setting right
the illegality in the judgments is well-settled that illegality must not be allowed to be
perpetrated and failure by the SC to interfere with the same would amount to allowing
the illegality to be perpetuated2.It has been held in plethora of cases that when the
question of law of general public importance arises, the jurisdiction of SC can be
invoked by filing special leave petition. In the present case, the issue involves matter
of General Public Importance and hence, entitled to be maintainable.
1
Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359.
2
Pawan Kumar v. State of Haryana, (2003)11 SCC 241.

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1.1.1 THE MATTER INVOLVES QUESTION OF LAW OF GENERAL
PUBLIC IMPORTANCE AND HENCE, ENTITLED TO BE
MAINTAINABLE.
It has been held by this Hon’ble Court that when a question of law of general
public importance arises, or a decision shocks the conscience of the court, its
jurisdiction can always be invoked. Article 136 is the residuary power of SC to
do justice where the court is satisfied that there is injustice 3. The principle is
that this court would never do injustice nor allow injustice being perpetrated
for the sake of upholding technicalities4.In any case, special leave would be
granted from a second appellant decision only where the judgment raises issue
of law of general public importance5
In the case at hand, requisite and proper inquiries were not conducted
regarding the age of the Abhishek and creditworthiness of the witness and the
judgement was passed without conducting proper inquiry and collection of
evidences. Also the juveniles in conflict with law have been punished
arbitrarily. This has disturbed the public. Hence, the matter concerned is of
great public importance and the same was reiterated by the High court.
Hence, considering all the above authorities, it is humbly submitted before this
court that the matters involves question of law of general public importance
and therefore, the appeal is maintainable under article 136 of the Constitution
of India.
3
C.C.E v Standard Motor Products, (1989) AIR 1298.
4
Janshed Hormusji Wadia v Board of Trustees, Port of Mumbai (2004)3 SCC 214.
5
Balakrishna v. Rmaswami, (1965) AIR 195.

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1.1.2 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW
AND HENCE ENTITLED TO BE MAINTAINABLE
Where findings are entered without considering relevant materials and without
following proper legal procedure, the interference of the Supreme Court is
called for6. The expression "substantial question of law" is not defined in any
legislation. Nevertheless, it has acquired a definite connotation through
various judicial pronouncements. A Constitution Bench of the Apex Court,
while explaining the import of the said expression, observed that:
“The proper test for determining whether a question of law raised in the case
is substantial would, in our opinion, be whether it is of general public
importance or whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council or by the Federal Court or
is not free from difficulty or calls for discussion of alternative views7.”
In the present case, the question of law involved in appeal is of recurring nature
which has been raised in plethora of cases. Hence, it is humbly submitted
before this Hon’ble Supreme Court of India that the matter involves substantial
question of law and hence entitled to be maintainable.
The Supreme Court is not precluded from going into the question of facts under
article 136, if it considers it necessary to do so 8. The Article 136 uses the
wording ‘in any cause or matter’. This gives widest power to this court to deal
6
Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
7
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314.
8
Kathi Raning Rawat v. The State of Saurashtra (1952) AIR 991.

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with any cause or matter9. It is, plain that when the Supreme Court reaches the
conclusion that a person has been dealt with arbitrarily or that a court or
tribunal has not given a fair deal to a litigant, then no technical hurdles of any
kind like the finality of finding of facts, or otherwise can stand in the way of
the exercise of this power10
It is submitted that, the present facts in issue satisfy all of the above mentioned
criteria. The case involves the matter of general public importance and it
directly and substantially affects the rights of the parties as the order is
erroneous and prejudicial to the interest of the petitioners. Also, in the light of
the facts that huge amount of cases aroused under same facts and
circumstances, it is submitted that the question is indeed an open question.
9
Pritam Singh v. The State, (1950) AIR 169.
10
Sripur Paper Mills v. Commissioner of Wealth Tax (1970) AIR1520.

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REJECTING THE BONE TEST
It is submitted before this Hon’ble Court that the bone age of a child indicates his/her level
of biological and structural maturity .By the age of 18 years, bone age cannot be computed
from hand & wrist radiographs, therefore the medial end of the clavicle is used for bone
age calculation in individuals aged 18—22 years. In the present case, the plea to conduct a
bone test or any other allied test for the determination of the age of Abhishek was rejected
by the Sessions & High Court. The reason for such decision to reject the above mentioned
tests was due to the inconclusiveness of these kinds of tests11. This is an insufficient
ground for rejecting to conduct the Age Determination Test.
The Juvenile Justice (Care and Protection of Children) Act, 2015states that,
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Committee or the Board, as the
case may be, shall undertake the process of age determination, by seeking evidence by
obtaining —
(i) The date of birth certificate from the school, or the matriculation or equivalent
certificate from the concerned examination Board, if available; and in the absence
thereof;
(ii) The birth certificate given by a corporation or a municipal authority or a
panchayat;
11
Fact Sheet, ¶11, Line 7.

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(iii) And only in the absence of (i) and (ii) above, age shall be determined by an
ossification test or any other latest medical age determination test conducted on the
orders of the Committee or the Board12”
It is a well-accepted fact in the precedents of our Indian Judiciary that the last resort for
age determination of a juvenile is the Bone Test i.e. Ossification Test. The "Age
determination inquiry" conducted under Section-94(2) of the JJA, 2015 enables the court
to seek evidence and in that process the court can obtain the matriculation or equivalent
certificates, if available. If there is an absence of both, matriculation or equivalent
certificate and the date of birth certificate from the school first attended, the court needs to
obtain the birth certificate given by a corporation or a municipal authority or a panchayat
(not an affidavit but certificates or documents). The question of obtaining medical opinion
from a duly constituted Medical Board arises only if the abovementioned documents are
unavailable. In case the exact assessment of the age cannot be done, then the court, for
reasons to be recorded, may, if considered necessary, give the benefit to the child or
juvenile by considering his or her age on lower side within the margin of two years.
There have been cases where the criminal justice system has not recognized an accused to
be a juvenile, and the claim of juvenility is raised for the first time before the Supreme
Court. In the case of Gopinath Gosh v. State of West Bengal13 the question to determine the
age of the accused was raised for the first time in the case before the Supreme Court. The
Apex Court instructed the Magistrate to conduct an inquiry about age when it appeared that
the accused was under 21 years of age at the time when he committed the offence. As a
result, the accused was found to be a juvenile at the time of commission of the offence. The
Apex court observed that, “If necessary, the Magistrate may refer the accused to the
12
Section 94, Juvenile Justice (Care and Protection) Act. 2015.
13
AIR 1984 SC 237.

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Medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy
evidence about age14.”
2.1 THE BONE TEST IS A RELIABLE SOURCE
The petitioner asserts that Abhishek had time and again submitted before various
lower courts the petition for determination of his age, and time and again it was
denied to him. As per experts that there can be error of about two years in the age
determined by the ossification test, but it is still more reliable than ascertaining the
age on mere appearance basis. In case of doctor’s opinion regarding age of
petitioners, benefit of plus/minus two years to be given15.
On request of the petitioner the Magistrate had directed the Superintendent of sub-Jail
to send ossification report. On the basis petitioner’s age was held not below 18 years.
Courts below had wrongly relied on the report without giving margin of 2-3 years. If
two views were possible regarding age of petitioner, one favorable to him should be
accepted. It was obligatory on part of Magistrate to hold enquiry and determine the
age after providing opportunity of hearing to the parties16.
2.2 THE LOWER COURT IS NOT JUSTIFIED FOR DENYING THE
OSSIFICATION TEST AS A RIGHT TO SHAYAMA
The petitioner asserts that, the order passed by the Session Court on the ground of
‘inconclusiveness of these kinds of tests17’ is an insufficient ground for rejecting to
14
Gopinath Ghosh v. State of Bengal, AIR 1984 SC 237.
15
Shehzad v. State (NCT of Delhi), 2006 (3) JCC 1580.
16
Ummeed Singh v. State of M.P., 2007 (57) AIC 849 (MP) (Gwalior Bench).
17
Fact Sheet, ¶11, Line 7.

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conduct age ascertainment test. The petitioner asserts that, the accused i.e., Nitin had
time and again submitted before various lower courts the petition for determination of
his age, and time and again it was denied to him.
Ossification test is performed by radiological examination of several main joints, and
the opinion of age is based on the extent of fusion of the bones18.The foundation of
the Indian criminal justice system is that any doubt or ambiguity should support the
accused. Hence, in borderline cases the accused is to be treated as a juvenile.
Moreover, the Supreme Court has held that the approach of the courts should not be
hyper-technical whilst determining juvenility19.
The judicial trend has more been diverted from Surinder Singh’s Case20, when the
Supreme Court rejected a plea of juvenility that was for the first time raised before
Apex Court. Legislature intervened by amending JJA 2000 to assure juveniles the
envisaged treatment. Section 7-A was inserted to clarify the courts should entertain at
any stage, even after final disposal of the case, a plea that an accused was below 18
years of age at the time of occurrence of the crime.
It is most respectfully submitted to the Court that, where the declaration as to whether
the accused was juvenile or not has not been given by any competent Court, the
matter was remanded to the concerned Court for determining the age of the petitioner
and for passing order on the point of juvenile and in connection with the pending case
against the petitioner21.
18
Jaya Mala vs. Home Secretary, Govt. Of J&K, AIR 1982 SC 1297.
19
Bhoop Ram vs. State of U.P. AIR 1989 SC 1329.
20
Surinder Singh vs. State of U.P., AIR 2003 SC3811.
21
Hemal Jain vs. State of Jharkhand, 2004 Cr. LJ. 3830 (Cal).

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INTENTION DEFINED UNDER S.34 OF IPC.
It is submitted before this honorable Court that in the present case there has been a gross
failure of justice on part of the lower courts. There has been a grave error in convicting
Nitin solely on the basis of his mere presence at the exhibition. The Section 34 of the
Indian Penal Code, 1860 states;
“When a criminal act is done by several persons in furtherance of the common intention
of all, each of such persons is liable for that act in the same manner as if it were done by
him alone22.”
This section is intended to meet cases in which it may be difficult to distinguish between
the acts of the individual members of a party or to prove what part was exactly taken by
each of them in furtherance of the common intention of all. 23The reason why all are
deemed guilty in such cases is that the presence of accomplices gives encouragement,
support and protection to the person actually committing an act.
The essential ingredients of Sec. 34 of IPC as stated and restated by law Courts in
plethora of cases are:
(i) Common intention to commit a crime, and
(ii) Participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability.24
This provision is only a rule of evidence and does not create a substantive offence. It lays
down the principle of joint liability. To charge a person under this section, it must be
22
Section 34, India Penal Code.
23
Mepa Dana, (1959) Bom LR 269.
24
Shaik China Brahmam v. State of A.P., AIR 2008 SC 610.

MOOT COURT, 2021
shown that he shared a common intention with another person or persons to commit a
crime and subsequently the crime was perpetrated 25.The Apex Court held in a case26, that
in the case of Sec. 34 it is well established that a common intention presupposes prior
concert. It requires a pre-arranged plan because before a man can be vicariously convicted
for the criminal act of another, the act must have been done in furtherance of the common
intention of them all.
To constitute common intention it is necessary that the intention of each one of the
accused was known to the rest of them and was shared by them. The test to decide if the
intention of one of them is common is to see whether the intention of one was known to
the other and was shared by that other. In drawing the inference the true rule of law which
is to be applied is the rule which requires that guilt is not to be inferred unless that is the
only inference which follows from the circumstances of the case and no other innocuous
inference can be drawn.27
In a case where the accused persons on going together to a village attacked a victim and
caused his death and after having achieved the object tried to escape together, they act in
close concert and harbour the common intention of beating the deceased. To such a case
Section 34 does apply.28 ‘Common intention’ is not the same or similar intention. It
follows that there must be a prior meeting of the minds. Several persons can
simultaneously attack a man. Each can have the same intention, that is, intention to kill.
Each can individually cause a separate fatal blow. Yet, there may not exist a common
25
Garib Singh v. State of Punjab, 1972 Cr LJ 1286.
26
Pandurang v. State of Hyderabad, AIR 1955 SC 216.
27
Oswal Danji v. State, (1960) 1 Guj LR 145.
28
Bherusingh v. State, 1956 Madh. BLJ 905.

MOOT COURT, 2021
intention if there was no prior meeting of the mind. In such a case, each would be
individually liable for the injuries, he causes.29
3.1 ABSENCE OF COMMON INTENTION
It is submitted that the co-accused Nitin is being dragged into the picture for no
justifiable cause and for no fault, participation or involvement of his in the alleged
act in question. It is submitted that neither the accused had any intention with
others nor did he act in concert with others to commit such act.
‘Common intention’ implies a pre- concerted plan and acting in concert pursuant
to the plan. Common intention comes into being prior to the commission of the act
in point of time, which need not be a long gap.30Though establishing common
intention is difficult for the prosecution, yet, however difficult it may be, the
prosecution has to establish by evidence, whether direct or circumstantial that
there was a plan or meeting of mind of all the assailants to commit the offence, be
it pre-arranged or the spur of the moment, but it must necessarily be before the
commission of the crime.
There was no evidence that prior to the incident there was any common intention
shared by both the accused. The said intention did not develop at the time of the
incident as well and therefore, it was held that Sec. 34 of the Indian Penal Code
cannot be resorted to hold accused guilty of any crime31.
29
Nandu & Dhaneshwar Naik v. The State, 1976 CriLJ 250.
30
Ramchander & Ors. v. The State of Rajasthan, 1970 CrLJ 653.
31
Veer Singh v. State of U.P., 2010 (1) A.C.R. 294 (All.).

MOOT COURT, 2021
Therefore, it is humbly submitted that there was no common intention among
Nitin and the others accused. Hence, in absence of common intention he must not
be held liable under S.34 of the IPC.
3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION
In view of the phraseology of S. 34 existence of common intention is not enough,
the criminal act impugned to attract S.34 must be committed in furtherance of
common intention. The section operates only when it is found that the criminal act
done by an individual is in furtherance of the common intention and not without
it32. The words ‘in furtherance of the common intention of all’ in S.34, IPC do not
require that in order that the section may apply, all participants in the joint acts
must either have common intention of committing the same offence or the
common intention of producing the same result by their joint act be performed.
It is true that no concrete evidence is required to prove a common intention
between two people to commit an act. It is however key here to understand that
such evidence must be such that it does not leave any room for doubt against such
an intention.33 Moreover, to sustain a charge under s. 34, active participation in
the commission of the criminal act is required which is clearly absent in the
present case.34
The petitioner submits that since the aforementioned two essential conditions have
not been met with in the present. It is further submitted that the accused must not
be held liable under S.34 of IPC.
32
State of Bihar v. Lala Mahto A.I.R 1955 pat. 161.
33
Dharam Pal v. State of Haryana, AIR 1978 SC 1492.
34
William Slaney v. State of Madhya Pradesh, AIR 1956 SC 116.

MOOT COURT, 2021
PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:
1. Set aside the conviction of Nitin and free him from all the charges framed upon
him.
2. Hold that the case of Abhishek be remanded back to the Juvenile Justice Board for
his trial as a minor.
3. Hold that the Ossification Test of Abhishek be conducted for the determination of
his age.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Petitioner as in duty bound, shall humbly pray.
COUNSELS ON BEHALF OF THE PETITIONER

Memorial Petitioner-Akshat Yadav

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Memorial Petitioner-Akshat Yadav

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Name: Akshat Yadav

PRESTIGE INSTITUTE OF MANAGEMENT & RESEARCH,

DEPARTMENT OF LAW, INDORE

MOOT COURT, 2021

IN THE HON’BLE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO. OF 2021

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

SPECIAL LEAVE PETITION (CRL.) NO. OF 2021

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

MEMORIAL ON BEHALF OF THE PETITIONER

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT......................................................................18

1.1 JURISDICTION OF SC UNDER ARTICLE 136 CAN ALWAYS BE INVOKED

WHEN A QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE

1.1.1 THAT THE MATTER INVOLVES QUESTION OF LAW OF

GENERAL PUBLIC IMPORTANCE AND HENCE, ENTITLED TO

1.1.2 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW

AND HENCE ENTITLED TO BE MAINTAINABLE.....................20

2. WHETHER THE SESSIONS & HIGH COURT WERE JUSTIFIED IN

REJECTING THE BONE TEST....................................................................................21

2.1 THE BONE TEST IS A RELIABLE SOURCE...................................................23

2.2 THE LOWER COURT IS NOT JUSTIFIED FOR DENYING THE

OSSIFICATION TEST AS A RIGHT TO ABHISHEK......................................23

Page | 2 MEMORIAL ON BEHALF OF THE PETITIONER

INTENTION DEFINED UNDER S.34 OF IPC............................................................25

3.1 ABSENCE OF COMMON INTENTION...................................................................27

3.2 THE ACT WAS NOT IN FURTHERANCE OF COMMON INTENTION...............28

Page | 3 MEMORIAL ON BEHALF OF THE PETITIONER

AIR All India Reporter

All Allahabad High Court

Bom. LR Bombay Law Reporter

Cal Calcutta High Court

CBI Central Bureau of Investigation

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

JJA Juvenile Justice Act

Guj Gujarat High Court

IPC Indian Penal Code

ILR Indian Law Reports

ITR Income Tax Reports

Mad Madras High Court

NCRB National Crime Records Bureau

Ori Orissa High Court

P&H Punjab and Haryana High Court

Pat Patna High Court

Raj Rajasthan High Court

Page | 4 MEMORIAL ON BEHALF OF THE PETITIONER

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

U.O.I Union of India

Page | 5 MEMORIAL ON BEHALF OF THE PETITIONER

 Pawan Kumar v. State of Haryana, (2003)11 SCC 241.

 C.C.E v Standard Motor Products, (1989) AIR 1298.

 Balakrishna v. Rmaswami, (1965) AIR 195.

Ltd., (1962) AIR 1314.