Moot Court Respondent.docx

NALANDA LAW COLLEGE MOOT COURT - 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.

OF 2019

MR. A Age: XX years, R/o village Khairlanji, Tal: Warasione, District: Nagpur (At present convicted to death penalty)

MR. B Age: XX years, R/o village Khairlanji,

APPELLANT

Tal: Warasione, District: Nagpur (At present convicted to death penalty)

MR. C Age: XX years, R/o village Khairlanji Tal: Warasione, District: Nagpur (At present convicted to death penalty)

VERSUS

THE STATE OF MAHARASHTRA

RESPONDENT

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NALANDA LAW COLLEGE MOOT COURT - 2019 TABLE OF CONTENTS

Table of contents………………………………………………………………………….

1

List of Abbreviations……………………………………………………………………...

3

Index of Authorities………………………………………………………………………

4

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

7

Statement of facts…………………………………………………………………………

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Statement of Issues………………………………………………………………………..

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Argument…………………………………………………………………………………….10

Prayer of Respondent ……………………………………………………………….........

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NALANDA LAW COLLEGE MOOT COURT - 2019 LIST OF ABBREVIATIONS

¶

Paragraph

&

And

AIR

All India Reporter

MH

Maharashtra

ANR

Another

Bom

Bombay

CCR

Current Criminal Reports

Co

Company

CrPC

Criminal Procedure Code

Crl.A.

Criminal Appeal

Ed

Edition

I.L.R

Indian Law Reporter

Govt

Government

Hon’ble

Honorable

FIR

First Investigation Report

Id

Ibid

Mr.

Mister

Ltd

Limited

L.J

Law Journal

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NALANDA LAW COLLEGE MOOT COURT - 2019 INDEX OF AUTHORITIES STATUTORY COMPILATIONS :-

CONSTITUTIONS:1- The Constitution of India,1950.

ACTS, CODES AND STATUTES :1

Indian Penal Code 1860

2 Evidence Act 3 Criminal Procedure Code

BOOKS:-

BOOKS REFERRED 1.

C.K.Thakkar ‘Takwani’, Code of Criminal Procedure (3rd Ed., Lexis NexisButterworthsWadhwa, Nagpur, 2012).

2.

Chief Justice M. Monir, Law of Evidence (14th edition, Universal Law Publishing House New Delhi, 2006).

3.

Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, Code Of Criminal Procedure(17th Ed., Wadhwa and Company, Nagpur, 2007).

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NALANDA LAW COLLEGE MOOT COURT - 2019 DICTIONARIES:1.

Brayan A. Garner, Black’slaw dictionary(9thed. Thomson West,2009).

2. The International Webster’s New Universal Dictionary (2nded. Trident Press International, USA, 1983). 3. P. RamnathaIyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010). SUPREME COURT CASES 1. Bachhan Singh v. State of Punjab, AIR 1980 SC 898. 2. Balwant Singh v. State of Punjab, 1983 (1) C.L.R. 473 3. Balwant Singh v. State of Punjab, AIR 2003 SC 3617. 4. Epuru Sudhakar v. Govt. of A.P, AIR 2006 SC 3385. 5. Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947. 6. Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883. 7. Machhi Singh v. State of Punjab, AIR 1983 SC 957 8. Ramnaresh v. State of Chhattisgarh, AIR 2012 SC 1357. 9. Saibanna v. State Of Karnataka, App. (Cr.) 656 of 2004. 10. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. 11. Strickland v. Washington, 466 U.S. 668 (1984). 12. Sudam v. State of Maharashtra, (2011) 7 SCC 125. 13. William Slaney v. State of M.P., AIR 1956 SC 116.

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NALANDA LAW COLLEGE MOOT COURT - 2019 HIGH COURT CASES 1. Bhagwan Tukaram Dange v. State of Maharashtra, App. (Cr.) No.1823 of 2008 (2014) 2. State of Chhattisgarh Vs. Hariram Ray, App. (Cr.) No. 545 & 628 of 2013 (2015) 3. State of Delhi v. Mohd. Afzal Guru, 2003 VIIAD Delhi 1. 4. Suresh Kumar Ray v. Raju @ Rajesh Ray, 2013 CriLJ 4671. 5. Yakub Abdul Razak Menon v. State of Maharashtra, 2015 (8) Scale 339.

DATABASES REFERRED 1. http://www.scconline.com 2. http://www.manupatra.com 3. http://www.westlaw.org 4. http://www.indiankanoon.com 5. http://www.lexisnexis.com 6. http://www.judis.nic.in

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NALANDA LAW COLLEGE MOOT COURT - 2019

Statement of Jurisdiction The appellant has filed an appeal to the Hon’ble Court of Bombay to review the judgement passed by the Sessions Judge

The Hon’ble High Court has the jurisdiction to hear the matter under Section 374(2) of the Criminal Procedure Code,1973

Section 374 appeal from conviction

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2 has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.

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NALANDA LAW COLLEGE MOOT COURT - 2019

Statement of Facts 

On 05.03.2010 at about 6.30 p.m. Sayali (the deceased), aged about 13 years, had gone alone from her house in the village Khairlanji to the place near the village cremation ground to prepare cow dung cakes.



While she was returning to home, the 3 accused forcibly took her to sugarcane field and raped brutally.



Hearing the cries of the victim Madanlal, (PW 1) and Sunderlal (PW 2) who were passing nearby came to the same field and saw that the accused were tightening the dupatta around her neck.



When the said witness shouted, all the 3 accused ran away.

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Madanlal and Sunderlal tried to chase them, but could not catch any of them.



When they returned they found that victim was dead.



Both of them informed Parshuram, the father of the deceased.



The victim’s father at 10 pm on 05.03.2010 reported matter to the police and FIR was lodged under IPC S.302, S.376 and S.34 against all 3 accused.



Police officer sent deceased victims body to civil hospital for post mortem.



Post mortem reports clearly indicate that the victim was first rapes brutally and the death was caused by strangulation and there were marks of tightening of the dupatta around the neck of the deceased.



The post mortem reports indicate the infection inside the victim’s private part and the doctor was of the opinion that it could be because of some insertion of metal object in her private part.

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NALANDA LAW COLLEGE MOOT COURT - 2019 STATEMENT OF ISSUES

ISSUE NO 1

Whether Appeal is maintainable?

ISSUE NO 2

Whether case falls in rarest of rare cases?

ISSUE NO 3

Whether death penalty is appropriate in this case?

ISSUE NO 4

Whether Constitutional Rights have been infringed in this case?

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NALANDA LAW COLLEGE MOOT COURT - 2019

Argument In the present case act of the three accused brutally raping and murdering the deceased Sayali falls into the category of “rarest of rare” cases. It is significant to mention that there is no hard and fast criterion of “rarest of rare” cases and special circumstances has to be taken into consideration. However, Apex Court has time to time enumerated certain factors which have to be taken into consideration by court for putting an incident in category of “rarest of rare case” which are: manner of commission of the crime, socially abhorrent nature of the crime and such act which shocks the collective conscience of the community. In other words, it is the nature and gravity of the crime which are germane for consideration of appropriate punishment in a criminal trial. In the present case, act of the accused fulfils all the criterion of the doctrine of “rarest of rare” cases. 2.

Hon’ble Apex Court in the case of Machhi Singh v. State of Punjab described

meaning of manner of murder and stated that when murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community then such act is one of the aspects of the doctrine of “rarest of rare” cases manner of commission of crime by accused.. 3.

In the present case act of the three accused is abhorrent because Sayali was minor

child who could not have provided even an excuse, much less a provocation, for brutally raping and murder. Apex Court has already stated that killing children is an act of brutality and sufficient to apply doctrine of “rarest of rare” cases. In the present case, the three accused raped brutally and murdered by insertion of some metal object inside the victim’s private part and tightening of the dupatta around the neck of the deceased Sayali which clearly establishes that his act falls under the purview of “rarest of rare” cases. The act of the three accused also shocks the collective conscious of the community. Therefore, act of accused shocks the collective conscience of the community and falls under the purview of “rarest of rare” cases. 4)In addition to the above all three accused are habitual drinkers and have also have committed sexual assaults many times. If we see at the pattern of brutal rape and murder committed by them there is high probability that they will commit such heinous crime again. The Apex Court has upheld the death penalty awarded to the accused of Nirbhaya rape-cummurder case after calling it as “rarest of rare” case and extreme punishment is granted for the 10

NALANDA LAW COLLEGE MOOT COURT - 2019 sake of ensuring justice. In a criminal trial, the nature and gravity of the crime are taken into consideration for determining a suitable punishment. The Court shall be deemed to have failed in discharging its duty if proportionate punishment has not been awarded for those crimes which are committed not only against one particular individual but can be said to have been committed against the society at large. Therefore, weight age is given to the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”.[1] That is to say, the existence of such extraordinary grounds under which the Court has no other resort than to effect a capital punishment for the survival of the State as well as society.

Evolution of Rarest of Rare Doctrine In Maneka Gandhi v Union of India, the Supreme Court has ruled that the death penalty can be awarded only in special cases. It constitutes an exceptional punishment which will be imposed only with special reason and must be properly conferred by the High Court. In Rajendra Prasad v State of Uttar Pradesh, Justice Krishna Iyer observed that “If the murderous operation of a die-hard criminal jeopardises social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated”[5]. Iin Santosh Kumar Bariyar v. State of Maharashtra, Justice S B Sinha in his majority judgment has imposed a duty upon the court that “appropriate punishment is to be determined on a case-by-case basis. The death sentence is not to be awarded save in the `rarest of rare’ case where reform is not possible.” Basing reliance on Bachan Singh case, the following can be considered as aggravating circumstances:

Murder committed with previous planning and extreme brutality



Murder involves exceptional decadence

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Murder of any member of the armed force of the Union, police force or a public servant (i) on duty (ii) anything done or attempted to be done in the lawful 11

NALANDA LAW COLLEGE MOOT COURT - 2019 discharge of his duty whether or not at the time of the murder he was such member or public servant 

Murder of a person in the course of lawful discharge of his duty u/s 43, 37 and 129 of CrPC.

In the present case act of brutality of the accused persons satisfies the aggravating circumstances. 5) In the present scenario where such crimes are continuously increasing reformative ideas are totally ineffective.In the present case if death penalty is not given it will only badly influence the criminals like them out there to commit such heinous crimes.In the present case due to increasing number of crimes like in the present case reformation of the accused is ineffective. 6)As observed by the bench of Madhya Pradesh High Court in Case of Mahindra Singh Gond vs State of Madhya Pradesh “Justice demands that the court should impose a punishment befitting the crime so that it reflects the public abhorrence of the crime.” In the present case this Hon’ble Court to confirm death penalty so that justice is given by imposing punishment befitting the crime so that it refects the public abhorrence of the crime. 7) Humanity is more in danger in the hands of persons like the three accused.The three accused have committed an act of extreme depravity when they brutally raped and murdered a minor girl Sayali.The crimes against the girl child are on rise therefore extreme punishment may deter the other criminals indulging such crime.The extreme punishment may convey a message to these predators that it is not a soft state where criminals committing such crimes may get reprieve in the guise of humanity. 8)The humanity is more in danger in the hands of the persons like the accused and the only punishment which they deserve for having committed the reprehensible and gruesome gangrape and murder of a innocent minor girl to satisfy their lust is nothing but death. 9) The alarming increase in the rising incidents of child rapes has led to increasing anger of the society over rape of minor across the country therefore death sentence is a necessity for deterring other potential offenders.

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NALANDA LAW COLLEGE MOOT COURT - 2019 10) The pain and suffering of the minor girl is very material.This case cannot be considered as lesser to Nirbhaya because the victim who was innocent having a bright future was murdered for the purpose of sexual act and in the day light within the vicinity of the village.

Article 14 and 21 of the Constitution has not been violated It is humbly submitted before this Hon’ble court that trail of the accused persons was fair from commencement to the conclusion. In the present case it has already been established that it was a prima facie that three accused has committed rape and murder with common criminal intention falls under the category of rarest of rare cases.The three accused has got opportunity of being heard.The three accused were heard on the sentence and were represented by counsel of their own choice.Therefore it can be said that no prejudice has been caused to the appellants. The three accused has got opportunity of being heard and they were represented by counsel of their choice.There has been no delay in hearing their matter and they have confessed to their crimes to Sessions court.The law sees Death penalty as the extreme means by which the convict is irreversibly removed from the society wherein he / she is deemed ‘not fit to live’. Put differently, ‘sentence to death’ is pronounced if and only if the convict, in the view of the Court, is so dangerous a threat to the society that his freedom, even in distant future, can’t be afforded. Moreover, by committing the crime that he / she is accused and found guilty of, the convict had violated the ‘right to life’ of the victim(s) thereof. By committing the crime, the criminal is deemed as having virtually forfeited his / her rights. Hence, the penalty imposed can’t be treated as violation of the convict’s rights. The constitutionality of death sentence was canvassed for the first time before the apex court in the case of Jagmohan Singh v State of Uttar Pradesh. Section 302 of IPC was challenged as violative of Article 14, 19 and 21 of the Constitution. The Court upheld the sentence of death as constitutional and held, that even after assuming that right to life is the foundation stone of the freedom enumerated under Article 19 and that no law can be enacted which takes away the life of a person unless it is reasonable and in public interest. So, it is difficult to hold that capital punishment as such was unreasonable or not required in public interest. If the entire procedure for a criminal trial under the CrPC for arriving at a sentence of death is valid then the imposition of the death sentence in accordance with the procedure established by law cannot be said to be unconstitutional.

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NALANDA LAW COLLEGE MOOT COURT - 2019 In Bachan Singh, the Supreme Court reaffirmed its earlier decision in Jagmohan case by 4:1 majority. It was argued that the Supreme Court in Maneka Gandhi v Union of India has given a new interpretative dimension to articles 14, 19 and 21, and their interrelationship in every law of punitive detention both in its procedural and substantive aspect must pass the test of all three articles. However, the Court rejected this argument. It was held that article 19 unlike article 21, does not deal with the right to life and personal liberty and is not applicable for judging the constitutionality of the provisions of section 302 IPC. As regards article 21, it was recognized that in the said article, the founding fathers recognized the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by law, and there are several indications in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty, such as, Entries 1 and 2 in List II, article 72(1)(c), article 161 and article 34. In T.V. Vatheeswaram v State of T.N., it was held that delay exceeding two years in the execution of death sentence entitles a convict to get it commuted to life imprisonment. But it was overruled in Sher Singh v State of Punjab, that no such limit could be fixed for the execution of death sentence without regard to the facts of every case.

Case Law Mukesh & Anr vs State for NCT of Delhi & Ors The Supreme Court confirmed the death sentence awarded to the four convicts in the 16 December, 2012 gangrape and murder case, terming it the 'rarest of rare', most brutal, barbaric and diabolical attack on the 23-year-old paramedic student. The case sent a "tsunami of shock" all over, the apex court said, adding that the convicts treated the victim as an object of enjoyment, with the single purpose of ravishing her. A three-judge bench, through a unanimous verdict, upheld the Delhi High Court judgment that had concurred with the trial court decision. Those who will face the gallows are Mukesh (29), Pawan (22), Vinay Sharma (23) and Akshay Kumar Singh

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NALANDA LAW COLLEGE MOOT COURT - 2019

PRAYER

The Respondent, therefore, pray that:1. The case of the accused falls in rarest of rare cases 2. There is no violation of Article 14 and Article 21 of Constitution of India. 3. The Accused will be executed.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE RESPONDENT SHALL, AS IN DUTY BOUND, EVER PRAY

MUMBAI, DATED :

ADVOCATE FOR THE RESPONDENT

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