URN No-

13th K.K Luthra Memorial Moot Court Competition 2018

Memorial on behalf of Respondent

 Table of Contents
List of Abbreviations

Table of Authorities

Statement of facts

Issue raised

Summary of arguments

Written pleadings

Prayer
 LIST OFABBREVIATION

AIR All India Reporter

All Allahabad High Court
Cal Calcutta High Court
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal
Procedure
Del Delhi High Court

Ed. Edition
Guj Gujarat High Court
IPC Indian Penal Code
IC Indian Cases
Mad Madras High Court
n. Foot Note no.
Ori Orissa High Court
p. Page No.
P&H Punjab and Haryana High
Court
Pat Patna High Court

Raj Rajasthan High Court

SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
v. Versus
 Table of Authorities

Table of cases

1. Bachan Singh v. State of Punjab, (1980) 2 SCC 684;

2. Shankar Kisanrao Khade v. State Of Maharashtra, (2013) 5 SCC 546;
3. Kansas v. Marsh, 548 U.S. 163 (2006).
4. Shankar Kisanrao Khade v. State Of Maharashtra, (2013) 5 SCC 546;
5. Gurvail Singh alias Gala v. State of Punjab, (2013) 2 SCC 713;
6. Santosh Kumar Singh v. State of M.P., (2014) 12 SCC 650.
7. Zant v. Stephens, 462 U.S. 862 (1983)
8. Gregg v. Georgia, 428 U.S. 153 (1976);
9. Cunningham v. California, 549 U.S. 270 (2007)
10. Birju v. State of M.P., (2014) 3 SCC 421
11. Mahesh Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292;

12. Dharam Deo Yadav v. State Of Uttar Pradesh, (2014) 5 SCC 509;
13. Purushottam Dashrath Borate v. State of Maharashtra, AIR 2015 SC 2170;
14. Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338;
15. Sangeet v. State of Haryana, (2013) 2 SCC 452;

16. Prosecutor v. Tihomir Blaskic, IT-95-14-T (2000);

17. Prosecutor v. Goran Jelisic, IT-95-10-T (1999);
18. Jameel v. State of U.P., (2010) 12 SCC 532
19. Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220
20. State of M.P. v. Basodi, (2009) 12 SCC 318
21. Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561
22. Bantu v. State of U.P., (2008) 11 SCC 113
23. State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554
24. State of U.P. v. Sri Krishan, (2005) 10 SCC 420
25. State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715.
26. Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667
27. Brajendrasingh v. State of Madhya Pradesh, (2012) 4 SCC 289

28. Mahesh v. State of Madhya Pradesh, (1987) 3 SCC 80.

29. Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498;
30. Mofil Khan v. Jharkhand, (2015) 1 SCC 67;
31. Gurvail Singh alias Gala v. State of Punjab, (2013) 2 SCC 713.
32. Vikram Singh v. Union of India, (2015) 9 SCC 502;
33. Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713;
34. State of U.P. v. Satish, (2005) 3 SCC 114;
35. Lehna v. State of Haryana, (2002) 3 SCC 76;
36. Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561;
37. Weems v. United States, 30 S. Ct 544 (1910).
38. Vikram Singh v. Union of India, (2015) 9 SCC 502.
Statutes

Indian penal code

Code of criminal procedure

Indian Evidence Act

Constitution

The Constitution of the United States of America, 1787.

The constitution of India

Articles

Treaties

Charter of Fundamental Rights of the European Union (2000).

Books

M.P Jain, Indian Constitutional Law (Lexis Nexis) 7th edn.

Dr. Durga Das Basu, Introduction to the constitution of India. (Lexis Nexis) 20th edn.
SC Sarkar, The code of criminal procedure (lexis Nexis), volume 2, 10th edn.
KD Gaur, Criminal Law, cases & materials (Lexis Nexis), 8th edn.
R.V. Kelkar’s Criminal procedure (Eastern Book company), 5th edn.
Prof. S.N. Mishra, Indian penal code (central law publications) twentieth edn.

Dr. Avtar Singh, princioles of the law of evidence (central law publication) 21st edn.
Ratanlal & Dhirajlal, The Indian Penal code, (Lexis Nexis) 32nd Edn. Reprint-2012.
K.D. Gaur, The Indian Penal code, (Universal Law Publication) 2nd Edn.
B.B Mitra, Code of criminal procedure, (Kamal law House Kolkata) 21st Edn.
Choudhary Khosla $ Mehta, The Oxford Handbook of the Indian constitution. Oxford, south
Asia Edn.
B.B Mitra $ Sen Gupta, transfer of Property Act, (Kamal Law House Kolkata), 20th edn. 2012.
Mulla, The transfer of property Act (Lexis Nexis), 11th Edn. 2013.
PSA Pillai’s Criminal Law, Lexis Nexis, 12th Edn. 2013.
1. Andrew Ashworth, SENTENCING AND CRIMINAL JUSTICE, 84 (2005)

2. C.K.Takwani, INDIAN PENAL CODE (1st edn., 2014

3. David Johnson, THE NEXT FRONTIER: NATIONAL DEVELOPMENT, POLITICAL

CHANGE, AND THE DEATH PENALTY IN ASIA (2009)

4. Harvey Berger, SEVENTH ANNUAL REPORT AND DIRECTORY OF ACCREDITED

LABORATORIES (1984).

5. K.D. Gaur, TEXTBOOK ON THE INDIAN PENAL CODE (2009)..

6. N. Prabha Unnithan, CRIME AND JUSTICE IN INDIA (2013).

7. Notburga K. Calvo-Goller, THE TRIAL PROCEEDINGS OF THE INTERNATIONAL

CRIMINAL COURT (2006)

8. R. Mulgrew, RESEARCH HANDBOOK ON THE INTERNATIONAL PENAL SYSTEM

(2016).

9. Susan Easton, SENTENCING AND PUNISHMENT: THE QUEST FOR JUSTICE (2012)

Notburga K. Calvo-Goller, THE TRIAL PROCEEDINGS OF THE INTERNATIONAL

CRIMINAL COURT, 109 (2006).
David Johnson, THE NEXT FRONTIER: NATIONAL DEVELOPMENT, POLITICAL
CHANGE, AND THE DEATH PENALTY IN ASIA, 438 (2009); N. Prabha Unnithan, CRIME
AND JUSTICE IN INDIA, 378 (2013).

Miscelleneous

1. 262nd Report of the Law Commission of India, THE DEATH PENALTY .........

2. 35th Report of the Law Commission of India, CAPITAL PUNISHMENT .......

3. 41st Report of the Law Commission of India, THE CODE OF CRIMINAL PROCEDURE,
1898.....

4. Henry Campbell Black, BLACK’S LAW DICTIONARY ...............

Statement of Jurisdiction

The Hon’ble Court has jurisdiction to try the instant matter under section … read with section….
Statement of facts

Hallbach is a federal democratic republic in eastern Europe, follows common law system and has
a criminal justice structure similar to that India. Hallbach shares its western territorial border
with Hoko. Hoko has claimed the land on which two of Hallbach’s cities, x and y, are situated.
This area is close to the current international border beyween hoko and Hallbach. It is considered
that famous emerald ‘’covfefe’’ was gifted by Hoko king Nicholas v to the Hallbach king in
public ceremony

When Hallbach became a constitutional democracy in 1949, the emerald was treated as a
national asset and displayed in the State museum at’ X’ It is a symbol of Hallbachian pride.
Since 1975, Hoko had a succession of military dictators that rule through a puppet senate
assembly. In 1999, former dictator General Rouge was democratically elected as the president of
Hoko. It was believed that General Rouge continued to rule with an iron hand and people suspect
his polling numbers. A large swathe of people remained poor, with almost 35 percent of the
population below the poverty line.

Hokian culture, in the form of pop music , TV shows and movies were wildly popular and in
part, had helped fuel the younger population to agitate for a new constitution. The hokian
entertainment industry had spawned three giant media conglomerates (with accompanying
allegations of corruption, nepotism and favoritism.

Since 2005, Jupiter Hestia had hosted a popular daily video podcast where she spoke to a variety
of people on the theme of installing Hokian pride and nationalism. Hestia had following of
almost 68 percent of Hokian population.

In December 2009, a local movement began in a small Hokian town protesting the price of
bread. A few days after the Hestia podcast, the issue of the price of bread becomes national issue.
General Rouge was widely seen as needing a distraction from domestic politics.

After 4 month, on 15 march 2010, Hestia had remarked on her podcast, “ my people-pulse tells
me that we need a distraction. Something, anything. Come on Hoko, lets do something else for a
change. Hestia’s changed her social handle to @getmecovfefe and sent a tweet, ‘Been there too
long #getmecovfefe’ the tweet quickly went viral in Hoko.

On 21 march send a personal message/tweet read, ‘Son, still at the national sec. meeting, looks
like #getmecovfefe’

On 25 march 2010, the senate Assembly of Hoko passed a binding resolution, authorizing its
military to take all necessary steps to protect the Hoko people and its culture.

An extract of the official order dated 26 march 2010 by the Defence minister to chief of staff of
the Hoko Army was leaked to the press and read as, “ The people have entrusted us with a
mandate to reclaim our historic lands. Your mission, should you choose to accept it, is to restore
our historic lands to the long suffering people of Hoko.

Soon thereafter, border skirmishes between Hoko and Hallbach began escalating. On 25 Aprail
2010, Hallbach ceased to be in control of X and Y.

Almost all the soldiers sported red bandanas or hats with a slogan, ‘MAKE US #COVFEFE
AGAIN’ they were seen to be responsible for several reprehensible acts, including arson, looting,
sexual offences and the summary execution of citizens of X and Y in revolutionary Tribunals. It
is important to ote that they attacked on state museum X.

Due to international pressure, Hoko promised to cooperate with Hallabach. By 10 may 2010,
Hallbachian forces regained the control over X and Y and arrested a number of militia members,
many of whom were found to be members of special forces. Apart fro this Hallabach also
counted the loss of its beloved covfefe

On 19 may 2010, Hestia said that a mysterious donor had given her what appeared to be the
covefefe emerald and next day Hoko announced that in light of her cultural contributions to
Hoko, she would be the next ambassador.
On 29 may Jupiter Hestia was reported missing and produced before a judicial magistrate and
remanded to 15 days police custody. Her ground of arrest had been offences including arson,
looting, sexual offences and the summary execution of citizens of X and Y in revolutionary
tribunal.

Federal court set up one special court to solve the dispute and appointed A special prosecutor
who was given the liberty of appointing his own team of prosecutors and power to direct the
investigation.

Special court passed a judgement within 23 month which was challenged by Hallbachian
Government, convicted Militia and Jupiter Hestia preferred appeals before the Federal court of
Hallabach.

Statement of charges

All militia, Hoko national including Jupiter Hestia has been charged under Section 120B read
with Section 302 and 121 of Indian penal code,1860 for the crime of criminal conspiracy,
murder, and waging war against Hallabach.
Summary of Arguments

Issue I

Whether the arrest and subsequent prosecution of Jupiter Hestia is valid?

It is humbly submitted before this Hon’ble Court that arrest and Subsequent proceeding of
Jupiter Hestia is

Issue II

Whether the Militia, all Hoko nationals including Jupiter Hestia is guilty of criminal
conspiracy, murder and waging war against state?

It is humbly submitted before this Hon’ble court that, All Hoko nationals including Jupiter Hestia
who is mastermind of entire crime are liable for criminal conspiracy, murder and waging war
against the state.
 Issue III

Whether the investigation and trial procedure is contrary to law?

It is humbly submitted before this Hon’ble Court that the trial procedure is not contrary to law.
Because, the entire procedure, neither violates the principle of criminal justice system nor the
constitutional norms. Entire trial procedure follow the basic norm of criminal justice system in
present case?

Issue Iv

Whether the death sentence is an appropriate punishment for all militia and Hoko nationals
including Jupiter Hestia is valid?

It is well-settled that in cases pertaining to death penalty, three tests need to be satisfied prior
to the sentencing stage1. It is submitted that the conditions for awarding the death penalty
have been fulfilled in the present case. It is important to note that the three test laid down in
the case of Bachan singh v State of Punjab. ie, crime test, criminal test, or the most important
the Docterine of rarest and rare case has satisfied, thus the death sentence is an appropriate
punishment for all militia, Hoko national including Jupiter Hestia is Valid.

Issue V

Argument Advanced

1. Whether the arrest and subsequent prosecution of Jupiter Hestia is valid?

It is humbly submitted that in the present case, unknown mysterious donor had given the
Hallabach Central police and they announced the same as per their ability that what she appeared
to be one Jupiter Hestia. Section 43(2) of the India penal code clearly said that, if there is reason
to believe that such person comes under the provisions of section 41(when police may arrest
without warrant), a police officer shall re-arrest him.

Aticle 22(2) of the India constitution state, Every person who is arrested and detained in custody
shall be procduced before the nearest magistrate within a period of twenty-four hours of such
arrest excluding the time necessary for the journey. In the present case mysterious donor had

1
Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Shankar Kisanrao Khade v. State Of Maharashtra, (2013) 5 SCC
546; Kansas v. Marsh, 548 U.S. 163 (2006).
given on 4th june 2010 and on 5th june 2010, Jupiter Hestia was produced before the court as per
the section 57 of criminal procedure code of India.

To produce before the judicial magistrate as per section 57 of Crpc, it is clear that the argument
of defence regarding abduction which is complety baseless.

Article 22(1) of constitution of India state that the accused must be informed that in which
ground He or She is arrested and as per the facts sheet it is clear that her ground of arrest had
been Conspiracy, Waging war against Hallabach, theft, abetment of offences including arson
looting and sexual offences.

As per the law, when unknown mysterious donor had given to the Hallabachian central army at
that time Hallabachian central army announced that a mysterious donor had given them someone
who appeared to be Jupiter Hestia, it is at that moment enough regarding the notice of his well
wisher as she was alien and belongs from not a friendly country of Hallbach.

judicial magistrate after applying the judicial mind considered that yes there is reasonable
apprehention that she has committed crime. As she was the mastermind of entire crime, her acts
as she changed her social handle ”Been there too long #getmecovefefe” which was quickly viral
in entire Hoko led the border skirmishes between Hallabach and Hoko and several offences
occurred in Re X and Y territory of Hallabach thus pass an order for 15 days judicial custody.

As I said due to her acts several cases comes before the court then federal court setup special
court as per the special court Act, 2010 of Hallabach. Preamble of the special court Act, 2010:
state that this encted for trial of all persons including armed official for the crimes committed by
them in war against Hallabach.

Section 10 of the Act state that, the senate may by notification designate any court as a special
court for trial of offences committed by them in the war against the Hallabach.

In the light of section 33 ( The special court is not strictly bound by the provisions of the
Evidence Act and they may be applied as far as the special court deems fit) and

Justice delayed justice denied, As per the constitution of India Speedy trial is basic human rights
what the federal courts directs the special court to resolve the matter within 24 months.

As far as the competency of the court is concerned, section 5 of Hallabach penal code said that
Any person liable, by any Hallabach Law to be tried for an offence committed beyond Hallabach
shall be dealt with according to the provisions of this Act for any offence committed beyond
Hallabach in the same manner as if such act had been committed within Hallabach.
In case of State of Maharashtra Vs Christian Community Welfare Council of India2 [(2003) 8
SCC 546]

In this case, SC departing from long tradition of not arresting women at night and not arrest
women in the absence of a female constable, The Supreme Court held that

It is the general and traditional rule is that Females are not be arrested without the presence of a
lady constable but there are exception in some cases, where crime is very serious and arrest is
important then a lady may be arrested without the presence of lady constable. Moreover as per
facts sheet which state that Mysterious donor had given to the central army of Hallabach so it is
the possibility that lady army would be available and without any evidence defence cannot make
baseless allegation.

(1.1). Whether the arrest of Jupiter Hestia followed the constitutional norms?

Article 22 of Constitution of India, gurrantees the minimum rights which any person who will
enjoy and it provides certain rule which is as follows:

Rule 1. Information about the grounds of arrest: The Supreme court has said about this rule in
Shobharam:3 case in order to satisfy the principle of Habeas corpus. The grounds given to the
arrested person should be intelligible.4 as per the facts sheet it is clear that her ground of arrest
had been Conspiracy, Waging war against Hallabach, theft, abetment of offences including arson
looting and sexual offences.

2
(2003) 8 SCC 546.
3
State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910.
4
Vimal v. State of Uttar Pradesh. AIR 1966SC 1910,
Rule 2. Production of the arrested person before a magistrate: This is mandatory provision5 In
the present case mysterious donor had given on 4th june 2010 and on 5th june 2010, Jupiter Hestia
was produced before the court as per the constitutional requirement.

Rule 3. No person is to be detained in custody beyond 24 hours without the authority of

magistrate. In Khatri v. State of Bihar6 it is the constitutional requirement to produce the accused
within 24 hour. In the present case mysterious donor had given on 4th june 2010 and on 5th june
2010, Jupiter Hestia was produced before the magistrate..

Non-Application of Articles 22(1) $ 22(2)

Article 22(3) makes two exceptions. Articles 22(1) and 22(2) do not apply to;

(a). enemy aliens, and

(b) to persons arrested or detained under a law providing for preventive detention.

In Zahira Habibullah Sheikh and ors v. State of Gujrat and ors. (iv)The supreme court of India
observed ‘’each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair
trial is as much injustice to the accused as it is to the victim and to society. Therefore it is
evident that all the constitutional requirement has been fulfilled in the present case.

(1.2). Whether the arrest and procedings of Jupiter Hestia followed the rule established by
criminal justice system?

Issue 2

Whether the Hoko nationals including Jupiter Hestia and militia are liable for murder,
criminal conspiracy, and waging war against Hallabach?

Tweet , speech comes under the ambit

In order to constitute the offence of abetment by conspiracy, there must be a combining

together of two or more persons in the conspiracy, and an act, or illegal omission must take

5
State of Uttar Pradesh v. Abdul Samad, AIR 1962 SC 1506;
6
AIR 1981 SC 928
place in pursuance of their conspiracy. Abetment is punishable because it leads to commission
of crime.

Criminal conspiracy: It is humbly contended that the accused is guilty for committing the
offence of criminal conspiracy under section 120 A, IPC. Section 120B prescribes the
punishment for committing criminal conspiracy. In order to bring a successful conviction under
this charge, however, it is pertinent to refer to sec 120A, IPC which elucidates the essentials of
Criminal conspiracy.

1. There should be an agreement between two or more persons who are alleged to
conspire.
2. The agreement should be to do or cause to be done:
(a). an illegal act,
(b) an act which may not itself be illegal by illegal means.

For criminal conspiracy to be established, there needs to be a common intention or common

design on part of all entering into the agreement. Such agreement can be expressed or implied.
It might also be inferred by conduct of parties.95 Members agreeing to a common design can
safely be presumed to be a part of the criminal conspiracy. In our case, conduct of the Jupiter
Hestia who changed her social Handle to @getmecovfefe and sent a tweet, “Been there too
long #getmecovfefe’7 and all Hoko national and Militia wore mixure of uniforms and jackets,
and all the Hoko nationals (soldiers) sported red bandanas or hats with slogan, ‘’Make US #
COVEFEFE AGAIN’’8itself refers the intention of the party.

In State (C.B.I./S.I.T.) v. Nalini,9 Everyone of the conspirator need not have taken active part in
commission of each and every one of the conspiratorial acts for the offence of conspiracy to be
made out. The proseqution need not necessarily prove that the perpetrators expressly agreed
to do and/ or caused to be done the illegal act the agreement may be proved by necessary
implication, under section 120B.

In Afsan Guru10 commonly known as ‘’parliament Attack case ‘’, the apex court opined that as
conspiracy is mostly proved by circumstantial evidence, usually both the existence of conspiracy
and its objects have to inferred from the circumstances and the conduct of the accused while
elaborating the principle court said:

7
Page no 4, Exhibit 12, of facts sheet.
8
Para 16. Page no 4 of fact shhets.
9
Page 371 of INDIAN PENAL CODE K.D. GAUR second edition.
10
State (N.C.T of delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820;
in regard to the appreciation of evidence relating to the conspiracy, the court must take care to
see that the acts or conduct of the parties must be conscious and clear enough to infer their
concurrence as to the common design and its execution.

Thus it is established that, all the Hoko nationals including Jupiter Hestia and militia are liable to
be criminal conspiracy, all are entitled death sentence as per Section 120B of Indian penal code.

Waging war against Hallabach

To constitute an offence under section 121, IPC no specific number of persons is necessary and
the manner in which they are equipped or armed is not material. The true criterion is quo animo,
i.e., (With what mind, intent) did the gathering assemble.

In Navjot Sandhu alias Afsan Guru11 the supreme court of India held terrorist entering
Parliament House with Sophisticated arms and powerful explosives when parliament was in
session causing heavy casualties shaking the entire nation amounts to waging or attempting to
wage war against the Government of India. Case being rarest of rare imposition of death
sentence was held imperative.

In US 37 out of 50 states have death sentence statute

In McGautha v. California,12 that virtually all states left to the unguided discretion of judge or
jury the decision whether a particular prisoner should or should not be awarded death penalty.

In profit v. Florida,13 The US Supreme court affirmed the Florida death sentence that was
imposed after a judge found four aggravating circumstances, along with Gregg decision, these
cases mean that executions, which had been halted in the United states since 1972, can now go
ahead with the imposition of death sentence.

Canada
The supreme court of Canada in David Mostyn Pritchard v. Queen,14 (2008) held that accused is
liable for murder of S, wife of a whole sale dealer of drug Supplier M, under section 231(5) (e)

11
(N.C.T of Delhi) v Navjot Sandhu and Sayed Abdul Rehman Gilani, AIR 2005 SC 3820
12
402 US 183 (1971).
13
428 US 242 (1976)
14
(2008) SCJ No. 61: 2008 SCC 59:
of the criminal code of Canada during the course of a robbery on the ground of circumstantial
evidence.

What was true import of expression “Government of India ‘’ was used in section 121 of IPC to
imply Indian State, juristic embodiment of Sovereignty of country that derives its legitimacy
from collective will and consent of its people However primary and first offence that defendant
and his co-conspirators committed was offence of waging war against the state. It didn’t matter
that the aim of attack was something else what matters that attack was aimed at Hallabach and
Hallabachian.-it was by foreign nationals

Ingredients of the section:

According to the section following ingredients are necessary: —

(1) The person must have (a) waged war, or (b) attempted, or (c) abetted the waging of war; and

(2) Such war must be against the Government of India.

It is important to note that this section is applies to everyone, whether an Indian citizen or a
foreigner.

It is well settled that mere a provoking speech is enough to fulfill the essential requirement of
waging war against the state. In the present case Jupiter Hestia’s changed her social handle to
@getmecovfefe 15 and it led that X and Y were in the hands of Hoko16 in others words state X
and Y captured by Hoko nationals and militia thus it is established that All Hoko nationals
including Jupiter Hestia and militia are committed waging war against Hallabach.

‘’Whoever wages war against the state or attempts to wage such war, or abets the waging of
such war, shall be punished with death Hence it is established that all Hoko nationals including
Jupiter Hestia and militia are entitled to death sentence.

Murder

In Bachan Singh v. State of Punjab.17 The court opined by majourity that the provision of death
penalty, as an alternative punishment for murder in Section 302, penal code, is not

15
Para 12 of facts sheet
16
Para 16 of facts sheet
17
AIR 1980 SC 898.
unreasonable and is in public interest. Therefore section 302 does not violate the letter or the
ethos of Art. 19.

The provision of death penalty as an alternative punishment for murder is also not violative of
Art. 21. This article clearly brings out the implication that 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.

The procedure provided in the Criminal procedure code for imposing capital punishment for
murder cannot be said to be unfair, unreasonable and unjust.

The supreme court has in Allauddin Mian,18 reiterated the proposition that ‘’ only in those
exceptional cases in which the crime is so brutal diabolical and revolting as to shock the
collective conscience of the community, would it be permissible to award the death sentence.

In Africa, the death penalty is mandatory in Somalia (northern ) and Zambia for certain capital
crimes. In North Rhodesia, it is mandatory only for murder,

In Asia, the death penalty is mandatory in Bangladesh for alife convict; in Pakistan for a mutder
committed by a life convict and for participation in insurrection; in Mayanmar,(Burma) for
murder committed in the course of the commission of another crime and for a murder
commited by a life convict; in the federation of Malaysia19; for murder, and in Hong Kong and in
Shrilanka for aggravated forms of murder. In japan the death sentence is given for crimes
against the security of state,

It is humbly contended that the all accused is guilty for committing the offence of murder under
Sec 302, IPC. Sec 302 prescribes the punishment for committing murder. In order to bring a
successful conviction under this charge, however, it is pertinent to refer to sec 300, IPC which
elucidates the essential of murder.

A person is guilty of murder if he intentionally causes the death of a person or causes such
bodily injury as he knows, is likely to cause death of that person or causes such bodily injury,
which in the ordinary course of nature results into death or commits an act so dangerous that it
must, in all probability to cause death of that person.20 The prosecution humbly contends that
both, the actus reus(A) and Mens rea(B) has been fulfilled in the present case.

(A) Actus reus is any wrongful act21 . Thus, in a case of murder, actus reus would be physical
conduct of the accused that causes death of the Victim. In the instant case, the actus reus is

18
AIR 1989SC 1456
19
Malaysian Penal code (FMS Cap. 45) section 302: ‘’Whoever commits murder shall be punished with death.’’
Death sentence is mandatory punishment for murder in Malaysia)
20
Sec 300, IPC
21
Aiyar, P Ramanatha, The Law Lexicon, p. 49 (2nd ed 2006)
established by the act of the parties(A), or the documentary evidence(B). here as per the
section 65(A) of Indian Evidence Act, 1872 which talks about regarding the electronic evidence
is admissible.

(B) Mens rea of murder is established

Mens rea is considered as guilty intention 63, which is proved or inferred from the acts of the
accused. 64 It is submitted that the Intention to kill is established(A) in light of clear-cut motive
of the accused (B) Absence of motive would not be sufficient ground to dismiss the case(C)

It is pertinent to note that, whoever commits murder shall be punished with death, or
imprisonment for life, and shall also to be fine. Further more section 34 defines joint liability
which needs to satisfy 3 essentials.

1. Criminal act must be committed by several persons.

2. Criminal act must be committed with common intention.
3. Participation by all, either direct or indirect.

In this present case all the essentials of murder section 300 of IPC and all the essential of joint
liability under section 34 of IPC is fulfilled thus all the accused is liable for murder.

3. Whether the investigation and trial procedure is contrary to law?

It is humbly submitted that, Crime is a legal wrong followed a procedure may resulting to the
punishment. It is well settled the principle of locus delicti commissi ie. The place where the
crime has been committed as well section 177 of Cr.p.c also support the same. According to
article 34 of united nation charter, only states would be the party not an individual. In this
present case Hoko never approaches to the international court of justice.

Justice delayed justice denied, speedy trial is the basic human rights of every individual22 and in
the present case it has been followed seriously. If we analyse the facts sheet we will get that on
4th june mysterious donor had given and on within 24 hour on that means on 5 th june, Jupiter
Hestia produced before the judicial magistrate in the first province of Hallabach23 After applying

22
Hussainara khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360
23
Para 23 of the facts sheet.
the judicial mind magistrate orders to take in police custody for 15 days. As far as ground of
arrest is concerned it has also told her very clearly which includes conspiracy, waging war
against Hallabach, theft and abetment of offences including arson, and looting.

Circumstantial evidence play very vital role and the acts of Jupiter Hestia create a many
flagitious crime in the state of X and Y consequently on 1st august 2010, Hallabach federal court
passed an order in “Re: X and Y,’ directing that a special Court wiil resolve all matters from 25
April 2010 2010 to 10 may 2010. Thus it neither the violation of basic criminal justice system
(3.1) nor against the constitutional norms, therefore the investigation and trial procedure is not
contrary to law. (3.2).

(3.1) Whether there is violation of basic norm of criminal justice system in present
case?

It is humbly contended that As per the section 10 of special court Act 2010 provides that senate
may by notification designate any court as special court in order to solve the dispute of waging
war against Hallabach.24

It is important to note that section 33 of special court act 2010 of Hallabach also provides that
special court is not strictly bound to follow the provisions of Evidence Act.25

It is well settled principle that, as per the jurisdiction rule where crime happens you can file a
case.

(3.2) Whether investigation and trial prosecution is constitutional?

It is humbly submitted that, the accused had committed very flagitious crime. In the present
case all Hoko national including Jupiter Hestia as well Militia is liable for murder and criminal
conspiracy and waging war against the state. It is important to note that present case is not
followed any exception of murder. It is well settled that, absolute and unrestricted individual
rights do not and cannot exist in modern state. The constitution permits “reasonable
restriction” to be imposed on individual’s liberty in the interest of society. In the case of A.K v
State of Madras26 justice mukherjee observed that there cannot be any such thing as absolute
and uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and
disorder

24
Section 10 of special courts Act, 2010 page 11.
25
Section 33 of Special Court Act, 2010: page 11.
26
AIR 1950 SC 27.
The possession of enjoyment of all the rights are subject to such reasonable conditions as may
be deemed by the governing authority essentials to the safety, health, peace, general order and
morals of the community. It is important to note that the purpose of formation of state is to
provide safety of the people.

In Re Special Courts Bill, (1978)27 the parliament set up special courts for the speedy trial of
offences committed by the holders of high public offices during the emergency period (1975-
1977). The Apex court held that the classification made by the bill was valid and it did not
infringe Art. 14,

This is the the duty of every citizen of India: To uphold and protect the sovereignty, unity and
integrity of India, moreover the state is empowered to impose reasonable restriction and
curtail the rights in the interest of society.

In the case of State of W.B v ANWAR ALI SARKAR28 The supreme court observed that Such a law
will not be violative of Article 14 if it lays down proper guidelines for classifying ‘’offences, or
cases’, or classes of cases to be tried by special courts.

In last as per the Article 22(2) every person who is arrested and detained in custody shall be
produced before the nearest Magistrate with a period of twenty four hour of such arrest
excluding the time necessary for the journey from the place of arrest to the court of the
Magistrate.

Article 22(1) Right to consult Lawyer,

The constitutionality of section 121 of the Indian penal code cannot be questioned as it is the
fundamental duty of the state to maintain peace and public tranquility as envisaged by the
drafters of the constitution29

4. Whether the death sentence is an appropriate punishment for all militia and Hoko
nationals including Jupiter Hestia is valid?

It is well-settled that in cases pertaining to death penalty, three tests need to be satisfied prior
to the sentencing stage30. It is submitted that the conditions for awarding the death penalty

27
AIR 1979 SC 478,
28
AIR 1952 SC 75
29
Subramanian Swamy v. union of India,
30
Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Shankar Kisanrao Khade v. State Of Maharashtra, (2013) 5 SCC
546; Kansas v. Marsh, 548 U.S. 163 (2006).
have been fulfilled in the present case the principles of sentencing have not been violated in
the present case as the punishment is proportional to the mischief it seeks to cure

(4.1) The three test for awarding the death penalty have been satisfied in the present
case.

It is well-settled that the death penalty is imposed only in the most exceptional of
circumstances. Generally, courts have laid down three tests that have to be satisfied in any
given case in order to impose the death penalty. These tests are: the crime test, which deals
with aggravating circumstances; the criminal test, which pertains to mitigating circumstances;
and the rarest of the rare test . Such a judicial approach endorses the twin elements of
individualized yet principled sentencing. It is submitted that the crime test has not been
satisfied in the present case [4.1.1]. Additionally, the criminal test has not been satisfied [2.1.2]
and; finally, the present case falls into t he category of rarest of the rare cases, where the death
penalty can be awarded [4.1.3].

(4.1.1) The crime test has been satisfied in the present case.

Courts in various jurisdictions have placed a high premium on aggravating circumstances31.The

aggravating circumstances are aptly named as the ‘crime test’ since the focus is on facts and
elements of the crime committed32. Aggravating circumstance refers to “A fact or situation that
increases the degree of liability or culpability for a tortuous/criminal act33. There is no
exhaustive list of aggravating circumstances34, and judges have the discretion to identify
aggravating facts which would warrant a higher sentence35, in addition to statutory aggravating
circumstances36. Generally, the nature of the offence is considered as an aggravating factor37.
Focusing on the nature of the offence, it includes waging war against state, murder, and
criminal conspiracy. In the present case Jupiter Hestia is the mastermind of the entire crime as
the facts sheet stated that mysterious donor had given her what appeared to be the Covefefe
emerald38.

31
Zant v. Stephens, 462 U.S. 862 (1983); Gregg v. Georgia, 428 U.S. 153 (1976); Cunningham v. California, 549 U.S.
270 (2007)
32
Gurvail Singh alias Gala v. State of Punjab, (2013) 2 SCC 713; Birju v. State of M.P., (2014) 3 SCC 421; Mahesh
Dhanaji Shinde v. State of Maharashtra, (2014) 4 SCC 292; Dharam Deo Yadav v. State Of Uttar Pradesh, (2014) 5
SCC 509; Cunningham v. California, 549 U.S. 270 (2007).
33
Henry Campbell Black, BLACK’S LAW DICTIONARY, 236 (Bryan A. Garner ed., 7th edn., 1999)
34
Jagmohan Singh v. State of Uttar Pradesh, 1973 SCR (2) 541.
35
People v. Black, (2005) 35 Cal 4th 1238.
36
Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think, 98(6), COLUMBIA LAW
REVIEW, 1538, 1547 (1998).
37
262nd Report of the Law Commission of India, The Death Penalty, ¶5.2.36 (2015).
38
Para 21 of factsheets, page 5.
It is humbly contended that accused has committed flagitious crime like murder, waging war
against the state. Therefore, we submit that the crime test has been satisfied by the presence
of aggravating factors in the present case.

(4.1.2). the criminal test has been satisfied in the present case.

Mitigating circumstances are those elements of a defendant’s character, offence, background,

or any other factor that might form the basis of reducing a defendant’s sentence 39. Mitigating
factors will be deemed sufficient to grant leniency only when they can balance the aggravating
factors40. Additionally, depending on the gravity of the crimes committed, courts may find that
the weight of mitigating factors is limited/non-existent at the sentencing stage41. The principle
behind prior convictions and age being employed as mitigating factors is tolerance for human
frailty. However, whether these factors are capable of mitigating the prescribed sentence
depends on the discretion of the courts; it is not a mandatory right 42. Therefore it is humbly
submitted that as per the nature and previous acts of accused doesn’t seems that they will
change themselves thus criminal test has been satisfied in the present case.

(4.1.3). The present case falls into the category of rarest of rare cases

It is well settled that an unqualified right to life guides sentencing in death penalty cases43. The
rarest of the rare doctrine is a pragmatic compromise between abolition and the haphazard
application of death penalty44. Courts have used the effect on society as a touchstone to
identify the rarest of the rare cases45, as imposing a sentence without considering its effect on
the social order would be futile46. The rationale behind this touchstone is deterrence, which is
the most important object of capital punishment47.

39
Sec. 13-703(G), The Arizona Criminal Code, 1989
40
Purushottam Dashrath Borate v. State of Maharashtra, AIR 2015 SC 2170; Sushil Murmu v. State of Jharkhand,
(2004) 2 SCC 338; Sangeet v. State of Haryana, (2013) 2 SCC 452; Harvey Berger, S EVENTH ANNUAL REPORT AND
DIRECTORY OF ACCREDITED LABORATORIES, 687 (1984).
41
45 Prosecutor v. Tihomir Blaskic, IT-95-14-T (2000); Prosecutor v. Goran Jelisic, IT-95-10-T (1999); Notburga K.
Calvo-Goller, THE TRIAL PROCEEDINGS OF THE INTERNATIONAL CRIMINAL COURT, 109 (2006).
42
Mirko Bagaric, Abolishing Prior Criminality as Aggravating Sentencing Factor, 3(4), ORIGINAL LAW REVIEW, 111, 116
(2007).
43
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
44
David Johnson, THE NEXT FRONTIER: NATIONAL DEVELOPMENT, POLITICAL CHANGE, AND THE DEATH PENALTY IN ASIA, 438
(2009); N. Prabha Unnithan, CRIME AND JUSTICE IN INDIA, 378 (2013).
45
Jameel v. State of U.P., (2010) 12 SCC 532; Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220; State
of M.P. v. Basodi, (2009) 12 SCC 318; Mohan Anna Chavan v. State of Maharashtra, (2008) 7 SCC 561; Bantu v.
State of U.P., (2008) 11 SCC 113; State of Madhya Pradesh v. Saleem, (2005) 5 SCC 554; State of U.P. v. Sri Krishan,
(2005) 10 SCC 420; State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715.
46
Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667; Brajendrasingh v. State of Madhya Pradesh,
(2012) 4 SCC 289
47
35th Report of the Law Commission of India, CAPITAL PUNISHMENT, ¶4.3.1 (1967)
The death penalty serves as a greater deterrent than life imprisonment48. This is because the common
man understands deterrence more than the jargon of reformation49. Hence, keeping in mind the
deterrent effect on the society of Hallabach, murder, criminal conspiracy which create the terror in the
mind of entire citizen of Hallabach in the present case falls into the rarest of the rare category.

Furthermore, judges are required to survey precedent to determine whether a case falls into the rarest
of the rare category50. In the present case it is evident that the act of Hoko national including Jupiter
Hestia and militia resulted the death of various citizens of Hallabach, loss of civilian Infrastructure51 and
creates terror falls into the comparative pool of cases for which the death penalty is imposed.
Resultantly, it belongs to the rarest of the rare category. Hence, the death penalty should be imposed.

Whether the Dr. Ares was acquitted for theft of the Covefefe.

48
Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
49
Mahesh v. State of Madhya Pradesh, (1987) 3 SCC 80.
50
Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498; Mofil Khan v. Jharkhand, (2015) 1 SCC 67;
Gurvail Singh alias Gala v. State of Punjab, (2013) 2 SCC 713.
51
Para 19 of facts sheet , page no.5.
Prayer

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1. All the Hoko national including Jupiter Hestia and Militia are liable to death sentence.

2.

3.

4.

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.
prayer