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8TH FYLC – RANKA NATIONAL MOOT COURT COMPETITION, 2018

IN THE HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE APPEAL NO. ****/2018

SPECIAL LEAVE APPEAL FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

IN THE MATTERS OF

SURESH AND ORS.....................................................................................................APPELLANT

V.

STATE OF RAJASTHAN...........................................................................................RESPONDENT

MEMORIAL ON BEHALF OF APPELLANT


8TH FYLC – RANKA NATIONAL MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

INDEX OF AUTHORITIES ....................................................................................................... IV

STATEMENT OF FACTS ........................................................................................................VIII

STATEMENT OF JURISDICTION ............................................................................................XI

ISSUES RAISED.........................................................................................................................XII

SUMMARY OF ARGUMENTS...............................................................................................XIII

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

1. THAT THE JUDGEMENT OF CONVICTION PASSED BY THE LEARNED TRIAL


COURT IS UNFAIR AND NOT IN ACCORDANCE WITH LAW. .......................................1
1.1 LOWER COURT IS ERRONEOUS IN CONVICTING ACCUSED PERSONS ....1
1.1.1 That there was no hearing on the quantum of sentence.............................................2
1.1.2 That the Investigation is totally defective..................................................................3
1.1.3 The trial is vitiated due to incurable irregularity and defect in charges.....................4
1.2 ACCUSED PERSON ARE NOT GUILTY OF ALLEGED OFFENCES.................6
1.2.1 Conspiracy is not esatablished in the instant case .....................................................7
1.3 THAT CONVICTION OF VIRENDER IS ILLEGAL ...............................................8
1.3.1 That doctrine of a fresh start is violated...................................................................11
1.4 ACCUSED PERSON ARE WRONGLY CONVICTED UNDER SECTION25/27
OF THE ARMS ACT ..............................................................................................................11
1.5 THAT ABSCONDER BRIJESH CANNOT BE TRIED WITH OTHER
ACCUSED ................................................................................................................................12
2. CONVICTION OF ACCUSSED PERSONS IS UNJUSTIFIED IN LIGHT OF ORAL
AND DOCUMENTARY EVIDENCE .......................................................................................13
2.1 THAT MEDICAL EVIDENCE AND SOLE TESTIMONY OF PROSECUTRIX
IS NOT TRUSTWORTHY .....................................................................................................14
2.1.1 That prosecution fails to establish corroborration bwtween testimony of prosecutrix
and medical evidence.............................................................................................................15
2.1.2 That accused was not examined according to section 53A......................................16
2.2 THAT THE ACCUSED PERSON ARE ENTITLED TO BE GIVEN BENEFIT
OF DOUBT...............................................................................................................................16

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2.3 RECOVERY OF ARTICLES DONE BY INVESTIGATING OFFICER DOES


NOT FALL UNDER THE PURVIEW OF SECTION 27....................................................17
2.4 ELECTRONIC RECORD CANNOT BE PROVED AS GENUINE IN THE
INSTANT CASE ......................................................................................................................18
2.5 TEST IDENTIFICATION PARADE CANNOT BE WEIGHTED AS EVIDENCE
IN THE INSTANT CASE .......................................................................................................19
3. THAT LIFE IMPRISONMENT WITH FINE IMPOSED BY TRIAL COURT IS
ARBITRARY ...............................................................................................................................20
3.1 THAT REFORMATIVE AND REHABILITATIVE FACTORS MUST BE
APPLIED..................................................................................................................................21
3.1.1 Mitgating and other circumstances of the accused in the instant case should not be
undermined. ...........................................................................................................................22
3.2 GRANT OF 50 LAC COMPENSATION IS VIOLATIVE OF VICTIM
COMPENSATION SCHEME ................................................................................................23

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INDEX OF AUTHORITIES

CASES

Abbas ahmad choudhary v. State of assam, (2010)12 SCC 115. ................................................. 15


Aher Raja Kheema v. State of Saurashtra, AIR 1956 SC 217...................................................... 18
Ali Bhadur v. State, 1998 CrLJ 2871............................................................................................ 19
Allauddin Mian v State of bihar, 1989 AIR 1456........................................................................... 2
Awadesh v. State, (1998) 2 SCC 557 ........................................................................................... 15
Babu Ram v. State, (2008) 2 SCC (Cri) 727................................................................................. 17
Balbir v. State of Haryana, AIR 2000 SC 11.................................................................................. 5
Baldeo v. Deo Narain, 1954 CrLJ 180............................................................................................ 5
Bharat v. State, 2003 SCC (Cri) 738............................................................................................. 17
Birichh Bhuian v. State of Bihar, AIR 1963 SC 1120.................................................................... 6
Buta Singh v. State of Punjab, 1997 SCC (Cri) 1217................................................................... 12
Chandri Das v. State, 2001 CrLJ 2455 (Ori.................................................................................... 7
Court in its Motion v shankroo, 1983 CriLJ 63.............................................................................. 4
Dal chand v State, 1982 CrLJ 1477 ................................................................................................ 4
Darbara Singh v. State of Punjab, (2012) 10 SCC 476................................................................... 6
Datar Singh v. State, AIR 1974 SC 1193...................................................................................... 17
Dhir Singh v. State of Rajasthan, 2001 Cr LJ 235 (Raj)............................................................... 14
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr., (2007) 6 SCC 528............................ 24
Directorate of Revenue v. Mohd. Nisar Holia, (2008) 2 SCC 370............................................... 21
Hari Ram v. State of Rajasthan, (2009) 13 SCC 211...................................................................... 9
Jasbir Singh v. State of Punjab, 1998 C rLJ 2063 (SC)................................................................ 12
Joginder Nath v. Union of India, AIR 1975 SC 511..................................................................... 11
K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510................................................... 24
K.S. Narayana v. S. Gopinathan, 1982 Cr LJ 1611 (Mad .............................................................. 7
Kajod vs The State Of Rajasthan, 1976 WLN 723......................................................................... 3
Kalluri Vema Reddi v. Reddi Gangi Reddi, 1958 CrLJ 1118 ........................................................ 5
Kamalakar Nandram Bhavsar v. State of Maharashtra, (2004) 10 SCC 192. ................................ 3
Kanan v. State of Kerala, 1979 CrLJ 919. .................................................................................... 19
Lal Singh v. State, 2001 SCC (Cri) 472........................................................................................ 17
M. Nagaraj v. Union of India,: AIR 2007 SC 71.......................................................................... 11
Mahendra Mudali v. State of Orissa, 1990 Cr LJ 27 (Ori), .......................................................... 14
Mangturam Agarwal v. State, 1994 CrLJ 1912 (Ori). .................................................................... 7
Mannalal Khatic v. State, AIR 1987 Cal 478 ................................................................................. 4
Manoj Kumar Achhelal Brahman v. State of Gujrat, (1998) 2 SCC 354 .................................... 12
Matru v. Uttar Pradesh, AIR 1971 SC 1050 ................................................................................. 13
Mohanan Nair v. State of Kerala,1989 CrLJ 2106 ....................................................................... 20

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Narotam Singh v. the State of Punjab, 1978 SC 1542.................................................................. 22


Noor Aga v. State, (2010) 3 SCC (Cri) 748.................................................................................. 17
Palaniappa Gounder v. State of Tamil Nadu AIR (1977) SC 1323.............................................. 24
Parag Bhati (juvenile and others) v. State of Uttar Pradesh and another, (2016) 12 SCC 744 ...... 9
Phul Singh v. State of Haryana, AIR 1980 SC 249 ...................................................................... 23
PK Narayanan v. State of Kerala, (1995) 1 SCC 142..................................................................... 8
Poshaki v. State, AIR 1953 ALL 526 ........................................................................................... 19
Rachpal v State, (2002) 6 SCC 462. ............................................................................................. 24
Radhu v. State, 2007 Cri.L.J. 4704............................................................................................... 15
Raghunath v. State, 2003 SCC (Cri) 326...................................................................................... 17
Raju v. State of Madhya Pradesh, (2008) 15 SCC 133................................................................. 16
Ram Babu v. State of UP, AIR 2010 SC 2143 ............................................................................. 19
Ram Narain v. the State of Punjab, AIR 1975 SC 1727.............................................................. 14
Rang Bahadur Singh V. State of U.P., AIR 2000 SC 1209 .......................................................... 17
Salil Bali v. Union of India, (2013) 7 SCC 705............................................................................ 11
Sampad v. State, 2001 Cr LJ 793 (Ori)........................................................................................... 7
Santa Singh v State of Punjab, 1976 CrLJ 1875............................................................................. 3
Santosh Kumar Singh v. State of Madhya Pradesh, AIR 2014 SC 2745 .................................... 23
Sat Paul v. Delhi Administration. AIR 1976 SC 303 ................................................................... 13
Shafi v. State, AIR 1953 All 502 .................................................................................................. 23
Shobit Chamar v State of Bihar,AIR 1998 SC 1693 ...................................................................... 3
Sk. Yusuf v. West Bengal, AIR 2011 SC 2283 ............................................................................ 13
Soman v. State of Kerala, (2013) 11 S.C.C. 382 .......................................................................... 23
State (NCTof Delhi) v Navjot Sandhu, AIR 2005 SC 3820........................................................... 8
State of Haryana v. Gaghseer Singh, AIR 2003 SC 4377 ............................................................ 18
State of Kerela v Salini, 2010 CrLJ 3736 (FB)............................................................................... 3
State of Punjab v. Gurnam Singh, AIR 1984 SC 1799 (1) ........................................................... 12
State of Tamil Nadu v. Nalini, (1999) 5 SCC 253.......................................................................... 8
State v. Netrapal, (2007) 4 SCC 45............................................................................................... 12
Subhash v. State, AIR 1987 SC 1222 ........................................................................................... 19
Subramanian Swamy v. CBI, (2014) 8 SCC 682.......................................................................... 11
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675............................................................. 22
Suresh Govinda Nagdeve v. State, 2008 CrLJ 2943 (Bom). .......................................................... 7
The State of Bihar v. Hemlal Sah, 2014 CriLJ 1767 .................................................................... 23
Ujjagar Singh v. State of Punjab, 2008 Cr LJ 808 (SC). ................................................................ 7
Union of India vs. Prakash P. Hinduja, AIR 2003 SC 2612........................................................... 5
Vinay Tyagi Vs. Irshad Ali Alias Deepak and others, (2013) 5 SCC 762. .................................... 3
Vinod Kumar Shukla v. State of M.P., 1999 Cr LJ 4507 (MP).................................................... 12
Wilayat Khan v. State, AIR 1953 Cr LJ 662 ................................................................................ 17

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BOOKS AND ARTICLES

1 SUBODH CHANDRA SARKAR, THE LAW OF CRIMINAL PROCEDURE, AS AMENDED UP TO DATE


(1966)........................................................................................................................................ 15
ANDREW ASHWORTH, "PRINCIPLES OF CRIMINAL LAW" 5th edn. (Oxford University Press, 2006)
................................................................................................................................................... 35
D.S. FARERI, L.N. MARTIN & M.R. DELGADO, REWARD-RELATED PROCESSING IN THE HUMAN
BRAIN: DEVELOPMENTAL CONSIDERATIONS, 20 DEVELOPMENT AND PSYCHOPATHOLOGY 1191
(2008)........................................................................................................................................ 20
Dhvani Mehta, An Iron First in a Velvet Glove: Draft Juvenile Justice Bill, 49 ECONOMIC AND
POLITICAL WEEKLY 13 (2014). ................................................................................................. 21
G. C. Field, The Morality of Punishment. By A. C. EwingM.A., D.Phil. With a Foreword by DrW.
D. Ross, (London: Kegan Paul, Trench, Trübner & Co., Ltd.1929. Pp. xiv 233. Price 10s. 6d.),
5 PHILOSOPHY, 288–289 (1930)................................................................................................ 36
Gardner, Margo & Steinberg, Laurence, Peer Influence on Risk Taking, Risk Preference, and
Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41
DEVELOPMENTAL PSYCHOLOGY 625 (2005) ............................................................................. 20
Gauri Pillai & Shrikrishna Upadhya, Juvenile Maturity and Henious Crimes: A Re-Look At
Juvenile Justice Policy in India, 10 NUJS L. REV. 60, 49-82 (2017)........................................ 21
H.L.A HART, in Radzinomics and Wolfgang(eds.) 2 CRIME AND JUSTICE, 1971 – 1972. .......... 35
H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAY IN THE PHILOSOPHY OF LAW (2008). .. 33
Human Rights Watch, The Difference between Youth and Adults, (2005), available at
https://www.hrw.org/reports/2005/us1005/6.htm..................................................................... 20
J. M FINNIS, Natural Law: the Classical Tradition in THE OXFORD HANDBOOK OF
JURISPRUEDENCE AND PHILOSOPHY (Jules L. Et. al. Ed.) (2004). ............................................. 33
James G Scott et. al. Childhood Mental and Development Disorders, in 4 MENTAL,
NEUROLOGICAL, AND SUBSTANCE USE DISORDERS: DISEASE CONTROL PRIORITIES, THIRD
EDITION. (ed. by V. Patel et. al.) (2016). .................................................................................. 22
Kenworthy Bilz, "What's Wrong With Harmless Theories of Punishment" 79 CHICAGO-KENT
LAW REVIEW, 1215 (2004). ...................................................................................................... 35
Penal Reform International, When the Crime Overshadows the Child: International Standards
and National Practice in Reconciling Serious Crime and Childhood, (2014), available at..... 21
RICHARD J. BONNIE & ELIZABETH S. SCOTT, THE TEENAGE BRAIN: ADOLESCENT BRAIN
RESEARCH AND THE LAW, 22(2) CURRENT DIRECTIONS IN PSYCHOLOGICAL SCIENCE 161 (2013)
................................................................................................................................................... 20
Russell Christopher, Deterring Retributivism: The Injustice of ‘Just’ Punishment, 96 NW. U. L.
REV. 843 (2002)........................................................................................................................ 35
Steinberg, L. & Scott, Elizabeth, Less Guilty by Reason of Adolescence: Developmental
Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AMERICAN
PSYCHOLOGIST 1009 (2003)...................................................................................................... 20

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Swagata Raha & Arlene Manoharan, Juvenile Justice Amendment: Adolescents are not Grown-
ups, May 9, 2015, available at http://blogs.economictimes.indiatimes.com/et-commen-
tary/juvenile-justice-amendment-adolescents-are-not-grown-ups/........................................... 21
V. R. Krishna Iyer, Jeremy Bentham, 'An Introduction to the Principles of Morals and
Legislation', (J. H. Burns & H. L. A. Hart eds., 1970) P.S.A. PILLAI, CRIMINAL LAW, 9th Ed.
286 (2000)................................................................................................................................. 35

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SYNOPSIS OF FACTS

1. Miss Gyanwati, aged 20 years, was studying in the Commerce College in Jaipur, B.com
(Final). A close friend of hers, Mr. Suresh, aged 22 years, was studying in the same College,
pursuing M.com. In light of her narrative, on 31.12.2017, after New Year’s Party, three
students intercepted Ms. Gyanwati, namely Suresh, Mahesh and Dinesh of the same college.
The assailants knocked down her scooty, kidnapped her on gun point and took her in a Honda
City, bearing the number “HR 16F 7337” to a place in Jaipur. They went inside a room where
two of the students were waiting already. The victim was taken there and after that all of them
drank Scotch Whisky and stripped the victim naked. She resisted and cried, but she was raped
by five people including Virender, who is a minor.
2. On 01.01.2018 at about 4:00 pm Suresh came with Brijesh who had a good personality. Suresh
made an offer to him for intercourse and he accepted, and after that they raped the victim one
after the other. Resultantly, her uterus was ruptured, she turned unconscious, and ended up with
bruises on the breast and other parts of the body.
3. On 02.01.2018, Mahesh contacted the father of the victim, Manmohan on phone and informed
him that her daughter had been kidnapped and raped. They also added that if he wants his
daughter back, then he will have to come with the specified amount at specified place with 5
lacs else she will be killed and thrown. Her father conceded and on 03.01.2018 he was
contacted again on phone by Brijesh, and was asked to come at 11:00 am at hill side with money
and no arms. Her father reached the same place and was received by Dinesh, was
physically searched by him and after he had handed over the bag and his phone, he was taken
to the place where his daughter was being held. Her father took her home and warned that her
that her videos will be uploaded on the internet if they decided to make a report but they took
the decision to report to the police nevertheless, and see that the culprits are caught
and prosecuted.
4. FIR No. 10 dated 03.01.2018 for the offences under section 376,364, 364A/34 IPC r/w
Sections
25/27 of the Arms Act was lodged at Chaksu Police Station and the statements of the victims
was recorded u/s 161 Cr.P.C. The statements of the victim and her father were recorded with
the facts and events that have been stated above. Shri Sukhbir Singh was appointed as the

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investigation officer. While pursuing the investigation, they visited the place where the
incident had been allegedly taken place and found/recovered the following: -
(i) Honda City registered in the name of Villas Chand, father of Brijesh.
(ii) Mobiles of all the accused
(iii) Iron chains, black rope, whisky bottles, cash of Rs 4,80,000/-
(iv) Gun with 20 cartridges
(v) Evidences in support of the victim and her statement
(vi) Matriculation certificate of Virender with the date of birth. The investigating officer
arrested all the accused except Brijesh, who was declared as proclaimed offender. The
arrested accused identified the victim, the recovered above stated articles but denied the
charges.
5. On 04.01.2018 victim was examined by the doctor and the medical report revealed rape and
bodily injury and that the victim would become, from then on, an infertile woman. On
identification parade, the accused were identified by the victim and her father. After
the investigation drill, charge sheet under sections 376, 364A, 465, 471, 120B IPC and Sections
25/27 of the Arms Act was made against all of the accused. The charges were framed against
the accused under the above sections of law to which they pleaded to not be guilty. The accused
person in the course of their statements under section 313 Cr. P.C. stood by their denial of
charges. Prosecution examined 27 witnesses. And 14 witnesses were also examined in defence.
6. Judgement of trial court: The trial court convicted the accused and the co-accused under the
above-mentioned sections of law. All the accused were sentenced to rigorous imprisonment for
life time and were fined with Rs. 10,000/- each. All the accused were directed to
compensate the victim with an amount of Rs.50 lacs jointly and severally and the state
government was also directed to pay a sum of Rs. 10 lacs to the victim.
7. Verdict of high court: The PWs 24, 25, 26 and 27 have endeavoured to prove by giving the
printed copy of the call details and also has adduced a certificate relatable thereto as required
u/s 65B (4) of the Evidence Act. The verdict of the High Court affirmed what had
been previously upheld by the Trial Court in its verdict, and refused to put aside the verdict of
the Trial Court on acount of the verdict suffering from an infirmity of law, as had been
contended
by the accused.

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8. All the accused persons have filed appeals against the affirmation by the appellate court. they
have challenged constitutional validity of life imprisonment and draconian levy of fine and
compensation. The Hon’ble Supreme Court has admitted appeals. Notices have been issued to
the victims, her father, central and state government and all states as to the appeal an in regard
to constitutional validity of the provisions.

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STATEMENT OF JURISDICTION

The Appellant has approached the Honourable Supreme Court of India through SLP under article
136 of the Constitution of India. The matter has been listed for hearing. Article 136 of
the
Constitution of India read here as under:

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ISSUES RAISED

1. Whether the conviction of accused persons under the alleged offenses is unfair and
not in accordance with the law?

2. Whether the conviction of accused persons is justified on the basis of oral and documentary
evidence?

3. Whether life imprisonment with fine imposed by the trial court is constitutionally valid?

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SUMMARY OF ARGUMENTS

I. THAT THE JUDGEMENT OF CONVICTION PASSED BY THE LEARNED TRIAL


COURT IS UNFAIR AND NOT IN ACCORDANCE WITH LAW.

The lower court is erroneous in convicting the accused persons as there was no hearing on
quantum of sentence and investigation is totally sub-standard. The trial of the accused person
is not justifiable due to the incurable irregularities and defects in charges. The constituents of
conspiracy is not established in the instant case. Conviction of juvenile Virender is not
in accordence with law. Accused persons are wrongly convicted under arms act and Brijesh is
also convicted ultra-vires to the procedure given in CrPC.

II. CONVICTION OF ACCUSED PERSONS IS UNJUSTIFIED IN LIGHT OF ORAL


AND DOCUMENTARY EVIDENCE

Trial court has erred in placing reliance on medical evidence and and sole testimony
of prosecutrix which are full of discripancies. The prsocecution fails to establish corroboration
between the testimony of prosecutrix and medical evidence and failed to prove the case beyond
reasonable doubt. The accused was not examined according to section 53A. Recovery
of articles and electronic records also seems to be untrustworthy. The test identification parade
is also not in accordence with the procedure prescribed in the criminal proceduere code.

III. THAT LIFE IMPRISONMENT IMPOSED WITH FINE IMPOSED BY TRIAL COURT
IS ARBITRARTY.

The reformative and rehabilitative factors must be applied seeing the mitigating circumstances
of the accused persons. The compensation of 50 lac is violative to state and central victim
compensation scheme

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ARGUMENTS ADVANCED

1.THAT THE JUDGEMENT OF CONVICTION PASSED BY THE LEARNED


TRIAL
COURT IS UNFAIR AND NOT IN ACCORDANCE WITH LAW.

1. It is humbly submitted before the honorable court that both the lower courts have been
erroneous in convicting the accused persons:
a) Firstly the charges framed against the accused have been improper.
b) Secondly, both the lower courts have been erroneous to mention the offense under the
code under which the conviction of the accused has taken place.
c) Thirdly the charges of kidnapping for ransom is not established by the prosecution in the
absence of any material on record.
d) Fourthly, the complainant has not specified the name of the accused who has the
possession of the gun which renders the prosecution story doubtful.
e) Fifthly, the medical report is incomplete and several pre-requisite tests of the accused have
not been conducted.
f) Sixthly, the charges of the forgery are not specified, and nor are they proper.
g) Seventhly, the factum of each discovery is not based on the discloser of accused persons,
so it is not relevant under section 27 of IEA. In the absence of all the aforesaid, it would
not be safe to convict the accused persons.

1.1 LOWER COURT IS ERRONEOUS IN CONVICTING ACCUSED PERSONS.

2. In the instant case the trial court erroneously convicted the accused persons by not
appreciating the evidence properly and in the instant case, the charges alleged on an accused
person are not specific and in accordance with law. That in the instant case prosecutrix knows the
name of accused persons but still, she did not reveal a specific description as well as a chart as to
the role of the accused persons in the commission of offense separately which renders the
prosecution version illusive.
3. As per the allegations of Prosecution, the victim was firstly tied with black rope, secondly
by iron chains and thirdly raped by the accused persons which made her unconscious and
consequently, her Uterus was ruptured. In this whole scene, she did not get any severe injury on

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private parts and other parts of the body. So in the instant case, this whole story of rape
and abduction is fake and fabricated and seems to be untrustworthy and unreal.
4.In the present matter the case under section 376, 364A, 465, 468, 471, 120B IPC and section
25/27 Arms act was laid against the accused persons. Later on, an investigation was carried out
the evidence was collected and accused were arrested. The learned trial court, as well as
the learned High Court, has not mentioned the offenses under which the conviction of the accused
has taken place. Hence the conviction of the accused is illegal.
5.354 (3) of the code of criminal procedure states about the Language and contents of judgment
which is as follows;
“When the conviction is for an offense punishable with death or, in the alternative,
with imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence.”
6.The impugned judgment is not a judgment in terms of sec 354 and sec 353 of the code since the
proper reason for conviction and sentence were not provided to the accused along with the order
of conviction and sentence. The accused persons have not been sentenced to a different period of
imprisonment and no reason have been given for the same. Further, the court didn’t communicate
the section of IPC under which they were convicted and sentenced. In the absence of
entire judgment in terms of the above-mentioned provisions, the conviction, sentence and
draconian levy of fine and compensation imposed on the accused are vague and unbelievable.

1.1.1 That there was no hearing on the quantum of sentence.

7. The counsel for the appellant contended that in this case, the appellant was not heard
before the sentence of the death penalty was imposed on him. It is urged that under Section 235(2)
of Cr.P.C. the Sessions Judge should have heard the accused on the question of sentence.
8. Sec. 235 (2) is mandatory and it must be complied with in true spirit. Non-compliance of
the mandatory provision is not a mere irregularity curable under section 465 of the Cr.P.C. This
view has also been taken in Allauddin Mian v State of bihar.1
9. In a similar case, the death sentence was given without hearing the accused on the question of
sentence. “But if it is found that when the full opportunity was given to the accused, no exception

1
Allauddin Mian v State of bihar, 1989 AIR 1456.

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can be taken but they did not avail themselves of that opportunity. In the circumstance, if there
was non-compliance of sec. 235(2), it would not vitiate the trial.”2 “A remand order for non-
compliance of sec. 235 (2) should always be avoided as far as possible in the interest of justice. A
remand order under such circumstances is not always mandatory.”3
10. Hearing the accused on the question of the sentence before awarding of the sentence as
mandated under Sec. 235 (2) of the CrPC in the case of sessions trials, is a valuable indefeasible
right of the accused and the court cannot fail in its duty in relegating that hearing to any other
authority4. Hearing of the accused before passing sentence is mandatory and the prayer of the
accused to lead evidence bearing on the question of a sentence cannot be rejected.5
11. The Supreme Court has observed in Santa Singh v State that the sessions judge delivering
the judgment of conviction should hear the accused on the question of sentence and give him an
opportunity to lead evidence which may also be rebutted by the prosecution. If the sessions judge
does not, the case should be remanded for hearing on the question of sentence only. 6

1.1.2 That the Investigation is totally defective.

12. It is humbly submitted that the prosecution has failed to fulfill the criteria of ‘fair an proper
investigation’ as there are vital discrepancies in the investigation which cannot be discarded.
Seeing the good background of all the accused persons, the prosecution failed to prove the motive
behind the abduction and demanding only 5 lac rupees to the victim.
13. The Hon'ble Apex Court held that fundamental principle of our criminal jurisprudence
which is that it is the right of a suspect or an accused to have a just and fair investigation and trial.
This principle flows from the constitutional mandate contained in Articles 21 and 22 of
the Constitution of India. Where the investigation unfair and tainted, the courts would set aside
such an investigation and direct de novo investigation and, if necessary, even by another
independent investigating agency.7
14. The Counsel humbly submits that the investigation done by the investigating agency is
untrustworthy and full of loopholes and surmises as discussed below.

2
Shobit Chamar v State of Bihar,AIR 1998 SC 1693.
3
Kamalakar Nandram Bhavsar v. State of Maharashtra, (2004) 10 SCC 192.
4
State of Kerela v Salini, 2010 CrLJ 3736 (FB).
5
Kajod vs The State Of Rajasthan, 1976 WLN 723.
6
Santa Singh v State of Punjab, 1976 CrLJ 1875.
7
Vinay Tyagi Vs. Irshad Ali Alias Deepak and others, (2013) 5 SCC 762.

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15. It is humbly submitted before the honorable bench that the Scooty which has been knocked
by the accused persons was never investigated nor was it examined for finding the truth
of prosecution version. Further, there was no inquiry regarding the chassis number and
engine number of the Honda City car which creates a doubt in the prosecution story and benefit
of the doubt must be given to the accused person. Mrs. Gyanwati the victim in the instant case
was outside her home on the night of 31st December 2017 but her parents did not file a missing
report for her as she was being kidnapped by the accused persons. This kind of unbelievable
behavior of her father also creates doubts as to the credibility of the story of the prosecution.
16. Gun with 20 cartridges found or recovered by police investigating officer was not sent to
ballistic experts for checking whether these had been used in the offense or not.
17. The victim has categorically stated in examination by police investigation officer recorded
under section 161 of CRPC that she was raped and kept captive in the said place but when she
was cross-examined then her elaborate testimony has only projected stagewise development
following her abduction till her restage. She did not mention anywhere about rape in her cross-
examination and this also creates a doubt on the prosecution story.
18. Thus prosecution has failed to prove the case beyond reasonable doubt and benefit of the
doubt in light of the above circumstances and facts must be given to the accused person. Also, at
the time of trial 14 defense witness are examined but their testimony is not revealed which hinders
the objective of the fair trial.

1.1.3 The trial is vitiated due to incurable irregularity and defect in charges

19. Charges are intended to inform the accused of the crimes charged agasint him8, But a
statement of charge as we see is full of legal terminology. It does not describe the act but just lay
down sections of IPC which are much complex to understand by a president person. In this regard
court in Motion v Shankroo9 said forming of such a charge amount to a breach of procedure.also
in Dal Chand v state10 the court said that any defect in charge vitiates the conviction.
20. It is humbly submitted before the honorable bench that accused person cannot be tried
together as Brijesh is absconder and Virender is minor, so they must be tried separately as per
embargo of section 299 Cr.P.C. and section 23 of JJ act.

8
Mannalal Khatic v. State, AIR 1987 Cal 478.
9
Court in its Motion v shankroo, 1983 Cr.L.J. 63.
10
Dal chand v State, 1982 CrLJ 1477.

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21. That the trial of the accused Brijesh and Virender is vitiated under section 461 of CrPC.
Because the magistrate have not been empowered by law to try any such offender who
is a absconder because it is clearly stated in section 273 of CrPC that the evidence to be taken in
the presence of the accused, and the magistrate can only under section 299 CrPC record
the depositions of witnesses produced on behalf of the prosecution and any such deposition may,
on the arrest of such person, be given in evidence against him on the inquiry or trial. Therefore
the proceeding of absconder Brijesh is void under section 461 of CrPC. However, according to
the section 82(4) of CrPC, the court can not declare Brijesh a proclaimed offender on the said
charges which are laid down against him.
22. That the JJ act 2015 provides under section 23 that there shall be no joint proceedings of a
child alleged with conflict with the law, with a person who is not a child. Under this case, the
court convicted the juvenile with other offenders in the joint proceeding. Therefore the trial of the
juvenile Virendra is vitiated according to the section 461 of CrPC which is incurable,
such proceedings are void.
23. “As a general principle, it can be stated that error, illegality or defect in the investigation
cannot have any impact unless miscarriage of justice is brought about or serious prejudice is
caused to the accused.”11The apex court held that where accused were charged with same and
different offenses which created a confusion in trial leading to the trial be incalculable.12That in
the instant case the accused persons are wrongly convicted because of trial court erroneous
judgment.
24. Judgment shall contain the points for determination and The decision thereon (finding
should be recorded on all the charges) and 3 reasons for the decision. It must clear that
the evidence has been considered.13 ‘Compliance with the third requirement should not be merely
formal but substantial. When the reasons are not supported by evidence, they are reasons against
the decisions and not for it.”14 It is humbly submitted that in the instant case the high court, as
well as a trial court, have not mentioned the specific reasons behind judgment which cannot be
ignored.

11
Union of India vs. Prakash P. Hinduja, AIR 2003 SC 2612.
12
Balbir v. State of Haryana, AIR 2000 SC 11.
13
Kalluri Vema Reddi v. Reddi Gangi Reddi, 1958 CrLJ 1118
14
Baldeo v. Deo Narain, 1954 CrLJ 180

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25. The defect in framing of the charges must be so serious that it cannot be covered under S.
464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be
invalid only on the ground that no charge was framed, or that there was some irregularity or
omission or misjoinder of charges, unless the court comes to the conclusion that there was also,
as a consequence, a failure of justice.15
26. The Privy Council once held that misjoinder of a number of charges contrary to
the
provisions of the law was an illegality and not an irregularity curable by S. 537 (see now Ss. 464
and 465).16 As of now, the Sections 219-223 of Cr.P.C. permit the joinder of such charges under
specified conditions for the purposes of a single trial. Such a joinder may be of charges in respect
of different offenses committed by a single person or several persons. If the joinder of the charges
was contrary to the provisions of the code it would be misjoinder of charges.17
27. It is humbly submitted before the honorable bench that in the instant case there are so
many irregularities which cannot be taken lightly:
a) That trial of Virender must be done By Juvenile Justice Board and the trial court has no
jurisdiction to try the case of Virender. This is an incurable irregularity under section 461
of CrPC.
b) The trial of Absconder Is also irregular because of the embargo of section 299 of
Cr.P.C.. c) There is misjoinder of various charges.
d) That there is no hearing on the quantum of the sentence according to section 235(2) of
Cr.P.C..
e) That there was no proper reasoning behind giving life imprisonment.

1.2 ACCUSED PERSON ARE NOT GUILTY OF ALLEGED OFFENCES

28. There was charge of gang rape against the accused persons who were alleged to
have forcibly lifted the victim to nearby bank of river on point of knife and by threating to kill her
son committed sexual intercourse with her but no sign of forcible intercourse or mark of violence
was found either on spot or during medical examination of prosecutrix. It was held that in the
absence
of proper proof they could not be convicted u/s. 376 (2) (g) of IPC, as it existed before
the

15
Darbara Singh v. State of Punjab, (2012) 10 SCC 476.
16
1 SUBODH CHANDRA SARKAR, THE LAW OF CRIMINAL PROCEDURE, AS AMENDED UP TO DATE (1966).
17
Birichh Bhuian v. State of Bihar, AIR 1963 SC 1120.
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amendment enforced in 2013.18 The accused in another case were acquitted as surrounding
circumstances and evidence was not lending corroborative support to give credibility to an
allegation of gang rape.19
29. There were no tell-tale injuries on the body of the prosecutrix to show that intercourse was
against her will or consent and capacity of the accused to perform sexual intercourse was not
examined. It was held that the accused could not be convicted for the offense of rape. 20
The allegation was that the prosecutrix was subjected to rape by three accused at night in the field
but no injury on the private part of the back was found and the doctor could not confirm the theory
of sexual intercourse. Similarly, no corresponding injury was there on private parts or body of the
accused. He was held entitled to benefit of the doubt.21
30. No injury mark on the person of the victim was pointed but by the doctor and FIR did not
explain that injuries on her private part were the result of the forcible sexual assault. It was held
that the prosecution story was not true and accused were entitled to benefit of the doubt. Hence
conviction was set aside.22

1.2.1 Conspiracy is not established in the instant case

31. It is humbly submitted before the honorable bench that all the charges which are alleged on
accused persons seem to be different and perpetrated to be done by different accused which has
no correlation between the offenses, and there is no prior agreement and meeting of mind between
the accused persons to commit the alleged offenses. “Merely leveling a charge of conspiracy,
without mentioning how, where, when, and which of the conspirators hatched the conspiracy, and
for what purpose, or circumstances warranting an inference of the existence of a conspiracy, is
not enough to bring persons to face the trial in a criminal court. A complaint should make out a
prima facie case against the accused persons. One cannot have the construction of a fine
superstructure without a foundation.”23In the instant case, there is no prior meeting of mind and
expressed or implied agreement between the accused persons, hence they
cannot be made liable for the offense of criminal conspiracy.

18
Sampad v. State, 2001 Cr LJ 793 (Ori).
19
Chandri Das v. State, 2001 CrLJ 2455 (Ori).
20
Ujjagar Singh v. State of Punjab, 2008 Cr LJ 808 (SC).
21
Suresh Govinda Nagdeve v. State, 2008 CrLJ 2943 (Bom).
22
Mangturam Agarwal v. State, 1994 CrLJ 1912 (Ori).
23
K.S. Narayana v. S. Gopinathan, 1982 Cr LJ 1611 (Mad).

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32. In State (NCT of Delhi) v. Navjot Sandhu24, The Supreme Court held Non-participant
conspirators cannot be found guilty of offenses committed by other conspirators. The principle of
agency cannot be made applicable to find conspirators guilty of substantive offenses not
committed by them. It is humbly submitted before the honorable bench that Accused Virender,
Gyanesh, and Brijesh are not at all participants in the offense of the abduction of victim gyanwati
and possession of a gun unlawfully under Sections 25\27 of the Arms Act. Further accused
Gyanesh, Suresh and Virender never participated in the ransom demand calls. In the light
of above-stated facts, the accused person cannot be liable for criminal conspiracy.
33. A few bits here and a few bits there on which the prosecution relies cannot be held to be
adequate for connecting the accused with the commission of the crime of criminal conspiracy.
“Such an inference must be premised on sound facts that eloquently exhibit the intended common
design and its execution.”25 In the instant case, there seems to brokage in the chain of
the commission of offenses and hence it cannot be established that the offenses are the continuing
one.
34. “A mere suspicion, in the absence of direct or indirect evidence establishing a prior
meeting of mind, cannot be a ground for a conviction for the offense of criminal conspiracy.”26
The counsel humbly submits that prosecution fails to prove any primafacie evidence in the case
which establishes the common object or any agreement between the accused to commit the crime
prosecution has to produce evidence not only to show that each of the accused has knowledge of
the object of the conspiracy but also the agreement. “In the charge of conspiracy, the court has to
guard itself against the danger of unfairness to the accused.”27

1.3 THAT CONVICTION OF VIRENDER IS ILLEGAL

35. It is humbly submitted before the Hon’ble Court that the matriculation certificate is
a conclusive proof which is recovered by the investigation officer during an investigation.
According to the facts of the case, his date of birth is 15.01.2001 and the offense was committed
during midnight of 31 December 2017. So according to the facts of the case, he is seventeen years
old. The age of child in conflict with the law as per section 15(1) of JJ Act, 2015 the board shall

24
State (NCTof Delhi) v Navjot Sandhu, AIR 2005 SC 3820.
25
State of Tamil Nadu v. Nalini, (1999) 5 SCC 253.
26
PK Narayanan v. State of Kerala, (1995) 1 SCC 142.
27
Supra note 31.

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conduct a preliminary assessment with regard to his mental and physical capacity to commit such
offense then the board may order transfer of the trial of the case to the children’s court having
jurisdiction to try such offences under section 18(3) of the said Act but no joint proceedings can
be done with a person who is not child as per section 23 of the said Act and no child in conflict
with law shall be sentenced to life imprisonment, either under provision of the Act or
under provision of the IPC or under any other law for time being in force. Therefore on the basis
of authority cited and provision of JJ Act Conviction and trial of Juvenile under said alleged
offenses is unfair, arbitrary and illegal.
36. It is humbly submitted that the accused Virender is minor according to the proof
of matriculation certificate and hence must be tried separately in the instant case. It was reiterated
that it is a settled position of law that “if the matriculation or equivalent certificates are available
and there is no other material to prove the correctness of date of birth, the date of birth mentioned
in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the
accused.”28
37. In Hari Ram v. State of Rajasthan29 while examining the scope of Section 7-A of the Act,
this Court held that “the claim of juvenility can be raised before any court at any stage and such
claim was required to be determined in terms of the provisions contained in the 2000 Act and the
Rules framed thereunder, even if the juvenile had ceased to be soon or before the date
of commencement of the Act.” It was held that a juvenile, who had not completed 18 years of age
on the date of commission of the offense, was also entitled to the benefits of the Juvenile Justice
Act,
2000 as the provisions of Section 2(k) had always been in existence even during the operation of
the 1986 Act. That although the appellant Virender has not objected the discard of matriculation
certification by the trial court this does not mean that he cannot take a plea of juvenility at the
appellate stage.
38. In the instant case, there was no preliminary assessment for the psychological and mental
check-up of Virender whether he is mature enough to understand the nature of the offense.
According to Juvenile justice care and protection act 2015. Virender who is minor in the instant
case is not tried according to the above-mentioned provision of the act. According to the embargo

28
Parag Bhati (juvenile and others) v. State of Uttar Pradesh and another, (2016) 12 SCC 744.
29
Hari Ram v. State of Rajasthan, (2009) 13 SCC 211.

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of section 2130 of JJ act 2015, no child can be punished for imprisonment for life and
death punishment who is in conflict with the law. The 2015 Act legitimizes the transfer of
juveniles above the age of sixteen to adult courts, if the Juvenile Justice Board (‘Board’) concludes
that the level of maturity of the juvenile indicates that he committed the heinous offense as an
adult and not as a child.31It is humbly submitted that the minor Virender is not mature enough to
analyze the long term consequences of the act.
39. “Due to the lack of development of their psychosocial maturity, children are unable to apply
their cognitive skills effectively and are often swayed by emotional and social variables.”32
As a direct consequence, adolescents, even at the age of sixteen are more prone to peer influence
than adults.33 They are also less likely to carefully evaluate future outcomes before acting and
thereby are likely to overstate rewards without fully analyzing the risks.34 It is humbly submitted
that minor Virender has been totally influenced by his peers and he is not at all capable
to understand the consequences of such actions.
40. Further, it is also accepted that there exists no scientifically accurate method to determine
the maturity of an individual.35 “Such determination, it is stated, would exceed the “limits of
science”, the results being fraught with error and arbitrariness.”36 Since such a case by case
analysis of maturity to determine culpability is scientifically impossible, a presumption of
maturity exists beyond the age of eighteen. the constitutional guarantee of presumption of
innocence.37 Conducting the trial of a juvenile as an adult in a criminal court violates the
juvenile’s right to a fair trial.38

30
Section 21 of Juvenile Justice (Care & Protection Act) 20.
31
Id., §19.
32
Steinberg, L. & Scott, Elizabeth, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished
Responsibility, and the Juvenile Death Penalty, 58 AMERICAN PSYCHOLOGIST 1009 (2003).
33
Id.; see also Gardner, Margo & Steinberg, Laurence, Peer Influence on Risk Taking, Risk Preference, and Risky
Decision Making in Adolescence and Adulthood: An Experimental Study, 41 DEVELOPMENTAL PSYCHOLOGY 625
(2005).
34
D.S. FARERI, L.N. MARTIN & M.R. DELGADO, REWARD-RELATED PROCESSING IN THE HUMAN BRAIN:
DEVELOPMENTAL CONSIDERATIONS, 20 DEVELOPMENT AND PSYCHOPATHOLOGY 1191 (2008).
35
RICHARD J. BONNIE & ELIZABETH S. SCOTT, THE TEENAGE BRAIN: ADOLESCENT BRAIN RESEARCH AND THE LAW,
22(2) CURRENT DIRECTIONS IN PSYCHOLOGICAL SCIENCE 161 (2013).
36
Id.
37
Id.; Dhvani Mehta, An Iron First in a Velvet Glove: Draft Juvenile Justice Bill, 49 ECONOMIC AND POLITICAL
WEEKLY 13 (2014).
38
Penal Reform International, When the Crime Overshadows the Child: International Standards and National
Practice in Reconciling Serious Crime and Childhood, (2014), available at
http:// www.oijj.org/sites/default/files/when-the-crime-overshadows-the-child.pdf.

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1.3.1 That doctrine of a fresh start is violated

41. “The principle of fresh start seeks to liberate juvenile offenders from the stain of a criminal
conviction and offers them a second chance, a fresh start which is free of the social and economic
disabilities which often accompany a conviction.”39
42. In fact, the United Nations Child Rights Committee (‘Child Rights Committee’) has
unequivocally stated that treatment of children as adults is a violation of the right against
discrimination embodied in the CRC. On this basis, the Child Rights Committee has issued
notices to more than fifty countries, mandating that all persons below the age of eighteen be dealt
with solely within the juvenile system.40 Similarly, transferring a child to an adult court, such as
the Sessions Court, would also be against the guarantee of Article 14 of the Constitution which
deems that only like individuals be treated equally.41 Therefore, the transfer mechanism within
the 2015 Act is violative of both constitutional and international mandates.
43. Research in neuroscience clearly demonstrates that children are intrinsically different from
adults in terms of their psychological development and thus are less culpable as well.42 Their level
of mental and emotional development also means that children demonstrate a greater potential for
rehabilitation in comparison to adults and thereby are more likely to respond positively to
rehabilitation interventions.43

1.4 ACCUSED PERSON ARE WRONGLY CONVICTED UNDER SECTION 25/27 OF THE ARMS ACT

44. That the said possession of arms has not been corroborated independently.The prosecutrix
did not specify that which of the accused had the possession of the gun. That the panch witness
had not supported recovery, and arms which were not properly sealed and marked couldn’t
establish the offense of accused beyond reasonable doubt. That the same arms were not sent to
the ballistic expert to test its workability. So conviction of the accused should be held improper
under section 25/27 of the Arms Act 1959.

39
Gauri Pillai & Shrikrishna Upadhya, Juvenile Maturity and Henious Crimes: A Re-Look At Juvenile Justice Policy
in India, 10 NUJS L. REV. 60, 49-82 (2017).
40
Swagata Raha & Arlene Manoharan, Juvenile Justice Amendment: Adolescents are not Grown-ups, May 9, 2015,
available at http://blogs.economictimes.indiatimes.com/et-commen-tary/juvenile-justice-amendment-adolescents-
are-not-grown-ups/.
41
M. Nagaraj v. Union of India,: AIR 2007 SC 71; see also Joginder Nath v. Union of India, AIR 1975 SC 511.
42
Salil Bali v. Union of India, (2013) 7 SCC 705; see also Subramanian Swamy v. CBI, (2014) 8 SCC 682.
43
James G Scott et. al. Childhood Mental and Development Disorders, in 4 MENTAL, NEUROLOGICAL, AND
SUBSTANCE USE DISORDERS: DISEASE CONTROL PRIORITIES, THIRD EDITION. (ed. by V. Patel et. al.) (2016).

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45. “If there is a discrepancy in the evidence of prosecution witnesses, the accused is entitled
to benefit of the doubt.”44 “The absence of evidence on record to establish that the seized
“revolver” or the “cartridges’ fulfill the definition of “arm” or “ammunition” or “firearm”; and
thus the conviction is not sustainable.”45 It becomes doubtful whether a recovery as stated by the
investigating agency by the investigating agency can be believed, more so when the panch witness
has not supported the recovery.
46. When the seized gun was not sent to the ballistic expert to test its workability nor was
examined by the police officer, who himself could testify on the same, the accused has had to be
given the benefit of doubt.46 Pistol and cartridges as recovered have no distinctive marks and have
not been sealed after a seizure. The identity of such incriminating articles as seized and
as produced in court has not been established. Hence,No conviction permissible.47
47. “Conviction needs to be set aside when evidence not reliable.”48 “An accused convicted
merely based on uncorroborated evidence regarding recovery of weapon at his instance, is to be
given benefit of doubt.”49 If alleged recovery of pistol and cartridges are not free from doubt and
the evidence of the witnesses are not convincing, the conviction should not be based on solitary
evidence of police inspector.50

1.5 THAT ABSCONDER BRIJESH CANNOT BE TRIED WITH OTHER ACCUSED

48. As per the authorities that have been cited, the absconder cannot always abscond because
of guilt, sometimes there may be also some other reasons like fear and nervousness which can
pressurize a person into running away.
49. That the trial of the accused Brijesh is vitiated under section 461 of CrPC. This is because
the magistrate has not been empowered by law to try any such offender who is an absconder
because it is clearly stated in section 273 of CrPC that the evidence to be taken in the presence of
the accused, and the magistrate can only under section 299 CrPC record the depositions
of
witnesses produced on behalf of the prosecution and any such deposition may, on the arrest of

44
Jitender v. State (1989) 2 Crimes 532 (Delhi).
45
Buta Singh v. State of Punjab, 1997 SCC (Cri) 1217.
46
Manoj Kumar Achhelal Brahman v. State of Gujrat, (1998) 2 SCC 354.
47
Jasbir Singh v. State of Punjab, 1998 C rLJ 2063 (SC).
48
State v. Netrapal, (2007) 4 SCC 45.
49
State of Punjab v. Gurnam Singh, AIR 1984 SC 1799 (1).
50
Vinod Kumar Shukla v. State of M.P., 1999 Cr LJ 4507 (MP).

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such person, be given in evidence against him on the inquiry or trial. Therefore the proceedings
of the alleged absconder Brijesh are void under section 461 of CrPC. And the conviction done by
Trial Court and High Court with other accused is improper and arbitrary.
50. The absconding of an accused can never be used to prove the guilt of the accused. A person,
though innocent, may become nervous and run away. However, the courts have held “that
a person running away may not necessarily give rise to an inference of guilt as even an innocent
man might run away because of fear51 or nervousness,52 or out of the sheer elemental instinct of
self-preservation.”53
51. The Supreme Court held recently that is a settled legal proposition that “in a case a person
is absconding after commission of an offense of which he may not even be the author, such a
circumstance alone may not be enough to draw an adverse inference against him as it would go
against him as it would go against the doctrine of innocence. It is quite possible that he, merely
being suspected, may be running away out of fear of police arrest and harassment. Thus, mere
absconding of the appellant cannot be taken as a circumstance which would give rise to drawing
an adverse inference against him.”54

2. CONVICTION OF ACCUSED PERSONS IS UNJUSTIFIED IN LIGHT OF


ORAL AND DOCUMENTARY EVIDENCE

52. It is humbly submitted before Hon’ble Court that Oral testimony of Prosecutrix is wholly
untrustworthy in the instant case as she had previously known to all the accused person, reference
to the nickname of all the accused person renders her testimony to be unreliable and Test
Identification parade is also untrustworthy and can’t be the sole basis for the conviction of the
accused persons.
53. That the recovery of Rs. 4,80,000/- by investigating agency has no reasonable nexus to the
amount of ransom as there is no specific proof of initials or record, that the amount belongs to the
lender or the PW-14. The blatant ambiguity between direct evidence and evidence of medicine is

51
Sat Paul v. Delhi Administration. AIR 1976 SC 303.
52
Matru v. Uttar Pradesh, AIR 1971 SC 1050.
53
Panchu @ Panchanan Mohapatra v. State Of Orissa, 2003 (1) crimes 252.
54
Sk. Yusuf v. West Bengal, AIR 2011 SC 2283.

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the external manifestation of overbridge construction without preaparig the solid platform in a
railway station in so far as the prosecution stand in this case is concerned.55
54. It was categorically stated that before leaving the victim, she was tied with iron chains but
medical report nowhere reveals such things. Counsel also submits that there are material
improvements in the statements made by the prosecutrix and contradictions between her
statement made under sections 161, 164 Cr.PC .
55. The prosecutrix in a Supreme Court case had given go bye to the version in material
particulars as recorded in F.I.R. at the time of recording the statement in the court and medical
evidence also did not support allegation made by the prosecutrix. It was held that acquittal of the
accused was proper.56

2.1 THAT MEDICAL EVIDENCE AND SOLE TESTIMONY OF PROSECUTRIX IS NOT


TRUSTWORTHY

56. It is humbly submitted before the Hon’ble court that Medical report does not specify any
internal or external marks on private parts of the victim, nor specify any bruises on breast and
other parts of the body. The counsel pleads before the Hon’ble bench that in case of such
discrepancies and silent medical report the conviction of the accused person cannot be sustained.
57. That it is evident from the facts as well as medical report that she is unable to give birth to
a child anymore because her uterus was ruptured but this fact is elusive because rupture in uterus
is uncommon and strange fact in case of rape and use of inhuman object is nowhere arises in the
facts of instant case.As discussed above medical evidence does not disclose the manner of rape
which was stated by prosecutrix in her statement under section 161 of Cr.P.C. and admissions.
58. If the evidence of the witness for the prosecution is totally inconsistent with the medical
evidence, this is a most fundamental defect in the prosecution case and unless reasonably
explained, it is sufficient to discredit the entire case.57Most important aspects of evidence
of prosecutrix when is found to be false and fabricated, a conviction cannot be based on remaining
evidence.58

55
(Piara Singh v. State of Punjab, AIR 1977 SC 2274: 1977 Cr. L.J. 1941).
56
Dhir Singh v. State of Rajasthan, 2001 Cr LJ 235 (Raj).
57
Ram Narain v. the State of Punjab, AIR 1975 SC 1727.
58
Mahendra Mudali v. State of Orissa, 1990 Cr LJ 27 (Ori),

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59. In our view, the statement of the prosecutrix was not corroborated either from the medical
evidence, scientific evidence or any other material on record. The Apex Court has held that: "The
courts should, at the same time, bear in mind that false charges of rape are not uncommon. There
have also been rare instances where a person has persuaded a gullible or obedient daughter to
make a false charge of a rape either to take revenge or extort money or to get rid of the financial
liability. Whether there was rape or not would depend ultimately on the facts and circumstances
of each case."59
60. In a matter of rape the statement of the prosecutrix must be given primary consideration,
but, at the same time, the broad principle that the prosecution has to prove its case beyond
reasonable doubt applies equally to a case of rape and there can be no presumption that
a prosecutrix would always tell the entire story truthfully.60 Where medical opinion was at variance
with the ocular account, the accused would be entitled to the resultant benefit.61

2.1.1 That prosecution fails to establish corroboration between the testimony of prosecutrix
and medical evidence

61. That the statement made by prosecutrix recorded u/s 161 of Cr.P.C., followed by her cross-
examination, in which she disposed about the abduction until her release, is contradictory and it
has not been corroborated with a medical report.
62. That the need of cross-checking the victim with her mother directly infers that she was
tutored by her mother for the alleged false charges for accused persons in order to give maximum
punishment on the basis of these false charges. Further not going to the police station firstly for
lodging F.I.R also lead a reasonable and a prudent person to infer that the charges of rape have
been alleged falsely on the accused persons.
63. That Victim is medically examined after the incident but absence of semen stains in vaginal
swabs and clothes, no sign of bleeding and no specific proof of rupture of hymen make
the medical report wholly inconsistent and full of discrepancies.
64. The Hon’ble Supreme Court has held that testimony of the victim of a rape cannot be
presumed to be a gospel truth and observed that false allegations of rape can cause equal distress,

59
Radhu v. State, 2007 Cri.L.J. 4704.
60
Abbas ahmad choudhary v. State of assam, (2010)12 SCC 115.
61
Awadesh v. State, (1998) 2 SCC 557.

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humiliation, and damage to the accused as well.62 Failure of prosecution to connect accused with
a crime and medical evidence could not corroborate the fact that the prosecutrix was raped on the
day of occurrence. The acquittal of accused persons was held proper.63

2.1.2 That accused was not examined according to section 53A of the Cr.P.C..

65. It is humbly submitted before the honorable bench that all the accused persons who are
being alleged of committing rape on the prosecutrix were never examined according to
the mandatory provision of CrPC, which falsify the version of prosecution. So in this effect
charges of rape are false and fabricated.
66. After the amendment in the Act, the medical examination of the accused has also become
a mandatory provision.64 “The examination of the accused is as important as the examination of
the victim, hence the examination of the accused has to do as early as possible. After amendment
in the provisions of CrPC. The medical examination of the accused by the medical practitioner
made compulsory.”65

2.2 THAT THE ACCUSED PERSON ARE ENTITLED TO BE GIVEN BENEFIT OF DOUBT

67. It is humbly submitted before the honorable bench that The investigation and prosecution
of the present case are poor and weak at all time as it is filled with full of gaps and loopholes.
a) That investigation officer was never examined for the proper inquiry of reasons behind
absconding of Brijesh,
b) Non-examination of the gun and cartridges by the ballistic experts, Non-examination of
fingerprint test of Honda car which was recovered,
c) Engine number of Honda car and the chassis number of Honda car is not enquired
d) the medical report is never supported by an expert under section 45 of Indian evidence
act,
e) Call records are not authenticated and validated by the service provider and
content
provider in court.

62
Raju v. State of Madhya Pradesh, (2008) 15 SCC 133.
63
State v. Om Prakash, 2005 CrLJ 779 (HP).
64
Section 53 A, The Code of The Criminal Procedure.
65
Section 53-A, of The Code of The Criminal Procedure.

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68. To put in a simple form, ‘benefit of the doubt’ means a reasonable doubt, which
is compatible with the presumption of innocence of an accused.66 Where two views are possible,
one in favor of the accused and the other against him, the one favoring the accused should be
accepted.67 If the process of evidence on which the prosecution chooses to rest its case are so
brittle that they crumble when subjected to close and artificial examination so that the whole
superstructure built on such insecure foundations collapses without proof of some or more
incriminating circumstances, then benefit of doubt should be given to the accused.68 Benefit of
doubt given as statements of witnesses were found inconsistent with medical evidence.69
69. Proof of the guilt of the accused beyond reasonable doubt is the requirement under criminal
jurisprudence and where the prosecution fails to do that the consequence would be to give benefit
of doubt to the accused.70 Unless and until the charge against the accused stands proved, there
cannot be any conviction based merely on suspicion.71
70. When the evaluation of the findings recorded by trial court, which were also accepted by
the High Court, suffered from manifest error and improper and misappreciation of the evidence
on record, the Supreme Court would necessarily interfere and acquit the accused by giving benefit
of doubt.72
71. In Rang Bahadur Singh V. State of U.P.73 “The time-tested rule is that acquittal of a guilty
person should be preferred to the conviction of an innocent person. Unless the prosecution
establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the
accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty,
without having at least a reasonable level of certainty that the appellants were the real culprits.”

2.3 RECOVERY OF ARTICLES DONE BY INVESTIGATING OFFICER DOES NOT FALL UNDER
THE PURVIEW OF SECTION 27 OF THE INDIAN EVIDENCE ACT.

72. It is most humbly submitted before the honorable bench that Ransom calls were not only
made by cell phones only in the instant case but also by landline also as per the facts stated in the

66
Lal Singh v. State, 2001 SCC (Cri) 472.
67
Raghunath v. State, 2003 SCC (Cri) 326.
68
Datar Singh v. State, AIR 1974 SC 1193.
69
Wilayat Khan v. State, AIR 1953 Cr LJ 662.
70
Babu Ram v. State, (2008) 2 SCC (Cri) 727.
71
Noor Aga v. State, (2010) 3 SCC (Cri) 748.
72
Bharat v. State, 2003 SCC (Cri) 738.
73
Rang Bahadur Singh V. State of U.P., AIR 2000 SC 1209.

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instant case. That there is no specific record of the calls made by landlines renders this electronic
evidence inadmissible.That the mobile phones recovered by investigation agency and sim card
numbers are never examined as to check the owners and registration of the same.
73. The essence of Section 27 of the Evidence Act is based on the principle that the information
must be the cause of the discovery and the information must relate to a fact not otherwise known
by the police. It has been held that where the dead body was recovered on the basis of information
already known, the evidence of recovery cannot be relied upon. It is settled a legal position that
the information must be the cause of recovery and not on the basis of confirmation of an already
known fact. In other words, the information must relate to a fact not otherwise known to the
police.74
74. The Supreme Court in the case held that a recovery of the incriminating article alleged to
have been made by the accused while in custody is inadmissible in evidence if the police already
know where they are hidden then this takes the case out of the purview of Section 27 of the
Evidence Act.75

2.4 ELECTRONIC RECORD CANNOT BE PROVED AS GENUINE IN THE INSTANT CASE

75. It is most humbly submitted before the honorable bench that Ransom calls were not only
made by cell phones only in the instant case but also by landline also as per the facts stated in the
instant case. That there is no specific record of the calls made by landlines renders this electronic
evidence inadmissible. That the mobile phones recovered by investigation agency and sim card
numbers are never examined as to check the owners and registration of the same.
76. As telephone tapping is a threat (as judicially recognised) to right to privacy, the
evidenciary admissibility naturally gets challenged in so far as hard copoy of the available data
as produced before the Court is concerned.Due to having the probability of telephone tampering,
the possibbility of derangement cannot be igonred espicially when the aspect of the accused
conviction is involved.76 In the instant case, it is nowhere mentioned that the person who certifies
the call detail record was the same who have the possession of the call records.
77. In the instant case there is no expert opinion supporting the electronic evidence. If the
original electronic record is challenged, section 22A of the Evidence Act permits oral evidence

74
State of Haryana v. Gaghseer Singh, AIR 2003 SC 4377.
75
Aher Raja Kheema v. State of Saurashtra, AIR 1956 SC 217.
76
Ravi Kant Sharma & Ors. V. State, 2011 V AD (Cr.) 75.

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as to its genuineness only. In this regard, relevant oral evidence as to the genuineness of the record
can be offered by the Examiner of Electronic Evidence, an expert witness under section 45A of
the Evidence Act who is appointed under section 79A of the IT Act.

2.5 TEST IDENTIFICATION PARADE CANNOT BE WEIGHTED AS EVIDENCE IN THE INSTANT


CASE

78. In the instant case, it is most humbly submitted that before test identification parade victim
already have seen the arrested accused before the process of test identification parade so
the veracity and value of test identification parade in the instant case are not authentic and valid.
79. That we may also notice that except Virender who was minor, prosecutrix is known to all
the accused persons so in the instant case evidentiary value of Test Identification parade seems to
be poor.
80. The value of identification is very poor and it would be very unsafe to rely on it solely for
upholding the conviction77Where the accused person was known to the witnesses as they were
residing in a village within a radius of two miles, no weight could be given to their testimony of
identification.78 If the witness did not give any distinctive features or marks of the accused,
though he identified during the test identification, the identification would not have any value.79It
is humbly submitted that in the instant case there is no clarification about the features and marks
on the accused persons which renders TIP doubtful and unreliable.
81. The purpose of TIP is to test and strengthen trustworthiness of the substantive evidence of
a witness in court. It is for that reason Test identification parade is held under the supervision of
a magistrate to eliminate any suspicion or fairness and to reduce the chance of testimonial error
as the magistrate is expected to take all possible precautions.80The idea of the parade is to test the
veracity of the witness on the question of his capability of identifying, from several people made
to stand in a queue, an unknown person whom the witness had seen at the time of occurrence.81If

77
Poshaki v. State, AIR 1953 ALL 526.
78
Ali Bhadur v. State, 1998 CrLJ 2871; 11, 12.
79
Subhash v. State, AIR 1987 SC 1222.
80
Ram Babu v. State of UP, AIR 2010 SC 2143.
81
Kanan v. State of Kerala, 1979 CrLJ 919.

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the identification parade was not properly and regularly conducted, it cannot operate as reliable
corroboration regarding identification in the court.82

3. THAT LIFE IMPRISONMENT WITH FINE IMPOSED BY TRIAL COURT IS


ARBITRARY

82. It is manifest that the prosecutrix had not been raped at all on the day of the incident. She
has fabricated a totally false story about her kidnapping and rape and has framed the accused
wrongly in this case. The prosecutrix nowhere stated about who has raped her out of the 6 persons
in her testimony which creates a reasonable presumption of wrongful conviction of accused
persons.
83. As Mahatma Gandhi rightly said that "An eye for an eye will turn the whole world
blind."83
The reformative theory seems to strengthen the character of the man so that he may not become a
victim of his own temptation. This theory would consider punishment to be curative or to
perform the function of medicine.
84. Treating crime as a disease, the ultimate aim of reformists is to try to bring about a change
in the personality and character of the offender, so as to make him a useful member of society.84
But that is the beginning of a new story, the story of the gradual Renewal of a man, the story of
his gradual regeneration, of his Passing from one world into another, of his initiation into a new
Unknown life.85
85. The Supreme Court very prudently pointed out in the landmark judgment of Sunil Batra v.
Delhi Administration86 and held that “It must be noted that In the case of young offenders and
first offenders, the chances of long-lasting reformation are greater than in the case of habitual
offenders. Again, some crimes, such as sexual offenses, are more amenable to reformative
treatment than others. Further, reformative treatment is more likely to succeed in educated and
orderly societies than in turbulent or underdeveloped communities. Parole and probation are
common tools of the reformative form of punishment.”

82
Mohanan Nair v. State of Kerala,1989 CrLJ 2106.
83
Mahatma Gandhi used the phrase "An eye for an eye, and soon the whole world is blind", in reference to his
Satyagraha philosophy of non-violent resistance.
84
H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAY IN THE PHILOSOPHY OF LAW (2008).
85
J. M FINNIS, Natural Law: the Classical Tradition in THE OXFORD HANDBOOK OF JURISPRUEDENCE AND
PHILOSOPHY (Jules L. Et. al. Ed.) (2004).
86
AIR 1978 SC 1675.

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86. There being the possibility of the reformation of all the accused persons as they all are the
first time offenders and immature, awarding Imprisonment for life would not be justified in the
instant case.87
87. “The draconian provision which may lead to a harsh sentence having regard to the
doctrine of “due process” as adumbrated in Art. 21 of the constitution, requires striking a balance
between the need for law and enforcement thereof, on the one hand, and protection of the citizen
from oppression and injustice on the other.”88

3.1 THAT REFORMATIVE AND REHABILITATIVE FACTORS MUST BE APPLIED

88. It is most humbly submitted before the honorable bench that in the instant case, all the
circumstances of accused persons are ignored. That all the accused persons including minor
Virender are young and college going students who are not mature enough to understand the
consequences of the alleged acts.
89. That all the accused are in the state of intoxication when committing rape as per the facts
of the case so they are not capable to form a requisite intention to commit rape because
of excessive drinking of scotch and whiskey which has approx 40% alcohol.That the future of the
accused, as well as their parents, will be-be ruined.
90. That the accused person is not a habitual offender and belongs to a well-educated family so
a reformative, as well as a rehabilitative approach, must be applied in order to give
compensation.
91. The law also believes that ‘if all saints have a past, all sinners must have future’89 The
theory of reformation follows the spirit of preventive attribution with a view to reaching the target
of generating expatiation in in convict’s mind.90Many criminals’ behavior in post reformative life
gives a stable land to the above noted argument even though rate of crime has increased than
before. Reformative techniques are much close to the deterrent techniques.9192.

87
Mahammad Giasuddin v. State of Andhra Pradesh, 1977 Cr.L.J. 1557.
88
Directorate of Revenue v. Mohd. Nisar Holia, (2008) 2 SCC 370.
89
V. R. Krishna Iyer, Jeremy Bentham, 'An Introduction to the Principles of Morals and Legislation', (J. H. Burns &
H. L. A. Hart eds., 1970) P.S.A. PILLAI, CRIMINAL LAW, 9th Ed. 286 (2000).
90
Andrew Ashworth, "Principles of Criminal Law" 5th edn., 2006, Oxford University Press.
91
Hall Jerome, 'The Aims Of Criminal Law'.
92
See Generally: H.L.A HART, in Radzinomics and Wolfgang(eds.) 'Crime and justice, Vol. II, 1971 - 1972
Andrew Ashworth, "Principles of Criminal Law" 5th edn., 2006, Oxford University Press Hall Jerome, 'The Aims Of
Criminal Law'sss Kenworthy Bilz, "What's Wrong with the Harmless Theories of Punishment".

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92. Reform in the deterrent sense implies that through being punished the offender recognized
his guilt and wished to change. “The formal and impressive condemnation by society involved in
punishment was thought to be an important means of bringing about that recognition.”93 As a
theory rehabilitation is usually associated with the treatment of the offender. A majority
of criminologists see punishment as a means of educating the offender.94
93. In Narotam Singh v. the State of Punjab,95 the Supreme Court has taken the following
view-
"Reformative approach to punishment should be the object of the criminal law, in order
to promote rehabilitation without offending community conscience and to secure social justice."
Gandhi Ji said, “Hate the sin and not the sinner”. It should be the guide in the administration of
criminal justice.
94. In Sunil Batra, Karuna (Mercy) is treated as the mainspring of jail justice which would
obviate torturesome behavior which spoils the reformatory and correctional process. According
to Krishna Iyer, “fair treatment will enhance the chance of rehabilitation by reactions to
arbitrariness.”96Kautilya regarded the object of punishment as a reformatory. Reformative
punishment may mean either that the offender is reformed while being punished or that he is
reformed by the punishment itself qua the punishment.97

3.1.1 Mitigating and other circumstances of the accused in the instant case should not
be undermined.

95. It is humbly submitted before the Hon'ble bench that following are the factors which should
be kept in mind in giving punishment to the offenders.
a. all the accused are of young age
b. The emotional and mental condition of all the accused is in the state of hallucination due
to intoxication
c. commision of crime and evidence does not show any brutality and harsh behavior
d. All the accused are first time and offenders

93
Kenworthy Bilz, " What's Wrong With Harmless Theories of Punishment " 79 Chicago-Kent Law Review, 1215
(2004).
94
Russell Christopher, Deterring Retributivism: The Injustice of ‘Just’ Punishment, 96 NW. U. L. REV. 843 (2002).
95
Narotam Singh v. the State of Punjab, 1978 SC 1542.
96
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
97
G. C. Field, The Morality of Punishment. By A. C. EwingM.A., D.Phil. With a Foreword by DrW. D. Ross,
(London: Kegan Paul, Trench, Trübner & Co., Ltd.1929. Pp. xiv 233. Price 10s. 6d.), 5 PHILOSOPHY, 288–289 (1930).

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96. Sentence on an accused convicted of rape aged 22 and not a habitual offender was reduced
from four to two years R.I. by Supreme Court.98Accused, a young man of twenty committing rape
on a girl of fourteen sentences of five years was reduced to three years99
97. In the Supreme Court’s judgment in Soman v. Styate of Kerala, the Court cited a number
of principles that it has taken into account “while exercising discretion in sentencing,” such as
proportionality, deterrence, and rehabilitation.100 As part of the proportionality analysis,
mitigating and aggravating factors should also be considered, the Court noted.
98. The second factor which is considered is if the accused has committed any crimes in the
past, i.e. if the accused has any criminal antecedents. It is believed that in case it is the first time
the accused is committing a crime, he may not have a criminal mindset and might have committed
the crime in the spur of the moment or under extreme mental distress.101
99. In light of taking all the factors into consideration, it is an imperative that awarding
imprisonment to a juvenile offender must be avoided. This is said while taking into consideration
the tenderness accompanying the young age, since awarding such a harsh punishment to a young
child can result in permanent tampering of the child’s brain, and the company of the seasoned
offenders can cause him to lose sight of the right path forever. To avoid the deviant behavior of
the young offender, it is mandatory that appropriate measures should be taken while there is still
a chance for reform.
100. Another mitigating circumstance which the Bachan Singh case considered to be relevant
was the age of the accused. If the accused is young, i.e. till he’s thirty, he is considered capable of
reformation. This factor has been taken into account by the courts in some of the cases selected
for analysis.102

3.2 GRANT OF 50 LAC COMPENSATION IS VIOLATIVE OF VICTIM COMPENSATION SCHEME

101. It is most humbly submitted before the honorable bench that compensation of 50 lac is
arbitrary and ultra vires to the Rajasthan victim compensation scheme as well as Central Victim

98
Phul Singh v. State of Haryana, AIR 1980 SC 249.
99
Shafi v. State, AIR 1953 All 502.
100
(2013) 11 SCC 382.
101
Santosh Kumar Singh v. State of Madhya Pradesh, AIR 2014 SC 2745.
102
The State of Bihar v. Hemlal Sah, 2014 CriLJ 1767.

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Compensation Scheme. The accused persons are convicted falsely on the basis of fabricated
evidence, so giving 50 lacs compensation is unlawful and improper in the instant case.
102. A magistrate can award any sum as compensation but while fixing the quantum the
magistrate has to consider what would be the reasonable amount.103 The court is to take into
account the nature of the crime, the injury suffered, the justness of the claim of the victim and the
ability of the accused to pay.104
103. Compensation should be commensurate with the capacity of the accused to pay as also other
facts and circumstances of the case like the gravity of the offenses, needs of the victim ’s family
etc.105 Section 357 CrPC confers a duty on the court to apply its mind to the question of
compensation in every criminal case. It necessarily follows that the court must disclose that it has
applied its mind to this question in every criminal case. In Maya Devi v. Raj Kumari, Batra106
Court held that the disclosure of application of mind is best demonstrated by recording reasons in
support of the order or conclusion. The Court observed: (SCC p. 495, paras 28-30) “There is
nothing like a power without any limits or constraints. That is so even when a court or other
authority may be vested with wide discretionary power, for even discretion has to be exercised
only along well recognized and sound juristic principles with a view to promoting fairness,
inducing transparency and aiding equity. What then are the safeguards against an arbitrary
exercise of power? The first and the most effective check against any such exercise is the well-
recognized legal principle that orders can be made only after due and proper application of mind.
Application of mind brings reasonableness not only to the exercise of power but to the ultimate
conclusion also. Application of mind, in turn, is best demonstrated by disclosure of the mind. And
disclosure is best demonstrated by recording reasons in support of the order or conclusion.
104. In Dilip S. Dahanukar case107 this Court even favored an inquiry albeit summary in nature
to determine the paying capacity of the offender. The power thereunder subsection (3) of Section
357 of the Cr.P.C. should be exercised only in appropriate cases since it does not impose any such
limitations. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.”

103
K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510.
104
Palaniappa Gounder v. State of Tamil Nadu AIR (1977) SC 1323.
105
Rachpal v State, (2002) 6 SCC 462.
106
(2010) 9 SCC 486.
107
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr., (2007) 6 SCC 528.

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105. It is humbly submitted before this Honorable Court that there was no proper application of
mind as well as disclosure of reasoning behind giving such a ruthless and extreme compensation.
Further, there was no inquiry by the judge as to decide the quantum of compensation balancing
the circumstances of both the victim and offender.
106. It is humbly submitted before this Honorable Court that prosecution fails to establish the
total cost of medical expenses incurred by the accused and in absence of any material evidence
against the accused they are liable to be acquitted. That seeing the accused as college
going student, it is impossible for the accused to pay 50 lakh rupees of compensation as no one of
them is earning. Thus in light of above-mentioned reasons, the trial court used its power to the
award
of 50 lakh compensation is arbitrary and unjustifiable.

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PRAYER FOR RELIEF

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

it is most humbly prayed before this Honorable Court that it may be pleased to declare:

1. THAT THE JUDGMENT OF THE TRIAL COURT AND THE HIGH COURT SUFFERS FROM

INFIRMITY OF LAW, AND IS LIABLE TO BE SET ASIDE.

2. THAT THE APPELLANTS ARE NOT LIABLE TO PAY COMPENSATION, SINCE THEIR CONVICTION

HAS BEEN PASSED WRONGFULLY AND THE COMPENSATION HAS BEEN IMPOSED WHILE

IGNORING THE LEGAL PRINCIPLES.

And pass any other order that it deems fit in the light of justice, equity and good conscience. All of

which is respectfully submitted.

XIV