NALANDA LAW COLLEGE MOOT COURT - 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2019

MR. A

Age: XX years, R/o village Khairlanji,

Tal: Warasione, District: Nagpur

(At present convicted to death penalty)

MR. B

Age: XX years, R/o village Khairlanji, APPELLANT

Tal: Warasione, District: Nagpur

(At present convicted to death penalty)

MR. C

Age: XX years, R/o village Khairlanji

Tal: Warasione, District: Nagpur

(At present convicted to death penalty)

VERSUS

THE STATE OF MAHARASHTRA RESPONDENT

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TABLE OF CONTENTS

Table of contents…………………………………………………………………………. 1

List of Abbreviations……………………………………………………………………... 3

Index of Authorities……………………………………………………………………… 4

Statement of Jurisdiction…………………………………………………………………. 7

Statement of facts………………………………………………………………………… 8

Statement of Issues……………………………………………………………………….. 9

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

Prayer of Respondent ………………………………………………………………......... 16

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LIST OF ABBREVIATIONS

¶ Paragraph

& And

AIR All India Reporter

MH Maharashtra

ANR Another

Bom Bombay

CCR Current Criminal Reports

Co Company

CrPC Criminal Procedure Code

Crl.A. Criminal Appeal

Ed Edition

I.L.R Indian Law Reporter

Govt Government

Hon’ble Honorable

FIR First Investigation Report

Id Ibid

Mr. Mister

Ltd Limited

L.J Law Journal

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INDEX OF AUTHORITIES

STATUTORY COMPILATIONS :-

CONSTITUTIONS:-

1- The Constitution of India,1950.

ACTS, CODES AND STATUTES :-

1 Indian Penal Code 1860
2 Evidence Act
3 Criminal Procedure Code

BOOKS:-

BOOKS REFERRED

1. C.K.Thakkar ‘Takwani’, Code of Criminal Procedure (3rd Ed., Lexis

NexisButterworthsWadhwa, Nagpur, 2012).

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

3. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, Code Of Criminal

Procedure(17th Ed., Wadhwa and Company, Nagpur, 2007).

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

2. The International Webster’s New Universal Dictionary (2nded. Trident Press

International, USA, 1983).

3. P. RamnathaIyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2010).

SUPREME COURT CASES

1. Bachhan Singh v. State of Punjab, AIR 1980 SC 898.

2. Balwant Singh v. State of Punjab, 1983 (1) C.L.R. 473

3. Balwant Singh v. State of Punjab, AIR 2003 SC 3617.

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

5. Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947.

6. Kehar Singh v. State (Delhi Admn.), AIR 1988 SC 1883.

7. Machhi Singh v. State of Punjab, AIR 1983 SC 957

8. Ramnaresh v. State of Chhattisgarh, AIR 2012 SC 1357.

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

10. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

11. Strickland v. Washington, 466 U.S. 668 (1984).

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

13. William Slaney v. State of M.P., AIR 1956 SC 116.

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HIGH COURT CASES

1. Bhagwan Tukaram Dange v. State of Maharashtra, App. (Cr.) No.1823 of 2008 (2014)

2. State of Chhattisgarh Vs. Hariram Ray, App. (Cr.) No. 545 & 628 of 2013 (2015)

3. State of Delhi v. Mohd. Afzal Guru, 2003 VIIAD Delhi 1.

4. Suresh Kumar Ray v. Raju @ Rajesh Ray, 2013 CriLJ 4671.

5. Yakub Abdul Razak Menon v. State of Maharashtra, 2015 (8) Scale 339.

DATABASES REFERRED

1. http://www.scconline.com

2. http://www.manupatra.com

3. http://www.westlaw.org

4. http://www.indiankanoon.com

5. http://www.lexisnexis.com

6. http://www.judis.nic.in

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Statement of Jurisdiction

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

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

Section 374 appeal from conviction

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

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Statement of Facts

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

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

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

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

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

 When they returned they found that victim was dead.

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

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

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

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

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

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STATEMENT OF ISSUES

ISSUE NO 1

Whether Appeal is maintainable?

ISSUE NO 2

Whether case falls in rarest of rare cases?

ISSUE NO 3

Whether death penalty is appropriate in this case?

ISSUE NO 4

Whether Constitutional Rights have been infringed in this case?

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Argument

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

2. Hon’ble Apex Court in the case of Machhi Singh v. State of Punjab described
meaning of manner of murder and stated that when murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community then such act is one of the aspects of the doctrine of
“rarest of rare” cases manner of commission of crime by accused..

3. In the present case act of the three accused is abhorrent because Sayali was minor
child who could not have provided even an excuse, much less a provocation, for brutally
raping and murder. Apex Court has already stated that killing children is an act of brutality
and sufficient to apply doctrine of “rarest of rare” cases. In the present case, the three accused
raped brutally and murdered by insertion of some metal object inside the victim’s private part
and tightening of the dupatta around the neck of the deceased Sayali which clearly establishes
that his act falls under the purview of “rarest of rare” cases. The act of the three accused also
shocks the collective conscious of the community. Therefore, act of accused shocks the
collective conscience of the community and falls under the purview of “rarest of rare” cases.

4)In addition to the above all three accused are habitual drinkers and have also have
committed sexual assaults many times. If we see at the pattern of brutal rape and murder
committed by them there is high probability that they will commit such heinous crime again.

The Apex Court has upheld the death penalty awarded to the accused of Nirbhaya rape-cum-
murder case after calling it as “rarest of rare” case and extreme punishment is granted for the

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

Evolution of Rarest of Rare Doctrine

In Maneka Gandhi v Union of India, the Supreme Court has ruled that the death penalty can
be awarded only in special cases. It constitutes an exceptional punishment which will be
imposed only with special reason and must be properly conferred by the High Court.

In Rajendra Prasad v State of Uttar Pradesh, Justice Krishna Iyer observed that “If the
murderous operation of a die-hard criminal jeopardises social security in a persistent,
planned and perilous fashion then his enjoyment of fundamental rights may be rightly
annihilated”[5].

Iin Santosh Kumar Bariyar v. State of Maharashtra, Justice S B Sinha in his majority
judgment has imposed a duty upon the court that “appropriate punishment is to be
determined on a case-by-case basis. The death sentence is not to be awarded save in the
`rarest of rare’ case where reform is not possible.”

Basing reliance on Bachan Singh case, the following can be considered as aggravating
circumstances:-

 Murder committed with previous planning and extreme brutality

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

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discharge of his duty whether or not at the time of the murder he was such member
or public servant
 Murder of a person in the course of lawful discharge of his duty u/s 43, 37 and 129
of CrPC.

In the present case act of brutality of the accused persons satisfies the aggravating
circumstances.

5) In the present scenario where such crimes are continuously increasing reformative ideas
are totally ineffective.In the present case if death penalty is not given it will only badly
influence the criminals like them out there to commit such heinous crimes.In the present case
due to increasing number of crimes like in the present case reformation of the accused is
ineffective.

6)As observed by the bench of Madhya Pradesh High Court in Case of Mahindra Singh Gond
vs State of Madhya Pradesh “Justice demands that the court should impose a punishment
befitting the crime so that it reflects the public abhorrence of the crime.” In the present case
this Hon’ble Court to confirm death penalty so that justice is given by imposing punishment
befitting the crime so that it refects the public abhorrence of the crime.

7) Humanity is more in danger in the hands of persons like the three accused.The three
accused have committed an act of extreme depravity when they brutally raped and murdered
a minor girl Sayali.The crimes against the girl child are on rise therefore extreme punishment
may deter the other criminals indulging such crime.The extreme punishment may convey a
message to these predators that it is not a soft state where criminals committing such crimes
may get reprieve in the guise of humanity.

8)The humanity is more in danger in the hands of the persons like the accused and the only
punishment which they deserve for having committed the reprehensible and gruesome
gangrape and murder of a innocent minor girl to satisfy their lust is nothing but death.

9) The alarming increase in the rising incidents of child rapes has led to increasing anger of
the society over rape of minor across the country therefore death sentence is a necessity for
deterring other potential offenders.

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

Article 14 and 21 of the Constitution has not been violated

It is humbly submitted before this Hon’ble court that trail of the accused persons was fair
from commencement to the conclusion. In the present case it has already been established
that it was a prima facie that three accused has committed rape and murder with common
criminal intention falls under the category of rarest of rare cases.The three accused has got
opportunity of being heard.The three accused were heard on the sentence and were
represented by counsel of their own choice.Therefore it can be said that no prejudice has been
caused to the appellants.

The three accused has got opportunity of being heard and they were represented by counsel
of their choice.There has been no delay in hearing their matter and they have confessed to
their crimes to Sessions court.The law sees Death penalty as the extreme means by which the
convict is irreversibly removed from the society wherein he / she is deemed ‘not fit to live’.
Put differently, ‘sentence to death’ is pronounced if and only if the convict, in the view of the
Court, is so dangerous a threat to the society that his freedom, even in distant future, can’t be
afforded. Moreover, by committing the crime that he / she is accused and found guilty of, the
convict had violated the ‘right to life’ of the victim(s) thereof. By committing the crime, the
criminal is deemed as having virtually forfeited his / her rights. Hence, the penalty imposed
can’t be treated as violation of the convict’s rights.

The constitutionality of death sentence was canvassed for the first time before the apex court
in the case of Jagmohan Singh v State of Uttar Pradesh. Section 302 of IPC was challenged
as violative of Article 14, 19 and 21 of the Constitution. The Court upheld the sentence of
death as constitutional and held, that even after assuming that right to life is the foundation
stone of the freedom enumerated under Article 19 and that no law can be enacted which takes
away the life of a person unless it is reasonable and in public interest. So, it is difficult to hold
that capital punishment as such was unreasonable or not required in public interest. If the
entire procedure for a criminal trial under the CrPC for arriving at a sentence of death is valid
then the imposition of the death sentence in accordance with the procedure established by law
cannot be said to be unconstitutional.

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In Bachan Singh, the Supreme Court reaffirmed its earlier decision in Jagmohan case by 4:1
majority. It was argued that the Supreme Court in Maneka Gandhi v Union of India has given
a new interpretative dimension to articles 14, 19 and 21, and their interrelationship in every
law of punitive detention both in its procedural and substantive aspect must pass the test of all
three articles. However, the Court rejected this argument. It was held that article 19 unlike
article 21, does not deal with the right to life and personal liberty and is not applicable for
judging the constitutionality of the provisions of section 302 IPC. As regards article 21, it
was recognized that in the said article, the founding fathers recognized the right of the State
to deprive a person of his life or personal liberty in accordance with fair, just and reasonable
procedure established by law, and there are several indications in the Constitution which
show that the Constitution makers were fully cognizant of the existence of death penalty,
such as, Entries 1 and 2 in List II, article 72(1)(c), article 161 and article 34.

In T.V. Vatheeswaram v State of T.N., it was held that delay exceeding two years in the
execution of death sentence entitles a convict to get it commuted to life imprisonment. But it
was overruled in Sher Singh v State of Punjab, that no such limit could be fixed for the
execution of death sentence without regard to the facts of every case.

Case Law

Mukesh & Anr vs State for NCT of Delhi & Ors

The Supreme Court confirmed the death sentence awarded to the four convicts in
the 16 December, 2012 gangrape and murder case, terming it the 'rarest of rare', most brutal,
barbaric and diabolical attack on the 23-year-old paramedic student.

The case sent a "tsunami of shock" all over, the apex court said, adding that the convicts
treated the victim as an object of enjoyment, with the single purpose of ravishing her.

A three-judge bench, through a unanimous verdict, upheld the Delhi High Court judgment
that had concurred with the trial court decision.

Those who will face the gallows are Mukesh (29), Pawan (22), Vinay Sharma (23) and
Akshay Kumar Singh

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PRAYER

The Respondent, therefore, pray that:-

1. The case of the accused falls in rarest of rare cases

2. There is no violation of Article 14 and Article 21 of Constitution of India.

3. The Accused will be executed.

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

MUMBAI,
DATED :

ADVOCATE FOR THE RESPONDENT

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