Petitioner NLC Pune

TC-01
INTEGRATED SCHOOL OF LAW GHAZIABAD

1ST ALL INDIA NATIONAL MOOT COURT COMPETITION , 2019
IN THE HON’BLE SUPREME COURT OF INDUSTAN
(CRIMINAL APPELLATE JURISDICTION)
SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019
SURESH ……...PETITIONER
Versus
UNION OF INDUSTAN ………RESPONDENT
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUSTAN)
WITH
SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019
SIDDHART ………PETITIONER
Versus
UNION OF INDUSTAN ……….RESPONDENT
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUSTAN)
MEMORIAL ON BEHALF OF THE PETITIONER

1st ALL INDIA NATIONAL MOOT COURT COMPETITION
BY
TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………………3
INDEX OF AUTHORITIES………………………………………………………………..4
STATEMENT OF JURISDICTION………………………………………………………..7
STATEMENT OF FACTS………………………………………………………………....8
ISSUES RAISED…………………………………………………………………………..10
SUMMARY OF ARGUMENTS…………………………………………………………..11
ARGUMENTS ADVANCED……………………………………………………………..13
I. WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2014 IS CONSTITUTIONAL OR NOT?
A. THE ACT IS IN CONTRAVENTION WITH THE ARTICLE 14 AND 15(3)
OF THE CONSTITUTION OF INDUSTAN.
B. THE ACT IS IN CONTRAVENTION WITH THE UN CONVENTION ON
THE RIGHTS OF THE CHILD
II. WHETHER THE HIGH COURT AND SESSION COURT WERE

JUSTIFIED IN REJECTING THE TEST FOR DETERMINATION OF
SURESH’S AGE OR NOT ?
A. THE BONE TEST IS A RELIABLE SOURCE
B. THE LOWER COURT IS NOT JUSTIFIED FOR DENYING THE
OSSIFICATION TEST AS A RIGHT TO SURESH
III. WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL THE

CHARGES LEVELED AGAINST HIM OR NOT?
A. THE CIRCUMSTANTIAL EVIDENCES ARE INCONCLUSIVE IN
NATURE.
B. S.K. KUMAR’S STATEMENT CANNOT BE RELIED UPON.
PRAYER……………………………………………………………………………………26
MEMORIAL FOR PETITIONER Page | 2

BY
LIST OF ABBREVIATIONS
S. No. ABBREVIATIONS FULL FORMS

1. § Section
2. ¶ Paragraph
3. AIR All India Reporter
4. Anr Another
5. CrLJ Criminal Law Journal
6. ed Edition
7. HC High Court
8. IPC Industan penal code
9. JJ Juvenile Justice
10. JJB Juvenile Justice Board
11. NCRB National Crime Records Bureau
12. NHRC National Human Rights Commission
13. Ors Others
14. PIL Public Interest Litigation
15. Pvt Private
16. r/w Read with
17. SC Supreme Court
18. SCC Supreme Court Cases
19. SCR Supreme Court Reporter
20. u/s Under section
21. UNCRC United Nations Convention on the Rights of the
child
22. v. Versus
23. UN United States

BY
INDEX OF AUTHORITIES
COMMENTARIES REFERRED:
BOOKS ON CONSTITUTIONAL LAW:
1. H.M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law

Publishing Co. Pvt. Ltd., New Delhi 2004).
2. M.P JAIN, 2 CONSTITUTIONAL LAW OF INDIA ( 7th ed. Lexis Nexis 2014).
BOOKS ON INDIAN EVIDENCE ACT:
1. RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE (23rd ed. Lexis Nexis,
Gurgaon, 2015)
2. BATUK LAL, THE LAW OF EVIDENCE (7th ed. Orient Publishing Company, New
Delhi 2015)
BOOKS ON INDIAN PENAL CODE:
1. KD GAUR, CRIMINAL LAW CASES AND MATERIALS (7th ed. Lexis Nexis,
Gurgaon 2013).
2. DR. K.I. VIBHUTE, P.S.A. PILLAI’S CRIMINAL LAW (12th ed. Lexis Nexis,
Gurgaon 2015).
DICTIONARIES REFERRED:
1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001).

2. OXFORD ENGLISH DICTIONARY (2nd ed. 2009).
INTERNATIONAL COVENANTS REFERRED:
1. UNITED NATIONS STANDARD MINIMUM RULES FOR THE

ADMINISTRATION OF JUVENILE JUSTICE, 1985 (THE BEIJING RULES).

BY
2. UNITED NATIONS CONVENTION ON RIGHTS OF CHILD, 1992.
JOURNAL REFERRED:
1. CRIMINAL LAW JOURNAL, AUGUST 2015.
STATUTES REFERRED:
1. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015.

2. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000.
3. INDUSTAN PENAL CODE, 1860.
4. INDUSTAN EVIDENCE ACT, 1872.
5. THE CONSTITUTION OF INDUSTAN, 1950.
WEBSITES REFERRED:
1. www.manupatrafast.com
2. ncrb.nic.in
3. www.scconline.com
4. www.indiankanoon.com
CASES
 Ashish Batham v. State of M.P., A.I.R. 2002 S.C. 3206.

 Bakhshish Singh v State of Punjab, A.I.R. 1971 S.C. 2016 3 S.C.C. 182.
 Budhwa v. State of M.P, A.I.R. 1991 S.C. 4.
 Bhoop Ram v. State of U.P, AIR 1989 SC 1329.
 Gopinath Gosh v. State of West Bengal, AIR 1984 SC 237.
 Harendra Narain Singh v. State of Bihar, A.I.R. 1991 S.C. 1842.
 Heer v. State of Rajasthan, A.I.R. 2007 S.C. 2425.

BY
 Jaya Mala v. Home Secretary, Govt. Of J&K, AIR 1982 SC 1297.

 Mangulu Kanhar v. State of Orissa, A.I.R. 1995 Cr LJ 2036 (ori).
 Murugan v. State, A.I.R. 2009 S.C. 72.
 M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260
 Paramjeet Singh v. State of Uttarakhand, A.I.R. 2011 S.C. 200.
 R. v. Prater, 1960 2 Q.B. 464.
 Salil Bali v. Union of India, A.I.R. 2013.
 Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others AIR 1958 SC 538
 Subramanian Swamy v. Raju Thr. Member Juvenile Justice Board and Anr., (2014) 8
SCC 390
 Shangara v. State of Punjab, A.I.R. 1995 S.C.C. (Cr.) 163.
 Sewaki v. State of H.P, A.I.R. 1981 Cri LJ 919.
 State of Goa v. Pandurang Mohite, A.I.R. 2009 S.C. 1066.
 Viseswaran v. State, A.I.R. 2003 Cri LJ 2548 S.C.

BY
STATEMENT OF JURISDICTION
Petitioner No. 1 and 2 approaches the Hon’ble Supreme Court of Industan under Article 136
of the Constitution of Industan which gives discretionary power to the Supreme Court of
Industan to hear any matter on appeal against the order passed by any court or tribunal in
the territory of Industan where justice and equity so demands. The article 136 of Constitution
of Indiana reads as hereunder:
“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.
i. Notwithstanding Anything In This Chapter, The Supreme Court May, In Its Discretion,
Grant Special Leave To Appeal From Any Judgment, Decree, Determination, Sentence
Or Order In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The
Territory Of India.
ii. Nothing In Clause (1) Shall Apply To Any Judgment, Determination, Sentence Or
Order Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law
Relating To The Armed Forces.”

BY
STATEMENT OF FACTS
I
BACKDROP OF THE CASE
th
Suresh a poor boy, studied in a government school, dropped after 6 standard due to poor
economic conditions, ever since he is a domestic-servant of Mr. Avinash Chopra family.
Shubham & Shubhangi adolescent children of Mr. Chopra treated Suresh in a condescending
manner, affronted him over trivial matters in public. One day while playing a football hit
Shubhangi head due to which Shubham started verbally abusing Siddhart, who lived in the
neighborhood. Their fight was resolved by Mr. Khanna.
II
THE GRISLY MURDER OF SHUBHAM AND SHUBHANGI
On 7th March, 2018, Suresh took leave for three days for going to his village, knowing about
the exhibition that Mr. Chopra’s family was planning to visit. Next day on the fateful night of
8th March, 2018 around 8:30 p.m. Shubhangi was taken by four persons & Shubham sensed
his sister’s absence. When Shubham reached the basement, he saw persons outraging her
modesty and while trying to save her he received a blow by a rod on his head & several blows
over his abdomen. Shubhangi mouth was forcefully shut and she was strangulated to death.
Around 9:30 p.m., the guard discovered their bodies in the basement, reported to nearby police
station and police sent bodies for medical examination. On 10th March, 2018 I.O. arrested
Siddhart on the information of S.K. Kumar and further arrested Suresh, Suraj, and Dharmesh.
Medical Report revealed that Shubham died due to head injury & internal bleeding and
Shubhangi died due to strangulation.

BY
III
DECISION OF THE JUVENILE JUSTICE BOARD
JJB found Siddhart & Suresh well aware of the circumstances & consequences of their acts
and their case was committed to the Session Court while Suraj & Dharmesh were tried by
the Juvenile Board u/s 304, 326, 354 r/w 34 and their guilt was corroborated by
circumstantial evidence, medical evidence and were sent to special home for a period of one
year.
IV
VERDICT GIVEN BY THE SESSION AND THE HIGH COURT
On 28th July, 2015, Suresh was convicted u/s 304, 326, 354 r/w 34 and was sentenced to
3 years imprisonment by Court of Session and Siddhart’s case was remanded back to JJB
and he was sent to a special home for a maximum period of 3 years. Both preferred appeal
in High Court, but both the petitions were rejected by High Court. Later in cross appeal
which was filed by the prosecution against Suresh and Siddhart, it was contented that both
culprits should be convicted u/s 302 instead of 304 and this contention was accepted by
High Court and Suresh was ordered to the sentenced for a period of 10 years.
V
MATTER REACHES THE SUPREME COURT
Suresh & Siddhart approached the Apex Court of Industan by way of Special Leave Petition.
Suresh challenged the proceeding of the Session Court as he was minor and also raised
question regarding the justification of the order passed by the Session Court & the High
Court, rejecting the conduct of the Bone Test for determining his age. Siddhart raised appeal
against the judgment & order passed by the Juvenile Board, Session Court & the High
Court which was passed solely on the basis of his presence in the exhibition. A PIL is
also filed by WTH Foundation, an NGO challenging the constitutional validity of the
Juvenile Justice (Care & Protection of Children Act), 2014.

BY
ISSUES RAISED
ISSUE I
WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION

OF CHILDREN) ACT, 2014 IS CONSTITUTIONAL OR NOT ?
ISSUE II
WHETHER THE SESSION’S COURT AND HIGH COURT WERE

JUSTIFIED IN REJECTING THE TEST FOR DETERMINATION OF
SURESH’S AGE OR NOT ?
ISSUE III
WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL THE

CHARGES LEVELED AGAINST HIM OR NOT ?

BY
SUMMARY OF ARGUMENTS
I. WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2014 IS CONSTITUTIONAL OR NOT?
 It is submitted that the impugned Act seeks to create a fictional classification between
the children belonging to age group of 16-18 years on the basis of degree of crime
"allegedly" committed by them.
 It is submitted that under the Industan law a person under the age of 18 is not allowed
to vote, is considered minor for entering into a contract, a girl of age less than 18 cannot
give consent for sexual relationships, a child of age less than 18 cannot marry, yet, by
the amended act, that child can be tried as an adult and after a preliminary assessment,
the child shall be presumed to have the knowledge and understanding of the alleged
crime he has committed. The counsel submits that such a scenario would be travesty of
Justice.
 The law of juvenile justice stands on the principles of restorative and reformative justice
and any digression from the same would be detrimental to the right of the children and
in contravention with the principle as enunciated under Article 15(3) of the Constitution
of Industan.
 The counsel humbly submits that the impugned amendment is against the UN
Convention on the Rights of the Child (hereinafter as UNCRC) which is a
comprehensive and internationally binding agreement on the rights of children. It was
adopted by the United Nations General Assembly in 1989.
 The Petitioner submits that our country accepts the international convention of keeping
18 years as the age of the child and the same is reflected in various laws where the age
of child was kept at 18 years such as Contract Act, Motor Vehicles Act, etc.

BY
II. WHETHER THE SESSION’S COURT AND HIGH COURT WERE JUSTIFIED IN
REJECTING THE TEST FOR DETERMINATION OF SURESH’S AGE OR NOT?
 It is submitted before this Hon’ble Court that the bone age of a child indicates his/her
level of biological and structural maturity. In the present case, the plea to conduct a
bone test or any other allied test for the determination of the age of Suresh was rejected
by the Sessions & High Court. The reason for such decision to reject the above
mentioned tests was due to the inconclusiveness of these kinds of tests.
 This is an insufficient ground for rejecting to conduct the Age Determination Test. It is
a well-accepted fact in the precedents of our Indian Judiciary that the last resort for age
determination of a juvenile is the Bone Test i.e. Ossification Test. The "Age
determination inquiry" conducted under Section-94(2) of the JJA, 2014 enables the
court to seek evidence and in that process the court can obtain the matriculation or
equivalent certificates, if available. The petitioner asserts that Suresh had time and
again submitted before various lower courts the petition for determination of his age,
and time and again it was denied to him.
III. WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL THE CHARGES

LEVELED AGAINST HIM OR NOT ?
It is humbly submitted that the evidence presented at the trial stage are insufficient and
inconclusive to show that Siddhart is indeed guilty of the aforementioned offences and
the evidence must be reviewed de novo. The circumstantial evidence put forward against
accused are inconclusive in nature as none of the existing circumstances are concrete
enough to prove the factum probandum. The available chain of circumstances fails to
prove the proposed hypothesis of Siddhart’s guilt. The statement of S.K. Kumar is
erroneous and lacks the requisite probative value and is not a substantial evidence under
law. Thus the proceedings in lower courts were based on wrong and illogical inferences
and evidences which do not prove case beyond reasonable doubt and hence are liable to
be quashed.

BY
ARGUMENTS ADVANCED
I. WHETHER THE JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2014 IS
CONSTITUTIONAL OR NOT?
1. It is respectfully submitted that the impugned act is violating Article 14 and 15(3) of
Constitution of Industan. Moreover it seeks to create a fictional classification between the
children belonging to age group of 16-18 years on the basis of degree of crime “allegedly”
committed by them.
2. It is humbly submitted that the new amendment act incorporated a Juvenile Justice board
under section 15 of the act which will have an arbitrary power to conduct a preliminary
injury to determine whether a juvenile offender is to be sent for rehabilitation or be tried as
an adult. It is submitted that such classification does not have any nexus with the objective
sought to be achieved.
3. Mainly, as it attempts the impossible by permitting the board to conduct a case by

determining of maturity, before deciding whether to transfer the juvenile or not. Therefore,
the impugned Act violates the presumption of innocence enshrined in the constitution.
Secondly, that the impugned act violates the mandates of equal treatment of all juveniles
within a separate juvenile justice system, as required by international standards of juvenile
justice and the equality code in the constitution.
4. That the impugned Act creates such a system which establishes a link between the gravity
of the offence committed and the maturity of the child, defeating the objective of juvenile
justice law as it lets the crime overshadow the child.1
1
Ved Kumari, Justice System in India: From Welfare to Rights (2010) (When the nature of the crime is serious,
the criminal justice system treats the child as monstrous and incapable of rehabilitation and therefore equates

BY
5. That the bill requires the Juvenile Justice board to arbitrarily assess the capabilities prior to
even establishment of guilt. This assessment is in essence a sentencing decision that is
arrived at before the guilt is established. Therefore the completely violating the
presumption of innocence. A central tenet of Juvenile Justice as well as criminal justice
system. Further the act envisages to accurate assessment of mental capacity which is
impossible and will lead to an arbitrary transfer. As time and again it has proved that there
exists no scientifically accurate method to determine the maturity of an individual.2 Such
determination would exceed the limits of science. Therefore, applying the aforesaid the
decision taken erroneous and arbitrary.3
6. That under the ambit of Industan law a person under the age of 18 is not allowed to vote ,
considered a minor to a contract, a girl of age less than 18 years cannot give consent for
sexual relationship, a child of age less than 18 cannot marry, yet by the virtue of amended
act , that child can be treated as an adult and after the preliminary assessment the child shall
be presumed to have the knowledge and capacity of the alleged crime he has committed.
Therefore, the counsel humbly submits that such a scenario will lead to travesty of justice.
A. THE ACT IS IN CONTRAVENTION WITH THE ARTICLE 14 AND 15(3) OF

THE CONSTITUTION OF INDUSTAN.
A.1. THAT THE ACT VIOLATES ARTICLE 14 OF THE CONSTITUTION OF

INDUSTAN
7. The concept of equality is guaranteed under Article 14 of the constitution of Industan. And
at various courts the hon’ble SC held the paramount importance of Article 14. It states that
“Equality is the basic feature of the Constitution of Industan and any treatment of equals
unequally or unequal as equals will be violation of basic structure of the constitution of
Industan.”4
them to adults. This is described as the crime overshadowing the child, as “the psychological, social and legal
construction of ‘childhood’ can be lost, understated, ignored or overshadowed by the notion of ‘crime’.”)
2
A study released by Elizabeth S. Scott and Laurence Steinberg, former members of the John and Catherine T.
MacArthur Foundation Research Network on Adolescent and Juvenile crime.
3
Richard J. Bonnie & Elizabeth S. Scott, The Teenage Brain: Adolescent Brain Research and the Law, 22(2)
Current Directions in Psychological Science 161 (2013); Rakshit, supra note 22; Supra note 11, ¶10.5.
4
M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260.

BY
8. It is humbly submitted that the classification of Juvenile from age 16 to 18 as adult is a

discrimination of equals5 unequally and therefore violates the basic tenet structure of
constitution of Industan.
A.2. CLASSIFICATION LACKS INTELLIGIBLE DIFFERENTIA

9. That the hon’ble SC in case Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &
Others has laid down a guidelines for reasonableness classification which states that :
i. The classification must be founded on an intelligible differentia.
ii. That the differential must have a rational relation to the object sought to be achieved by
the statute in question.
10. That the guidelines laid down in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar & Others6 states that the classification proposed should be rational and shall
have a nexus with the object sought to achieved whereas, in the said act the classification
defeats the very objective of the legislation which sought to rehabilitate the children conflict
with law and not to give a retributive punishment to them.
11. That the preamble of the Juvenile Justice Bill 2014 states that it seeks to consolidate and
amend the law relating to children alleged and found to be in conflict with law and children
in need of care and protection by catering to their basis needs through proper care ,
protection , development , treatment , social , re-integration , by adopting a child friendly
approach in the adjudication through processes provided and institutions and bodies
established.7
12. And thus none of this objectives can be achieved by sending children alleged and found to
be in conflict with law to “places of safety” and or an adult criminal justice system.
Additionally the transfer of children will deprive these juveniles not only a protection and
treatment and would amount sentencing them to physical and sexual abuse by adult under
trials and convicts and leaving them with no option but to pursue a carrier in crimes.8
5
Juvenile Justice Act 2014.
6
AIR 1958 SC 538.
7
Juvenile Justice Act.
8

BY
A.3. THAT THE ACT VIOLATES ARTICLE 15(3) OF THE CONSTITUTION OF

INDUSTAN
13. It is humbly submitted that the imagined act is in violation of article 15(3) of the
constitution of Industan.9 It is submitted that the stated subject of the act is for the welfare
of children. However, the amendment passed makes the legislation draconian and against
the idea of welfare of citizen. Hence, there is no need to subject the children to different or
adult judicial system as it will go against 15(3) of the constitution of Industan.
14. It is humbly submitted that the idea behind treating a certain age group as children is to
protect the most venerable section of the society. Therefore in case a crime is committed
by them, the endeavour of the state should be reformative rather than punitive or worse
retributive. The law of juvenile justice stands on the principle of restorative and reformative
justice and any digression from the same would be detrimental to the right of the children
and in contravention with principle as enunciated under Article 15(3) of the Constitution.
B. THE ACT IS IN CONTRAVENTION WITH THE UN CONVENTION ON THE

RIGHTS OF THE CHILD
15. It is humbly submitted that the imagined act is contravening the provision of UN
Convention on the right of the child herein after UNCRC which is a comprehensive and
Internationally binding Agreement on the right of children with India being a one of the
signatory among other nations.
16. That the said convention was adopted by the United Nation general assembly on 1989. The
definition of child as envisaged in Article 1 states: "For the purposes of the present
Convention, a child means every human being below the age of eighteen years unless under
the law applicable to the child, majority is attained earlier."10
17. The object clause of the present amendment states thus:
9
Article 15(3), Constitution of Industan, 1949 - Nothing in this article shall prevent the State from making any
special provision for women and children.
10
http://childlineindia.org.in/United-Nations-Convention-on-the-Rights-of-the-Child.htm

BY
 "And whereas, the Government of India has acceded on the 11th December, 1992
to the Convention on the Rights of the Child, adopted by the General Assembly of
United Nations which has prescribed a set of standards to be adhered to by all State
parties in securing the best interest of child."11
18. That the mention of the UNCRC on the object of the impugned amendment is a disguise
which seeks to erode the very definition of child as envisaged in the UNCRC. The counsel
submits that our country accepts the international convention of keeping 18 years as the
age of the child and the same is reflected in various laws where the age of child was kept
at 18 years such as Contract Act, Motor Vehicles Act, etc.
19. In those legal systems recognizing the concept of the age of criminal responsibility for
juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in
mind the facts of emotional, mental and intellectual maturity.12
20. The age of eighteen has been fixed on account of the understanding of experts in child
psychology and behavioural patterns that till such an age the children in conflict with law
could still be redeemed and restored to mainstream society, instead of becoming hardened
criminals in future. There are, of course, exceptions where a child in the age group of
sixteen to eighteen may have developed criminal propensities, which would make it
virtually impossible for him/her to be re-integrated into mainstream society, but such
examples are not of such proportions as to warrant any change in thinking, since it is
probably better to try and re-integrate children with criminal propensities into mainstream
society, rather than to allow them to develop into hardened criminals, which does not augur
well for the future.13
21. Further, the Child shall be forced to face trial which will have negative effect on the
psychology of the child. Under the previous law, if a child, in conflict with law, between
the ages of 16-18 years was found to have committed an offence by the Juvenile Justice
Board, there was a range of rehabilitative dispositions that could be passed by the Juvenile
11
http://cara.nic.in/PDF/JJ%20act%202015.pdf, Page 1
12
Subramanian Swamy v. Raju, (2014) 8 SCC 390.
13
Salil Bali v Union of India, (2013) 7 SCC 705.

BY
Justice Board. These rehabilitative dispositions included admonition, community service,

imposition of a fine, probation, group counselling and an extreme measure of deprivation
of liberty by way of placement of the child in a special home for three years.
22. United Nations Convention on the Rights of the Child, 1990 read with the concluding
Resolution of the Committee on Child Rights (constituted under the UN Convention) of
the year 2000 and the General Resolution of the year 2007 clearly contemplate the MACR
as 18 years and mandates member States to act accordingly. The UN Standard Minimum
Rules for the Administration of Juvenile Justice (“the Beijing Rules”) were adopted by the
General Assembly of the United Nations in 1985. Rule 2.2(a) defines a juvenile as a child
or young person who, under the respective legal system, may be dealt with for an offence
differently than an adult. Rule 4.1 set out below mandates Member States to refrain from
fixing a minimum age of criminal responsibility that is too low, bearing in mind the facts
of emotional, mental and intellectual maturity.
23. Lastly, the counsel herein submits that the teenager is not adult and he/she is incapable of
fully understanding the consequences of his actions or omissions. Furthermore, it is
submitted before this Hon’ble court that in the present case the act in question is in
contravention with the Constitutional provisions of the Constitution of Industan as well as
it is also not in consonance with the principles of the UNCRC.
II. WHETHER THE SESSION’S COURT AND HIGH COURT

WERE JUSTIFIED IN REJECTING THE TEST FOR
DETERMINATION OF SURESH’S AGE OR NOT?
24. It is submitted that the bone age of a child indicates his/her level of biological and structural
maturity. By the age of 18 years, bone age cannot be computed from hand & wrist
radiographs, therefore the medial end of the clavicle is used for bone age calculation in
individuals aged 18 - 22 years. In the present case, the plea to conduct a bone test or any
other allied test for the determination of the age of Suresh was rejected by the Sessions &
High Court. The reason for such decision to reject the above mentioned tests was due to

BY
the inconclusiveness of these kinds of tests.14 This is an insufficient ground for rejecting to
conduct the Age Determination Test.
25. The Juvenile Justice (Care and Protection of Children) Act, 2014 states that,
 In case, the Committee or the Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age determination, by seeking
evidence by obtaining —
i. The date of birth certificate from the school, or the matriculation or equivalent
certificate from the concerned examination Board, if available; and in the
absence thereof;
ii. The birth certificate given by a corporation or a municipal authority or a
panchayat;
iii. And only in the absence of (i) and (ii) above, age shall be determined by an
ossification test or any other latest medical age determination test conducted on
the orders of the Committee or the Board15”
26. It is a well-accepted fact in the precedents of our Indian Judiciary that the last resort for age
determination of a juvenile is the Bone Test i.e. Ossification Test. The "Age determination
inquiry" conducted under Section-94(2) of the JJA, 2014 enables the court to seek evidence
and in that process the court can obtain the matriculation or equivalent certificates, if
available. If there is an absence of both, matriculation or equivalent certificate and the date
of birth certificate from the school first attended, the court needs to obtain the birth
certificate given by a corporation or a municipal authority or a panchayat (not an affidavit
but certificates or documents). The question of obtaining medical opinion from a duly
constituted Medical Board arises only if the abovementioned documents are unavailable.
In case the exact assessment of the age cannot be done, then the court, for reasons to be
recorded, may, if considered necessary, give the benefit to the child or juvenile by
considering his or her age on lower side within the margin of two years.
14
Fact Sheet, ¶11, Line 7.
15
Section 94, Juvenile Justice (Care and Protection) Act. 2014.

BY
27. There have been cases where the criminal justice system has not recognized an accused to
be a juvenile, and the claim of juvenility is raised for the first time before the Supreme
Court. In the case of Gopinath Gosh v. State of West Bengal16 the question to determine the
age of the accused was raised for the first time in the case before the Supreme Court. The
Apex Court instructed the Magistrate to conduct an inquiry about age when it appeared that
the accused was under 21 years of age at the time when he committed the offence. As a
result, the accused was found to be a juvenile at the time of commission of the offence. The
Apex court observed that, “If necessary, the Magistrate may refer the accused to the
Medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy
evidence about age17.”
A. THE BONE TEST IS A RELIABLE SOURCE

28. The petitioner asserts that Suresh had time and again submitted before various lower courts
the petition for determination of his age, and time and again it was denied to him. As per
experts that there can be error of about two years in the age determined by the ossification
test, but it is still more reliable than ascertaining the age on mere appearance basis. In case
of doctor’s opinion regarding age of petitioners, benefit of plus/minus two years to be
given18.
29. On request of the petitioner the Magistrate had directed the Superintendent of sub-Jail to
send ossification report. On the basis petitioner’s age was held not below 18 years. Courts
below had wrongly relied on the report without giving margin of 2-3 years. If two views
were possible regarding age of petitioner, one favourable to him should be accepted. It was
obligatory on part of Magistrate to hold enquiry and determine the age after providing
opportunity of hearing to the parties19.
B. THE LOWER COURT IS NOT JUSTIFIED FOR DENYING THE

OSSIFICATION TEST AS A RIGHT TO SURESH
16
AIR 1984 SC 237.
17
Gopinath Ghosh v. State of Bengal, AIR 1984 SC 237.
18
Shehzad v. State (NCT of Delhi), 2006 (3) JCC 1580.
19
Ummeed Singh v. State of M.P., 2007 (57) AIC 849 (MP) (Gwalior Bench).

BY
30. The petitioner asserts that, the order passed by the Session Court on the ground of
‘inconclusiveness of these kinds of tests20’ is an insufficient ground for rejecting to conduct
age ascertainment test. The petitioner asserts that, the accused i.e., Suresh had time and
again submitted before various lower courts the petition for determination of his age, and
time and again it was denied to him.
31. Ossification test is performed by radiological examination of several main joints, and the
opinion of age is based on the extent of fusion of the bones21.The foundation of the Indian
criminal justice system is that any doubt or ambiguity should support the accused. Hence,
in borderline cases the accused is to be treated as a juvenile. Moreover, the Supreme Court
has held that the approach of the courts should not be hyper-technical whilst determining
juvenility22.
32. It is submitted that the bone age of a child guides his/her level of biological and structural
maturity. That the act envisages due diligence and prudent approach to deter mine the
juvenility of child and therefore in order to prevent any erroneous or arbitrary decision from
Juvenile Board, the act had inserted Section 15 proviso23 and section 94 which laid down a
comprehensive guideline determine the age of child.24
Furthermore, the order passed by the court after preliminary assessment can be challenged
to session court under Section 101(2)25 of Juvenile Justice Act 2014, which envisage an
assistive from psychologists and medical expert.
33. However, in the case of Suresh no such procedure was followed moreover his case was
rejected due to lack of evidence of age which makes this case perfectly deem fit for
determination of age under section 15 and 94 of Juvenile Justice Act.
20
Fact Sheet, ¶11, Line 7.
21
Jaya Mala vs. Home Secretary, Govt. Of J&K, AIR 1982 SC 1297.
22
Bhoop Ram vs. State of U.P. AIR 1989 SC 1329.
23
Section 15 of Juvenile Justice Act.
24
Section 94 of Juvenile Justice Act.
25
(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a
heinous offence under section 15 of the Act, before the Court of Sessions and the Court may, while deciding
the appeal, take the assistance of experienced psychologists and medical specialists other than those whose
assistance has been obtained by the Board in passing the order under the said section.

BY
III. WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL

THE CHARGES LEVELED AGAINST HIM OR NOT?
34. In the instant matter, the lower courts have convicted Siddhart of the offences of Murder
of Shubhangi and Shubham and outraging the modesty of Shubhangi u/s 302, 304, 326 and
354 of the Industan Penal Code, 1860. With the evidence presented at the trial stage, there
are insufficient and inconclusive evidence to show that Siddhart (hereinafter the “accused”
for contention III) is indeed guilty of the aforementioned offences and an appeal has been
filed for the review of evidence de novo.
A. THE CIRCUMSTANTIAL EVIDENCES ARE INCONCLUSIVE IN NATURE.
35. The petitioners humbly submit before the Hon’ble Court that the circumstantial evidence
put forward against accused are inconclusive in nature. As Jaffee says, Propositions are true
or false; they are not "probable".26 In court as elsewhere, the data cannot 'speak for itself'.
It has to be interpreted in the light of the competing hypotheses put forward and against a
background of knowledge and experience about the world. 27 In the present case, the
plausibility of the hypothesis put forward against accused at the trial stage is inconclusive
in nature. The circumstances encompassing situation at hand fail to prove the factum
probandum. The rules as laid down by Wills on Circumstantial Evidence, other writers on
the subject have repeated, and are as follows:-
i. The circumstances alleged as the basis of any legal inference must be strictly
and indubitably connected with the factum probandum.
ii. The onus probandi is on the party who asserts the existence of any fact which
infers legal accountability.28
36. The circumstantial evidence that accused had hatred towards Shubham and Shubhangi and
they had a fight few days prior to the omission are illogical as they derive mere imaginary
26
Leonard Jaffee, „Of Probativity and Probability' 46 University of Pittsburgh, (Law Review 924, 934, 1985).
27
R. v. Prater, 1960 2 Q.B. 464.
28
J. F. B., The ALR, Vol. 16, No. 12, New Series Volume 7 (Oct. - Nov., 1868), pp. 705-713.

BY
hypothesis against accused.29 Thus the available chain of circumstances fails to prove the
proposed hypothesis that the accused murdered Shubham and Shubhangi and at the same
time fails to exclude any other possible hypothesis. As observed by the Supreme Court of
India in Bakhshish Singh v State of Punjab30, “in a case resting on circumstantial evidence,
the circumstances put forward must be satisfactorily proved and those circumstances should
be consistent only with the hypothesis of the guilt of the accused. 31 Again those
circumstances should be of a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved.” It would be most appealing
if the evaluation of evidence in a criminal case could lead to a decision through a strictly
logical process of consecutive steps.32 There must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion consistent with the innocence of the
accused33 and must show that in all human probability the act must have been done by the
accused34.
37. It is humbly pleaded before the apex court that is submitted that none of the existing
circumstances are concrete enough to prove the factum probandum, as the trial court arrived
at its conclusion relying on the illogical and irrelevant circumstantial evidences and the
accused is entitled to the benefit of doubt.35
B. S.K. KUMAR’S STATEMENT CANNOT BE RELIED UPON.

38. The Petitioner submits that the testimony of S.K. Kumar is erroneous and lacks the requisite
probative value. As Section 59 defines oral evidence, which includes all the statements
which the court permits or requires to be made before it by witness.36 In the present case
the statement of S.K. Kumar was recorded by investigation officer, as per provisions under
section 161 of CrPC read together with sec.157 of evidence act, the statement is not a
29
Victor v. Nebraska, 511 U.S. 1994; People v. Jones, 27 N.Y.2d 222 1970.
30
Bakhshish Singh v State of Punjab, A.I.R. 1971 S.C. 2016 3 S.C.C. 182.
31
Harendra Narain Singh v. State of Bihar, A.I.R. 1991 S.C. 1842.
32
Deonandan Mishra v. State of Bihar, A.I.R. 1955 2 S.C.R. 570; Laxman Naik v. State of Orissa, A.I.R. 1995 S.C.
1387; Sharad v. State of Maharashtra, A.I.R. 1984 S.C. 1622.
33
Bakshish Singh v. State of Punjab, A.I.R. 1971 S.C. 2016; Ganpat v. State, 1987 Cr LJ 6 Del; State of H.P v.
Diwana, 1955 Cr LJ 3002.
34
Paramjeet Singh v. State of Uttarakhand, A.I.R. 2011 S.C. 200.
35
Budhwa v. State of M.P, A.I.R. 1991 S.C. 4.
36
B M Prasad & Manish Mohan, The Law of Evidence 387 ¶1 (25th Edition Ratanlal & Dhirajlal 2013).

BY
substantive evidence.37 In the case of Sewaki v. State of H.P38, it was stated that the
statement given to police officer during investigation is neither given on oath nor is it tested
by cross examination and hence is not substantive evidence.
39. The facts state that the omission of crime occurred between 8:30 p.m. to 9:30 p.m.39
Statement of S.K. Kumar doesn’t confirms about the time when he saw accused sneaking
out of the Basement, which is a legitimate ground for shaking the credit of the witness.40
As Under the provisions of Sec. 156 of Industan evidence act it is a well settled law that
such statements should not be corroborated unless the statement is credible and disposes
other relevant facts such as time when the fact occurred. 41 To prove the guilt of accused it
must be proved that he was at crime scene at the time of omission not that he was present
at the exhibition. Hence it is an immaterial evidence and accused is entitled to benefit of
doubt42 as mere presence of accused in the exhibition is not a ground to prove him guilty,43
unless the charges are proved beyond reasonable doubt on the basis of clear, cogent,
credible or unimpeachable evidence.44
40. As per the provisions of Section 9 of the evidence act, it was stated by the Apex court in
the case of Viseswaran v. state, 2003 Cri LJ 2548 SC45 that the identification of the accused
must be done either in identification parade or in the court as it is an important evidence
and must be presented with due care. In the present case no such measure were taken and
hence the Statement of S.K. Kumar is not admissible. The identification parade is an
essential measure to be taken for proper identification of the culprit so as to test the veracity
of the witness on the question of his capability to identify, the unknown person.46 The court
in case of Heer v. State of Rajasthan,47 it is desirable to conduct test identification parade
37
HazariLal v. State(Delhi Admn.), A.I.R. 1980 S.C.C. (Cri) 458; Gaisuddin v. State of Assam, A.I.R. 1977 Cri LJ
1512.
38
Sewaki v. State of H.P, A.I.R. 1981 Cri LJ 919.
39
¶ 5 fact sheet.
40
Dial Singh Narain Singh v. Rajapal Jagan Nath, A.I.R. 1969 P&H 350.
41
B M Prasad & Manish Mohan, The Law of Evidence 788 (25th Edition Ratanlal & Dhirajlal 2013).
42
Mangulu Kanhar v. State of Orissa, A.I.R. 1995 Cr LJ 2036.
43
Shangara v. State of Punjab, A.I.R. 1995 S.C.C. (Cr.) 163.
44
Ashish Batham v. State of M.P., A.I.R. 2002 S.C. 3206
45
Viseswaran v. State, A.I.R. 2003 Cri LJ 2548 S.C.
46
Kanan v. State of Kerala, A.I.R. 1979 Cr LJ 919; Chonampra v. State of Kerala, A.I.R. 1979 S.C. 1761.
47
Heer v. State of Rajasthan, A.I.R. 2007 S.C. 2425.

BY
to eliminate possibility of errors in identification of culprit. The Rules adopted under the
English Police and Criminal Evidence Act, 1984 also recommends identity parade.
41. The petitioner humbly states by bare reference to the facts of the case and medical reports
which expressly states that out of the four culprits two pinned Shubhangi, while other two
were trying to outrage her modesty by tearing her clothes. Therefore all four of the culprits
were in physical contact from Shubhangi. The medical evidence and finger print reports
make it clear that his finger prints were not recovered from the body of Shubhangi. Which
makes it evident that he was not among the four culprits. The oral evidence presented by
S.K. Kumar are inconsistent with the medical evidence and hence should not be relied
upon.48
42. Therefore it is humbly contended before the Hon’ble court that the golden thread which
runs through the web of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the accused should be adopted.
This view has been reiterated by the Supreme Court in a series of decisions thereafter. State
of Goa v. Pandurang Mohite49 , Murugan v. State50 are a few among them. And hence the
criminal proceedings initiated against Siddhart in lower courts were based on wrong and
illogical inferences and evidences which do not prove case beyond reasonable doubt and
hence are liable to be quashed.
48
Ismail Ahmed v. MominBibi, A.I.R. 1941 ¶11;Jamadar Singh v. E., 21 (854)
49
State of Goa v. Pandurang Mohite, A.I.R. 2009 S.C. 1066.
50
Murugan v. State, A.I.R. 2009 S.C. 72.

BY
PRAYER
Whereof in the light of facts of the instant case, written pleadings and authorities cited, it is
humbly prayed before this Hon'ble Supreme Court that it may be pleased to hold, adjudge and
declare:
1. That the Juvenile Justice (Care and Protection of Children) Act, 2014 is Unconstitutional.
2. That the Ossification Test of Suresh be conducted for the determination of his age.
3. That Siddhart is not guilty under §§ 302, 326, 354 r/w § 34 of IPC, 1860.
Pass any other order, which the court may deem fit in light of the facts of the case, evidences
adduced and justice, equity and good conscience.
Sd/-
Counsels for the Petitioner

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TC-01

INTEGRATED SCHOOL OF LAW GHAZIABAD

IN THE HON’BLE SUPREME COURT OF INDUSTAN

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019

UNION OF INDUSTAN ………RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUSTAN)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2019

UNION OF INDUSTAN ……….RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUSTAN)

MEMORIAL ON BEHALF OF THE PETITIONER

I. WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF

II. WHETHER THE HIGH COURT AND SESSION COURT WERE

III. WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL THE

MEMORIAL FOR PETITIONER Page | 2

S. No. ABBREVIATIONS FULL FORMS

MEMORIAL FOR PETITIONER Page | 3

BOOKS ON CONSTITUTIONAL LAW:

1. H.M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law

BOOKS ON INDIAN EVIDENCE ACT:

BOOKS ON INDIAN PENAL CODE:

1. BRYAN A. GARNER, BLACK’S LAW DICTIONARY (8th ed. 2001).

INTERNATIONAL COVENANTS REFERRED:

1. UNITED NATIONS STANDARD MINIMUM RULES FOR THE

MEMORIAL FOR PETITIONER Page | 4

2. UNITED NATIONS CONVENTION ON RIGHTS OF CHILD, 1992.

1. CRIMINAL LAW JOURNAL, AUGUST 2015.

1. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015.

 Ashish Batham v. State of M.P., A.I.R. 2002 S.C. 3206.

MEMORIAL FOR PETITIONER Page | 5

 Jaya Mala v. Home Secretary, Govt. Of J&K, AIR 1982 SC 1297.

MEMORIAL FOR PETITIONER Page | 6

“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

MEMORIAL FOR PETITIONER Page | 7

MEMORIAL FOR PETITIONER Page | 8

MEMORIAL FOR PETITIONER Page | 9

WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION

WHETHER THE SESSION’S COURT AND HIGH COURT WERE

WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL THE

MEMORIAL FOR PETITIONER Page | 10

I. WHETHER THE JUVENILE JUSTICE (CARE AND PROTECTION OF

MEMORIAL FOR PETITIONER Page | 11

III. WHETHER SIDDHART SHOULD BE ACQUITTED OF ALL THE CHARGES

MEMORIAL FOR PETITIONER Page | 12

I. WHETHER THE JUVENILE JUSTICE (CARE AND

3. Mainly, as it attempts the impossible by permitting the board to conduct a case by

MEMORIAL FOR PETITIONER Page | 13

A. THE ACT IS IN CONTRAVENTION WITH THE ARTICLE 14 AND 15(3) OF

A.1. THAT THE ACT VIOLATES ARTICLE 14 OF THE CONSTITUTION OF

MEMORIAL FOR PETITIONER Page | 14

8. It is humbly submitted that the classification of Juvenile from age 16 to 18 as adult is a

A.2. CLASSIFICATION LACKS INTELLIGIBLE DIFFERENTIA

MEMORIAL FOR PETITIONER Page | 15

A.3. THAT THE ACT VIOLATES ARTICLE 15(3) OF THE CONSTITUTION OF

B. THE ACT IS IN CONTRAVENTION WITH THE UN CONVENTION ON THE

17. The object clause of the present amendment states thus:

MEMORIAL FOR PETITIONER Page | 16

MEMORIAL FOR PETITIONER Page | 17