178

10TH NLUO - INTRA UNIVERSITY MOOT COURT COMPETITION, 2018

BEFORE THE HON’BLE SUPREME COURT OF INDIA

In the matter between

RAMBO
(PETITIONER)

v.

UNION OF INDIA
(RESPONDENT)

SUBMISSION BEFORE THE HON’BLE SUPREME COURT OF INDIA UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA, 1950

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

MEMORIAL for PETITIONER TABLE OF CONTENTS

TABLE OF CONTENTS

INDEX OF AUTHORITIES.............................................................................................................II
LIST OF ABBREVIATIONS..........................................................................................................IV
STATEMENT OF JURISDICTION....................................................................................................V
ISSUES RAISED..........................................................................................................................VI
STATEMENTS OF FACTS...........................................................................................................VII
SUMMARY OF ARGUMENTS......................................................................................................IX
BODY OF ARGUMENTS................................................................................................................1

1. Section 29 and Section 30 of the POCSO, 2012 are not violative of fundamental rights
of Mr. Rambo.........................................................................................................................1

1.1. Section 29 and section 30 are violative of article 14 of constitution of India.........1

1.2. Section 29 and section 30 are violative of article 20(3) of constitution of India.....1
1.3. Section 29 and section 30 are violative of article 21 of constitution of India.........4

2. Mr. Rambo can be permitted to conduct voluntary polygraph / Narco-analysis/ brain

mapping test in order to prove his innocence.........................................................................6

2.1. Petitioner (Rambo) should be allowed because he voluntarily giving consent to

the Scientific test................................................................................................................6
2.2. Voluntary Evidence with the help of Narco Analysis is admissible in courts.........7

PRAYER......................................................................................................................................X

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MEMORIAL for PETITIONER INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Cases
Ajay Hasia v. Khalid Mujib (1981)1 SCC 722..........................................................................1
Ankul Chandra v. Union of India (1996) 6 SCC 354................................................................4
Ashraf Ali v. Emperor MANU/WB/0218/1917.........................................................................5
Bhaba Nanda Sharma v. State of Assam MANU/SC/0078/1977..............................................2
Brij Mohan lal v. Union of Indian (2002) 5 SCC 1...................................................................5
Dahyabhai Chhaganbhai Thakkur v. State of Gujarat, AIR (1964) SC 1563............................5
Dhanwantrai Balwantrai Desai v. State of Maharashtra AIR (1964) SC 557............................2
K. Joseph Augusthi v. Narayanan AIR (1964) SC 1552............................................................2
Krishna Janardhan Bhat v. Dattatreya G. Hedge (2008) Crl Lj 1172........................................5
Laxmi Khandsari v. state of Uttar Pradesh AIR (1981) SC 873, 891........................................1
Maneka Gandhi v. Union of India, (1978) 1 SCC 248..............................................................4
Mullaney v. Wilbur, 421 U.S. 684 (1975).................................................................................4
Nandini Satpati v. P.L. Dani (1978) 2 SCC 424........................................................................3
Noor Aga v. State of Punjab and Anr (2008) 16 SCC 417........................................................5
P. Sanjeeva Rao v. State of A.P., (2012) 7 SCC 56(63)............................................................5
Purshottam Swaroop Chand Soni v. State of Gujarat (2007) 3 GLR 2088................................7
Queen- Empress v. Ramana MANU/TN/0035/1889.................................................................5
Ranjiitsing brahmajeetsing sharma v. State of Maharashtra (2005) 5 SCC 294........................4
Rattiram v. State of M.P. through inspector of police, AIR (2012) SC 1485(1495).................5
S.D. Soni v. State of Gujarat AIR (1991) SC 917......................................................................2
Sasntokhben Sharmanbhai Ladeja v. State of Gujarat 2007(4) Cri LJ 4566.............................6
Selvi and ors. v. State of Karnataka (2010) 7 SCC 263.............................................................7
Selvi and ors. v. State of Karnataka (2010) 7 SCC 263.............................................................6
Sidhartha Vashist v. State (NCT of Delhi) (2010) 6 SCC 1......................................................3
State of A.P. v. Challa Ramakrishna Reddy AIR (2000) SC 2083............................................4
State of Madhya Pradesh v Baldeo Prasad (1961) 1 SCR 970..................................................1
State of Rajasthan v. Jasveersingh Jat (2018) 3 RLW 1935(Raj.).............................................6
State v. Ashok Amar Singh, (1973) Current Law Journal 687..................................................2
Sunil Batra v. Delhi Administration (1978) 4 SCC 494............................................................4
Union of India v Tulsiram Patel (1985) 3 SCC 398...................................................................1
Yogesh Maral v. state of Maharashtra (2015) SCC Bom 4928.................................................2

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MEMORIAL for PETITIONER INDEX OF AUTHORITIES

Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.......................................4

Statutes
Protection of children from sexual offence Act, 2012...............................................................1
§ 27 of Indian Evidence Act.......................................................................................................7
§ 315 Criminal Procedure Code, 1973.......................................................................................6

Other Authorities
Article 14 of The International Covenant on Civil and Political Rights, 1966 provides that,
“Every one charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.”....................................................................................2
Law Commission of India, 180th Report on Article 20(3) of the Constitution of India and the
Right to silence, (May, 2002) p.7...........................................................................................3

Books
Durga Das Basu, Commentary on The Constitution of India, 2008, 8 th edn, Lexis Nexis, 2193
................................................................................................................................................3
Glanville Williams, The Proof of Guilt, 1963,3rd edn.,(London: Stevens & Sons, ), p.37.......2
H.M. Seervai, Constitutional Law of India, 4th edn. 2010 Vol. 2, Universal Law Publishing
Co. Pvt. Ltd., 970...................................................................................................................4
Ramanatha Aiyer ‘Advanced law Lexicon’ 2005 3rd edition Lexis Nexis, 2391.......................1
Sudipto Sarkar, V.R. Manohar, Law of Evidence, 2010, 17th edn, Lexis Nexis, 740................7

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MEMORIAL for PETITIONER LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

POCSO Protection of children from sexual

offences

CrPC Code of criminal procedure

AIR All India Reporter

Ors Others

Art. Article

FR Fundamental Rights

Sch schedule

V versus

i.e. That is (id est)

Pg. Page

§ Section

SC Supreme Court

HC High Court

Ibid. Ibidem (in the same place)

Amd Amendment

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MEMORIAL for PETITIONER STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of India under Article 32 of the
Constitution of India 1950.

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MEMORIAL for PETITIONER ISSUES RAISED

ISSUES RAISED

1. Whether Section 29 and Section 30 of the POCSO, 2012 are in violation of

fundamental rights of Mr. Rambo?
2. In alternative whether Mr. Rambo can be permitted to conduct a voluntary
polygraph/narco- analysis /brain mapping test in order to prove his innocence?

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MEMORIAL for PETITIONER STATEMENT OF FACTS

STATEMENTS OF FACTS

BACKGROUND

On 12.01.2017 Chintu a boy aged 11 years, made an allegation of sexual abuse against his
tutor Mr. Rambo (India citizen) who used to take his private classes for Mathematics. Chintu
came home crying loudly narrated the incident. Upon hearing the incident his parents rushed
to Mr. Rambo’s house and after reaching there started thrashing him. Upon hearing the
commotion, police arrived at the scene of crime and took away Mr. Rambo, Chintu’s parents
and Chintu to the Police station.
REGISTRATION OF OFFENCE
Thereafter the Police recorded the statements of Chintu’s parents, Mr. Hari and Mr. Raja
(who had seen Chintu leave Mr. Rambo’s house crying) and Chintu. Thereafter on the same
day an FIR was registered against Mr. Rambo under Section 6 of the Protection of Children
from Sexual Offenses Act, 2012 (“POCSO, 2012”) and Section 377 r/w Section 511 of the
Indian Penal Code, 1860 (“IPC, 1860”) and Mr. Rambo was taken into custody and has since
been in jail.
MEDICAL REPORT AND RECORDING THE STATEMENT OF THE VICTIM
The Medical report had been submitted to prosecuting agency i.e. Medicolegal Certificate
being MLC no. 98765/18 wherein he noted “There are no signs which suggests insertion of
penis or penis like object into anal cavity. Certain reddishness observed around the anal
cavity”. The statement is recorded of victim under 164 of CRPC and of other witness under
161 of CRPC and the witness had given their statement on the basis of narrated statement by
chintu and on the basis of him coming out crying from Mr. Rambo’s House. Thereafter
Charge sheet (Final Report under Section 173 of CrPC, 1973). The Ld. ASJ was pleased to
take cognizance of the offences as alleged within the said Final Report. Mr. Rambo pleaded
not guilty and the Ld. ASJ proceeded to frame charges against Mr. Rambo under Section 6
read with Section 5 of the POCSO, 2012 and under Section 377 and Section 511 of the IPC.
BAIL APPLICATION AND FURTHER APPEAL FOR SCIENTIFIC TEST
Mr. Rambo filed a bail application along with an application requesting the Prosecuting
Agency to conduct the Polygraph/Narco-analysis/Brain Mapping Test in order to rebut the
presumption against himself. The bail has been rejected and also the request for the test was
also turned down by the court. It may be noted, that since Chintu was in a private tuition,

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onlyhe narrated the alleged incident in his evidence, all the other witnesses only attested to
his conduct upon him leaving Mr. Rambo’s house.
WRIT IN THE SUPREME COURT
Thereafter realizing that on account of the presumption under Section 29 read with Section 30
it would be impossible to prove the negative that the alleged act had never taken place, Mr.
Rambo approached the Hon’ble Supreme Court of India under Article 32 of the Constitution
of India challenging the vires of Section 29 and Section 30 of the POCSO, 2012. Further, in
alternative Mr. Rambo prayed before the Hon’ble Supreme Court of India to allow him to
conduct a Polygraph/Narco-analysis/Brain Mapping Test in order to prove his innocence.

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MEMORIAL for PETITIONER SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

1. Section 29 and Section 30 of the POCSO, 2012 are in violation of fundamental rights
of Mr. Rambo.

It is humbly submitted to the Hon’ble Supreme Court that Sec. 29 and Sec. 30 is in
derogation of Fundamental rights i.e. Article 20(3), 21 and 14 of the Constitution of India, as
presumption of innocence is basic principle of Criminal Jurisprudence and also integral part
of Fundamental rights of the individual which is violated by the sections.

2. In Alternative Mr. Rambo can be permitted to conduct a voluntary Polygraph/

Narco Analysis/Brain Mapping in order to prove his innocence.

It is humbly submitted that the Scientific test should be allowed as it matter of right to adduce
evidence to prove his innocence and it is viable alternative available to him as he is voluntary
consenting to the Polygraph/Narcoanalysis/Brain mapping which can admissible piece of
evidence under section 27 of Indian Evidence Act.

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MEMORIAL for PETITIONER BODY OF ARGUMENTS

BODY OF ARGUMENTS

1. SECTION 29 AND SECTION 30 OF THE POCSO, 2012 ARE NOT VIOLATIVE OF

FUNDAMENTAL RIGHTS OF MR.RAMBO

(¶ 1.) It is humbly submitted before Hon’ble Supreme Court of India that Section 29 and
Section 30 of POCSO Act, 20121 are violative of the Constitution of India as these sections of
the act are in derogation with the Fundamental rights of Mr. Rambo under; [1.1] Article 20(3)
and [1.2] Article 21 and [1.3] Article 14 of the Indian Constitution. The submissions made is
in three-fold way.

1.1. Section 29 and section 30 are violative of article 14 of constitution of India

(¶ 2.) It is humbly submitted before the Hon’ble Supreme Court of India the Reversal of
burden of proof on the accused in order to prove his innocence be set aside as it is in violation
of Article 14. The Submission are made in order to prove that the section 29 and section 30
are arbitrary and unreasonable and there is no intelligible differentia.
(¶ 3.) Any law which is includes arbitrariness violative of Art. 14. 2 A rule is ambiguous if
there is rule to decide which all person or offences will fall within the definition. 3 Herein Sec.
30 of the POCSO Act arbitrary in deciding that for all the offences mental state is there to
commit the offence which on very first instance make the accused guilty.Principal of natural
justice is recognized as a part of Art. 14.4 This principle is automatically get attracted when
there is violation of Art. 14 of Constitution of India
(¶ 4.) Intelligible Differentia means difference capable of being understood. A factor which
distinguishes or in different state or class from another which understood. 5 Art. 14 forbid
class legislation. But the differentia adopted as the basis of classification must have rational
nexus with the object sought to be achieved by the statue in question. 6 Herein section 30 has
created the class with no intelligible differentia involved as in, the section 30 uses the word
any offence which includes all the offences, it does not consider the gravity of the offences,
so there is same punishment for all. Therefore, it is humbly contended it is violative of Art.
14.

1
Protection of children from sexual offence Act, 2012.
2
Ajay Hasia v. Khalid Mujib (1981)1 SCC 722.
3
State of Madhya Pradesh v. Baldeo Prasad (1961) 1 SCR 970
4
Union of India v. Tulsiram Patel (1985) 3 SCC 398.
5
Ramanatha Aiyer ‘Advanced law Lexicon’ 2005 3rd edition Lexis Nexis, 2391.
6
Laxmi Khandsari v. state of Uttar Pradesh AIR (1981) SC 873, 891.

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1.2. Section 29 and section 30 are violative of article 20(3) of constitution of India

(¶ 5.) The person who is alleged as an accused is innocent until proven guilty and it is also a
universal rule mentioned in ICPR.7 Presumption of innocence is the facet of the fundamental
right of right to self-incrimination i.e. 20(3) Of the Constitution of India, the object of article
20(3) is in conformity to the principle of criminal law followed in our country that the
accused person is to rely on the principle of innocence in his favour.8 But herein the statute
does not follow the Common law principle and put the burden of proof on the accused which
is not in consonance with the basic law of criminal jurisprudence.
(¶ 6.) Blackstone asserted “nemo tenebatur prodere seipsumand his fault was not to be
9
wrung out of himself but rather to be discovered by the other means and other men.” The
scope of reverse onus i.e. the burden of proof in POCSO Act under section 29 is in
contravention to the general principle of criminal jurisprudence.10
(¶ 7.) Section 29 and 30 of POCSO act do not mean that without the strong evidence on
record, the presumption can be drawn against the accused. But then also the sections under
the statute incorporate the reverse presumption clause in order to shift the burden on the
accused, but as per the rule of Jurisprudence the basic responsibility lies with the prosecution
to prove beyond reasonable doubt.11
(¶ 8.) Presumptions, are basically bylaws of evidence and do not meddle with the
presumption of innocence of the accused, for the burden, on the person who asserts to prove
its case, beyond reasonable doubt, still remains intact. 12In criminal cases it is for the
prosecution to bring the guilt home to the accused. Burden of proof squarely rest upon the
prosecution.13 The Principle of common law i.e. Prove beyond reasonable doubt led to the
rule that if two views are possible then the view favoring the accused shall be taken into
consideration by the court.14 As several rights go hand in hand with the principle of
Presumption of innocence Herein changing the burden may preclude the accused from getting
the benefit of doubt.
(¶ 9.) “In recent times, the basic principle that the prosecution has to prove the charge of
guilt against the accused beyond reasonable doubt is being diluted by the legislatures in
7
Article 14 of The International Covenant on Civil and Political Rights, 1966 provides that, “Every one charged
with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”
8
K. Joseph Augusthi v. Narayanan AIR (1964) SC 1552.
9
Glanville Williams, The Proof of Guilt, 1963,3rd edn., London: Stevens & Sons, ,37.
10
Yogesh Maral v. state of Maharashtra (2015) SCC Bom 4928.
11
State v. Ashok Amar Singh, (1973) Current Law Journal 687.
12
DhanwantraiBalwantrai Desai v. State of Maharashtra AIR (1964) SC 557.
13
S.D. Soni v. State of Gujarat AIR (1991) SC 917.
14
Bhaba Nanda Sharma v. State of Assam MANU/SC/0078/1977.

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several statutes.”15It is humbly contended the change of burden of proof from prosecution to
the accused is in turn compelling him to give evidence and it is also against the basic tenet of
the Criminal Law jurisprudence and also violating the fundamental right.

1.2.1. Silence is a facet of article 20(3) and it is getting violated.

(¶ 10.) It is humbly contended that interference with silence attracts violation of article 20(3)
of the Indian constitution. Right to silence has different facets (a) burden of proof is on the
prosecution or the state. (b) Accused is innocent until proven contrary. (c) a person cannot be
compelled to witness against himself. 16
(¶ 11.) The accused is entitled to not to answer any questions if they are likely to expose him
to guilt. This protection is available before as well as after trial stage. Right to silence is an
inherent right under article 20(3).17 Criminal Procedure Code do contain several protections
for the accused i.e. Sec. 161(2)18, Sec. 313(3)19 of the code of criminal procedure, 1973
protects the right to silence i.e. accused cannot be compelled to be witness against himself.20
(¶ 12.) The ban on self-accusation and the right to silence while an investigation or a trial is
underway, goes beyond that case and protects the accused in regard to offences which is
imminent, which may deter him from voluntary disclosure of incriminating matter. 21Law
Commission in its 180th Report has recognized Presumption of innocence as one of the part
related to the accused right to be silence, it is an extension of Art. 20(3) of Constitution of
India.
22
(¶ 13.) In Sidhartha Vashist v. State (NCT of Delhi) it is propounded, the assurity in
‘Presumption of Innocence’ bears the direct link to ‘Right to Self-Incrimination” since
compelling the accused person to give evidence would shift the burden from the prosecution
to the accused which in turn leads to testimonial compulsion.
(¶ 14.) It is humbly contended that the shifting of onus of proof on the accused is violating
his fundamental right by making him to adduce evidence in order to proof his innocence.

15
Law Commission of India, 180th Report on Article 20(3) of the Constitution of India and the Right to silence,
(May, 2002) p.7
16
Ibid.
17
Nandini Satpati v. P.L. Dani (1978) 2 SCC 424 [hereinafter “Nandini Satpati”].
18
“Sec. 161(2): Such person shall be bound to answer truly all questions relating to such case put to him by such
officer, other than questions the answers to which would have tendency to expose him to a criminal charge or to
a penalty or forfeiture”.
19
“313(3): The accused shall not render himself liable to punishment by refusing to answer such questions, or by
giving false answers to them”.
20
Law Commission of India, 180th Report on Article 20(3) of the Constitution of India and the Right to silence,
(May, 2002) p.7.
21
Durga Das Basu, Commentary on The Constitution of India, 2008, 8thedn, Lexis Nexis, 2193.
22
Sidhartha Vashist v. State (NCT of Delhi) (2010) 6 SCC 1.

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Reverse burdens, however, leave the accused with no choice but to testify to his innocence,
attracting concerns of self-incrimination as well as infringement of his right to remain silent.
By shifting the burden Sec. 29 and 30 of POCSO are compelling him to break his silence
against his wish.Therefore, it is humbly submitted that it is violative of article 20(3) of the
Indian constitution and hence must be declared invalid.

1.3. Section 29 and section 30 are violative of article 21 of constitution of India.

(¶ 15.) It is humbly submitted that Sec. 29 and Sec.30 is in violation of Article 21 of the
Indian constitution as it interferes with the Fair Trail of the accused which is aspect of Due
Process which in turn facet of Right to life and personal liberty.
(¶ 16.) Presumption of innocence is a human right Article 21 in view of its expansive
meaning not only protects life and liberty but also envisages a fair procedure. 23Right to life
contemplates that the ‘procedure established by law” to be reasonable, right, fair, 24 and it also
includes right to fair trial.25 Presumption of innocence is an integral part of Due Process, so
there is scope for inclusion of this principle by following Maneka Gandhi v. Union of
India26which read due process in Art.21 of the Indian constitution.
27
(¶ 17.) In Sunil Batra v. Delhi Administration it was held that after the Maneka thesis, the
due process had to read with Art. 21. If it beholds the due process clause, then right to
presume innocent until proven guilty beyond reasonable doubt becomes a fundamental right.
Moreover, this right is located in the right to fair trial 28which certainly precedes the principle
of Maneka Gandhi. Presumption of innocence was a part of right to fair trial.29
(¶ 18.) Accused is presumed to be innocent until the prosecution proves his guilt beyond
reasonable doubt.30is the basic ingredient of Due Process clause under criminal justice
system. Right to life is one of the basic human right and not even the state has the authority to
violate that right.31 When article 21 is in its draft form it was article 14 and it provided that no
person shall be deprived of his life or liberty without due process of law.32
(¶ 19.) In the judgment of Madras High Court, it is categorically stated in criminal cases the

23
Ranjiitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294.
24
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
25
Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.
26
Nandini Satpati, supra note 17.
27
Sunil Batra v. Delhi Administration (1978) 4 SCC 494.
28
Ankul Chandra v. Union of India (1996) 6 SCC 354.
29
Ibid.
30
Mullaney v. Wilbur, (1975) 421 U.S. 684 .
31
State of A.P. v. Challa Ramakrishna Reddy AIR (2000) SC 2083.
32
H.M. Seervai, Constitutional Law of India, 4th edn. 2010 Vol. 2, Universal Law Publishing Co. Pvt. Ltd., 970.

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presumption of innocence must be displaced by positive evidence.33 Herein the evidence is

adduced by the accused himself because of reverse burden so the principle of criminal law is
violated.
(¶ 20.) Calcutta high court held that “where in a criminal case, there is a conflict between
presumption of innocence and any other presumption, the presumption innocence prevails 34
Accused has the Right to be presumed to be innocent and prosecution should prove the guilt
of the accused beyond reasonable doubt.35
(¶ 21.) Hon’ble Supreme Court in the case of Brij Mohan lal v. Union of India36 held that Art.
21 guarantee to its citizens the rights to expeditious and fair trial. Fair trial is the heart of
criminal jurisprudence and, in a way important facet of a democratic polity that is governed
by rule of law.37 Grant of fairest opportunity to the accused to prove his innocence is the
object of every trial.38 Herein no fairest opportunity is given to the accused as whole burden
is on him to prove his innocence as he already presumed guilty without the prosecution
proving his guilt beyond reasonable doubt.
(¶ 22.) In Noor Aga v. State of Punjab39 the court after perusing the international covenants
with the domestic laws propounded that the utmost priority of the courts is to maintain fair
and reasonable procedure for the trial as it attracts individual dignity 40 which is fundamental
right. Supreme court asserted that presumption of innocence is human right and therefore
reverse burden shall be balanced delicately.41
(¶ 23.) It is humbly submitted herein presuming the person guilty on the very first hand is
taking away his right of fair trial as he had to prove his innocence beyond reasonable doubt
which is the work of prosecution, so this reverse presumption clause. After combining the
effect of both section 29 and 30 of the POCSO, courts will presume “Mens Rea” and “Actus
Reus” are there and the accused had to prove that he has not committed theoffence. And if he
is not able to prove he will automatically going to be convicted un terms of Sec. 102 of
theEvidence act.Therefore, it is against the fair trial which is aspect of Due Process and hence
violating the Art. 21 of the Constitution of India.

33
Queen- Empress v. Ramana MANU/TN/0035/1889.
34
Ashraf Ali v. Emperor MANU/WB/0218/1917.
35
DahyabhaiChhaganbhaiThakkur v. State of Gujarat, AIR (1964) SC 1563.
36
Brij Mohan lal v. Union of Indian (2002) 5 SCC 1.
37
Rattiram v. State of M.P. through inspector of police, AIR (2012) SC 1485(1495).
38
P. Sanjeeva Rao v. State of A.P., (2012) 7 SCC 56(63).
39
Noor Aga v. State of Punjab and Anr(2008) 16 SCC 417.
40
Ibid.
41
Krishna Janardhan Bhat v. Dattatreya G. Hedge (2008) CrlLj 1172.

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2. MR. RAMBO CAN BE PERMITTED TO CONDUCT VOLUNTARY POLYGRAPH / NARCO-

ANALYSIS/ BRAIN MAPPING TEST IN ORDER TO PROVE HIS INNOCENCE.

(¶ 24.) It is humbly submitted to the Hon’ble Supreme court that Mr. Rambo should be
permitted to the Scientific techniques in order to prove his innocence as it is a matter of right
to produce evidence for his innocence as the Section 29 and Section 30 of the POCSO Act
Presumed guilty on the very first hand. Therefore, in order to prove he is not guilty Hon’ble
Supreme should allow his petition.

2.1. Petitioner (Rambo) should be allowed because he voluntarily giving consent to

the Scientific test.

(¶ 25.) The scientific test i.e. Polygraph/ Narco-analysis / Brain mapping test or other
invasive scientific techniques could be carried out upon the accused with his consent and the
result thereof would be admissible in evidence and would help the court in reaching the truth
and for the just decision of the case.42 In the present case Mr. Rambo is a asking for voluntary
test43 which is similar to the above case in which this test is allowed. So herein it is contended
that the test is allowed with the consent of the accused in order to give him fairer chance to
prove his innocence.
(¶ 26.) When after exhausting all the alternative there is no headway, then the court can allow
44
Narco test in order to get the evidence because there is a necessity. Herein the present case
in order to prove his innocence which is necessity accused can ask for the test.
(¶ 27.) In Selvi v. State of Karnataka it is said that we do leave room for the voluntary
administration of this scientific test. Any information or material that is subsequently
discovered with the help of voluntary administered test results can be admitted in accordance
with Section 27 of the Evidence Act, 1872.45 So herein also voluntary can be allowed and can
be taken as material evidence in order to that he is not guilty.
(¶ 28.) It is duly noted that the right of the accused to give evidence to prove his innocence
not only flows from the principles of natural justice, which is now held to be a part of Article
14/21 of the Constitution of India, but also under Section 31546 of the code of Criminal
Procedure. So herein the accused must be permitted to give evidence of his innocence in the
form of scientific nature like brain mapping test. To stop the person from this would amount
42
State of Rajasthan v. JasveersinghJat2018(3) RLW 1935(Raj.).
43
Moot Preposition para 7.
44
Sasntokhben Sharmanbhai Ladeja v. State of Gujarat 2007(4) Cri LJ 4566.
45
Selvi and ors. v. State of Karnataka (2010)7 SCC 263.
46
§ 315 Criminal Procedure Code, 1973.

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MEMORIAL for PETITIONER BODY OF ARGUMENTS

to violation of his right.47

(¶ 29.) It is humbly submitted that the test requested by the appellant should be allowed in
order to release his burden of proving himself innocent as he is already presumed guilty by
the statute, and if he is not allowed to do so he will be convicted without giving him the fair
chance to prove his case.

2.2. Voluntary Evidence with the help of Narco Analysis/Polygraph/Brain Mapping

is admissible in courts

(¶ 30.) As to Art 20(3) constitution vis-à-vis Section 27 of Indian Evidence Act 48, the
Supreme court observed that: If the evidence or any information has been given by an
accused person without any threat but voluntary that will be admissible in evidence and that it
will not hit by 20(3) of the Constitution. 49It is contended in the landmark case of Selvi and
ors. V. State of Karnataka the court must take into account for the uses of scientific
techniques by persons other than investigators and prosecutors. Narco Analysis test could be
requested by the defendants who want to prove his innocence, 50 and it can be used as an
admissible evidence.
(¶ 31.) It is humbly submitted that for the fair trail of the accused all the possible evidence is
required to be brought on record. If the Hon’ble court denies it will lead to abrogation of his
right to prove his innocence and declaring him criminal without giving him chance to stand
on his case,this test is valid if it is done with the consent of the accused and it is an admissible
piece of evidence. Looking at the facts of the case and the accused is pleading that now the
only piece of evidence by way of this scientific test can prove him innocent. Therefore, the
test must be allowed.

47
Purshottam Swaroop Chand Soni v. State of Gujarat (2007)3GLR2088.
48
§. 27 of Indian Evidence Act.
49
Sudipto Sarkar, V.R. Manohar, Law of Evidence, 2010, 17th edn, Lexis Nexis, 740.
50
Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263

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MEMORIAL for PETITIONER PRAYER

PRAYER

In the light of facts stated, argument advanced and authorities cited it is most humbly prayed
and implored before the Hon’ble Supreme Court of India, that it may be pleased to adjudge
and declare that:

1. Section 29 and section 30 of the POCSO, 2012 are in violation of fundamental rights.
2. Mr. Rambo Should be permitted to conduct a voluntary polygraph/narco- analysis
/brain mapping test in order to prove his innocence.

And further, pass any other such order(s) which it may deem fit in furtherance of justice,
equity and good conscience in the favour of the petitioner.

Date: 17.08.2018
Place: New Delhi
(s/d)
Counsel for the
petitioner

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