COUNSEL APPEARING ON BEHALF OF RESPONDENT

INDIAN INSTITUTE OF LEGAL STUDIES

DAGAPUR, SILIGURI

SUBJECT: - MOOT COURT.

UNDER THE SUPERVISION OF

ASST. PROF RUPA PRADHAN.

SUBMITTED BY:-
NAME:-MUKESH SINGH
COURSE:-B.COM, LLB (10TH SEMESTER)
ADMIT CARD NO: - 102/B.COM/LLB/16008
CLASS ROLL NO: - 07

pg. 1
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

IILS MOOT COURT

2019- 2020.

IN THE HON’BLE HIGH COURT OF VIJAYNAGAR

ON SUBMISSION TO HON’BLE HIGH COURT OF VIJAYNAGAR

UNDER ARTICLE 227 OF CONSTITUION OF INDICA.

PRASAD………………………………………………………………….APPELLANT 1
VIKRANT...................................................................…...APPELLANT 2

VERSUS

STATE OF DAKSHIN………………………………………………….RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT.

COUNSEL APPEARING ON BEHALF OF

STATE OF DAKSHIN

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT
TABLE OF CONTENTS:-

INDEX OF AUTHORITIES-------------------------------------------------------------------03

 LEGISLATION -----------------------------------------------------------------------------03
 CASES REFERRED------------------------------------------------------------------------03
 BOOKS REFERRED-----------------------------------------------------------------------04
 LAW LEXICON AND DICTIONARIES--------------------------------------------------04
 LEGAL DATABASES-----------------------------------------------------------------------04

LIST OF ABBREVIATIONS-------------------------------------------------------------------05

STATEMENT OF JURISDICTION-----------------------------------------------------------06

STATEMENT OF FACTS-----------------------------------------------------------------------07

ISSUES RAISED------------------------------------------------------------------------------------10

SUMMARY OF PLEADINGS-------------------------------------------------------------------11

PLEADINGS-----------------------------------------------------------------------------------------12

I. Whether the capital punishment awarded to Prasad Justifiable or not?

II. Whether the life imprisonment given to Vikrant valid or not?
III.Whether Section 15 Of Juvenile Justice (Care And Protection Of Children) Act,
2015 Is Unconstitutional Or Not?

PRAYER …………………………………………………………………………………20

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT
INDEX OF AUTHORITIES

LEGISLATION:-

1. Criminal Procedure Code, 1973.

2. Juvenile Justice (Care and Protection of Children) Act, 2015.
3. The Constitution of India, 1951
4. The Indian Penal Code, 1860.

CASES REFERRED:-

 Avishek Goenka Vs. Union of India [(2002) 2 SCC 333].

 Bachan Singh v. State of Punjab AIR 1325, 1983 SCR (1) 145.
 BALCO Employees Union Vs. Union of India [(2012) 5 SCC 321].

 D.S. Nakara v. Union of India, (1983) 1 SCC 305.

 Laxman Naik v. State of Orissa, AIR 1995 SC 1387, (1994) 3 SCC 381.

 Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj).
 Prithi Chand v. State of Himachal Pradesh, AIR 1989 SC 702.

 Ram Prasad Sahu v. State of Bihar,(1980) 1 SCC 74: AIR 1980 SC 83..

 Roper v. Simmons,2005 SCC OnLine US  SC 12 : 161 L Ed 2d 1 : 543 US 551 (2005).

 Salil Bali v. Union of India, (2013) 7 SCC 705.

 State of Karnataka vs. Mahabaleshwar Gourya Naik AIR 1992 SC 2043.

BOOKS REFERRED:-

th
 P.M. Bakshi, THE CONSTITUION OFINDIA, (14 ed., 2017).
th
 H.M. Seervai, CONSTITUTIONALLAW OFINDIA, (4 ed., 2010).
 Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, (51st ed., 2014).
 Dr. S.C. Kashyap, CONSTITUTIONAL LAW OF INDIA, (1st ed., 2008).
 M.P. Jain, INDIAN CONSTITUTIONAL LAW, (7th ed., 2015).
 Ratanlal&Dhirajlal, THE INDIAN PENAL CODE, (34th ed., 2014)

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

LAW LEXICON AND DICTIONARIES:-

 www.manupatra.co.in/
 Lexis Nexis www.lexisnexis.co.in/ Live Law www.livelaw.in/
 SCC Online www.scconline.in/
 The Wire www.thewire.in/
 Calcutta High Court www.calcuttahighcourt.nic.in/
 All India library www.allindialibrary.co.in/

LEGAL DATABASES:-

 Merriam-Webster's Law Dictionary: Legal Terms in Plain English

 Dictionary of Law - Oxford Reference
 Black's Law Dictionary

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Art. Article
Hon’ble Honourable
Ors. Others
S.C.C. Supreme Court Cases

SC Supreme Court
V. Versus

PIL Public Interest Litigation

§ Section

Corp. Corporation

cl. Clause

S.C.R. Supreme Court Reports

J. Justice

u/a Under article

LR Law Review

Vol. Volume

NCT National Capital Territory

IPC Indian Penal Code

JK Jammu Kashmir

TADA Terrorists and Disruptive Activities (Prevention) Act

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION:-

The Hon’ble High Court of Vijaynagar has the jurisdiction to hear the instant matter under Article
227 of the Constitution of Indica, which states that

Article 227 in the Constitution of Indica 1949

227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the
territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any
such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks
and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause
( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and
shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court powers of

superintendence over any court or tribunal constituted by or under any law relating to the
Armed Forces

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT
STATEMENT OF FACTS:-

1) The State of Dakshin of Union of Indica had witnessed increasing number of crimes
with respect to eve teasing and stalking. Kellore, Vijaynagar and Mannur are cities in
the State of Dakshin.

2) Prasad, 22 year old male, is a waiter at Bhojan Hotel (located at GB Nagar in the city
of Kellore), while his friend Vikrant, 17 year old male, works at a cycle repair shop
just opposite Bhojan Hotel. Prasad hails from a well to do family in a city named
Mannur (State of Dakshin) but fled his parental home due to continuous bickering and
humiliation of him by his parents and presently stays 2kms from the Bhojan Hotel.
Vikrant on the other hand hails from a very poor family staying at a chawl located 3
kms from the Bhojan Hotel, barely managing his and his family’s survival. He is the
sole bread earner in the family.

3) Prithya, a 25 year old woman is a resident of Vijaynagar. She works at a call centre in
Kellore from 10am to 7pm every day. The Call centre, Bhojan Hotel as well as the
cycle repair shop all is located within 300 meters of each other. Prithya is a regular
passenger of Dakshin express running between Kellore to Vijaynagar. Prithya’s daily
transit consisted of taking a public transport bus from KT bus stop located near the
call centre to reach Kellore railway station and then boarding the Dakshin Express
local running from Kellore station to Vijaynagar station. On reaching Vijaynagar
station, she used to board another bus originating from a bus depot adjacent
Vijaynagar station to finally reach her residence.

4) It was 8th June, 2018, when Prasad and Vikrant had seen Prithya for the first time on
when she had visited Bhojan Hotel with some of her friends. After Prasad first set
eyes on Prithya, he felt attracted to her and confided his feeling to his friend Vikrant.
Since they first saw Prithya at Bhojan Hotel, Prasad and his friend Vikrant
continuedstalking and eve teasing Prithya frequently till the time she waited at KT bus
stop.Prithya repeatedly warned Prasad and Vikrant of grave consequences but both

pg. 8
 COUNSEL APPEARING ON BEHALF OF RESPONDENT
laughed it off as a baseless threat.On 3rd July, 2018; Vikrant had challenged and
dared Prasad to be bold and convey his feelings to Prithya thereby instigating him by
questioning his manhood. Agitated by the continuous questioning of his manhood,
Prasad approached and proposed Prithya while she was waiting at the KT bus stop the
very same day along with Vikrant. Prithya rejected the unwelcoming advance by
Prasad and slapped him in front of bystanders present near the KT bus stop which
offended Prasad deeply. In a fit of rage, Prasad threatened Prithya of revenge and left
the place with Vikrant. Fearing the backlash, Prithya filed a FIR against Prasad and
Vikrant at Kellore police station for threatening, stalking and eve teasing by Prasad
and Vikrant.

5) After a week, on 10th July, 2018, Prasad and Vikrant continued to stalk Prithya while
she was leaving from her workplace. She left her workplace little late at 8:00 pm (on
10th July, 2018) and boarded the Dakshin Express local from Kellore railway station
at 8:30 pm. The compartment which Prithya boarded was empty. Vikrant and Prasad
were seen boarding the adjacent compartment as the train had started to depart.
Prithya reached Vijaynagar railway station around 9:15 pm where she purchased
packaged drinking water bottle at a small shop around the Vijaynagar bus stop where
Prasad again tried to convince Prithya to give in to his charms, but Prithya out rightly
rejected him and slapped him again.

6) Angered by the rejection, while Prithya was a little far away from the shop and was
moving towards the bus depot located adjoining the Vijaynagar Station to board the
bus to reach home, Prasad nabbed her and compelled Vikrant to help him drag her to
an abandoned and secluded tea stall where they tied her up and stuffed her mouth with
handkerchief to limit her cries. Subsequently Prasad raped herin a fit of rage and
cautioned Vikrant of consequences if he ever narrated this event to anyone else. On
hearing voices of some strangers approaching in their direction, both Prasad and
Vikrant fled the spot separately leaving Prithya at her own risk. Around 11:00 pm,
Vikrant returned back where Prithya was abandoned and raped her to fulfil his lust.
Prithya was still alive but in semi-conscious state and was resisting the onslaught with
whatever little energy that was left in her. In order to control her, Vikrant hit her with
stone on various parts of the body after which she stopped resisting and somehow
Vikrant dragged her and threw her in a gutter flowing nearby the abandoned tea stall.

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT
Around 12:00 am, 11th July 2018, some nearby villager passing by noticed Prithya’s
lifeless body and rushed her to a nearby Government hospital, where she succumbed
to her injuries around 12:30 am, 11th July 2018. The body was later on taken for post
– mortem as Prithya was declared dead by the concerned hospital authorities.

7) On 15th July, 2018, the post-mortem reports confirmed bruises on the vaginal wall
opening and inner thighs. Lacerated wound with a surrounding abraded contusion on
left side of forehead above eye brow, on right side of forehead just above eyebrow
and contusion of left temporalis mused, involving its whole thickness. The left orbital
margin showed a fissured fracture. The floor of left side of anterior cranial fosse also
showed fracture. There is traumatic disruption of stem of pituitary gland and left lobe
of brain showed multiple areas of haemorrhage.

8) After due investigation, the police found the record of FIR from the Kellore police
station filed by the victim against the suspects (Prasad and Vikrant). After which
police arrested Prasad and Vikrant for further investigations on 17th July, 2018. On
the next day 18th July, 2018, both the suspects/accused were medically examined and
Prasad was presentedbefore the Sessions Court of Vijaynagar while Vikrant was
produced before the Juvenile Justice Board (JJB) of Vijaynagar. The JJB made a
preliminary assessment and sent Vikrant to Children’s Court at Vijaynagar to be tried
as an adult.

9) On 30th September, 2018, the Sessions Court convicted Prasad guilty for the offences
of murder and rape and awarded capital punishment to him whereas Children’s Court
awarded life imprisonment to Vikrant for murder and rape. On 4th October, 2018,
Prasad appealed before the Hon’ble High Court of Vijaynagar against the verdict
given by Sessions Court challenging the capital punishment awarded to him while
Vikrant appealed before the Hon’ble High Court of Vijaynagar challenging the
verdict given by Children’s Court for trying him as an adult and sentencing life
imprisonment to him.

pg. 10
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

ISSUES RAISED:-

ISSUES 1:-

WHETHER THE CAPITAL PUNISHMENT AWARDED TO PRASAD

JUSITIFIABLE OR NOT?

ISSUES 2:-

WHETHER THE LIFE IMPRISONMENT GRANTED TO VIKRANT VALID OR

NOT?

ISSUES 3:-

WHETHER SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2015 IS UNCONSTITUTIONAL OR NOT?

pg. 11
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

SUMMARY OF PLEADINGS:-

I. WHETHER THE CAPITAL PUNISHMENT AWARDED TO PRASAD

JUSITIFIABLE?

The Counsel on behalf of the Respondent humbly submits to the Hon’ble HC of Vijaynagar
that the capital punishment awarded to the accused Prasad, is completely justifiable and
therefore no changes should be made in the order passed by the Sessions Court.

II. WHETHERTHE LIFE IMPRISONMENT GRANTED TO VIKRANT

VALID?

It is humbly submitted on behalf of the Respondent before the Hon’ble Court that the life
imprisonment given to the accused Vikrant is valid keeping in mind the severity of his
crime and his capability to understand the same.

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

PLEADINGS:-

I. WHETHER THE CAPITAL PUNISHMENT AWARDED TO PRASAD

JUSITIFIABLE?

It is humbly submitted by the Counsel on behalf of the Respondent before the Hon’ble Court
that the capital punishment awarded to the accused Prasad in completely justifiable
considering the nature of offence committed by him and the punishment as prescribed under
the Penal Code, 1860.The accused Prasad has been charged with the offence of rape u/s
375and murder u/s 300of the Indian Penal Code, 1860, and thus, is liable to be punished
u/s 376and 302of the Indian Penal Code, 1860.

375. Rape.—A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any other
person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person, under the circumstances falling under any of the following seven
descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person
in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the nature
and consequences of that to which she gives consent.

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—
When she is unable to communicate consent.

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by

words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act: Provided that a woman who does not
physically resist to the act of penetration shall not by the reason only of that fact, be regarded
as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape1.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape.

300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the
act by which the death is caused is done with the intention of causing death, or—

2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom the harm is caused, or—

3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
—

4thly.—If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such injury as
aforesaid.

376. Punishment for rape.—(1) Whoever, except in the cases provided for in sub-section
(2), commits rape, shall be punished with rigorous imprisonment 2 of either description for a
term which shall not be less than seven years, but which may extend to imprisonment for life,
and shall also be liable to fine.
302. Punishment for murder.—whoever commits murder shall be punished with death or
1[imprisonment for life], and shall also be liable to fine.

It is also put forward that the facts of the case clearly states that the post-mortem reports
confirmed bruises on the vaginal wall opening and inner thighs. Lacerated wound with a
surrounding abraded contusion on left side of forehead above eye brow, on right side of
forehead just above eyebrow and contusion of left temporalis mused, involving its whole
thickness. The left orbital margin showed a fissured fracture.

1
Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj).
2
Prithi Chand v. State of Himachal Pradesh, AIR 1989 SC 702.

pg. 14
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

The floor of left side of anterior cranial fosse also showed fracture. There is traumatic
disruption of stem of pituitary gland and left lobe of brain showed multiple areas of
haemorrhage.3

The death sentence was awarded to the accused in Laxman Naik v. State of Orissa4 accused
of sexually assaulting his 7-year-old niece. The evidence recorded and the degree of injuries
of the victim according to the judges were sufficient to prove the gross brutality with which
the rape and murder had been committed and hence it was a case fit to fall under the category
of the “rarest of rare” cases.

 Bachan Singh v. State of Punjab 5  while discussing the sentencing policy, also laid down
norms indicating the area of imposition of death penalty taking into consideration the
aggravating and mitigating circumstances of the case and affirmed the view that the
sentencing discretion is to be exercised judicially on well-recognised principles, after
balancing all the aggravating and mitigating circumstances of the crime guided by the
legislative policy discernible from the provisions contained in Sections 253(2) and 354(3) of
the Code of Criminal Procedure. In other words, the extreme penalty can be inflicted only in
gravest cases of the extreme culpability and in making choice of the sentence, in addition to
the circumstances of the offender also. 

Thus, it is submitted before the Hon’ble Court that the death penalty awarded to the accused
is justified as the bruises and the injuries which the victim succumbed through led to the
death of her. Further, it is also stated that it was the act of Prasad which influenced the other
accused Vikrant to rape her again just to fulfill his lust and end her life. Thus, both the
accused are liable for the death of the victim and as such, keeping in mind the gravity of the
offence committed the accused, the decision of capital punishment as awarded by the
Sessions Court must be upheld by the present Hon’ble Bench.

3
Moot problem.
4
Laxman Naik v. State of Orissa, AIR 1995 SC 1387, (1994) 3 SCC 381.
5
Bachan Singh v. State of Punjab AIR 1325, 1983 SCR (1) 145.

pg. 15
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

II .WHETHER THE LIFE IMPRISONMENT GRANTED TO VIKRANT VALID?

The Counsel on behalf of the Respondent humbly submit before the Hon’ble HC of
Vijaynagarthat in the instant case, the life imprisonment awarded to the minor accused
Vikrant, and tried as an adult under the Children’s Court is valid as the nature of offence
committed by the accused and the gravity of his offence clearly provides that the
development of intellectual level of the person is not that of a minor, who is capable of giving
effect to such an horrendous killing of a lady by throwing stones at her, raping her with least
concern, dragging her and then throwing her in a gutter.

The provision of Section 15 and Section 18(3) of the Juvenile Justice (Care and Protection
of Children) Act, 2015

S. 15(1) JJ Act, 2015, (1) In case of a heinous offence alleged to have been committed by a
child, who has completed or is above the age of sixteen years, the Board shall conduct a
preliminary assessment with regard to his mental and physical capacity to commit such
offence, ability to understand the consequences of the offence and the circumustances in
which he allegedly committed the offence, and may pass an order in accordance with the
provisions of sub-s. (3) of S. 18.

S. 18(3) of JJ Act, 2015, (3) Where the Board after preliminary assessment under S. 15 pass an
order that there is a need for trial of the said child as an adult, then the Board may order transfer of the
trial of the case to the Children’s Court having jurisdiction to try such offences.

The provision of Section 15 and Section 18(3) of the Juvenile Justice (Care and Protection
of Children) Act, 2015 lays down that if the minor has completed or is above sixteen years
and is involved in a heinous crime then on the report of preliminary assessment by the
Juvenile Board, the case can be trialed in the Children’s Court and the minors will be treated
as adults and would be subjected to the criminal procedure. This differential treatment of the
minors between the age group of 16-18 years sparked the criticism. It was contested that this
provision led to the violation of Article 14 i.e. right to equality.

In order to ensure the protection of Article 14, that is, right to equality, among children in
conflict with the law who belong to different age group, the Act provides for intelligible
differentia. So that children who have committed petty offences and those children who have
committed heinous offences are not treated alike and the special needs of each class for
reformation and rehabilitation is taken into account.

pg. 16
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

In order, however, to pass the test of permissible classification two conditions must be
fulfilled, namely:

(i) that the classification must be found on an intelligible differentia which distinguishes
persons or things that are grouped together from others left out of the group; and

(ii) that differentia must have a rational relation to the object sought to be achieved by the
statute in question. What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration.6

Children under the age group of 18 years may have different mental capabilities since the
development of brain takes place at different stages in different individuals, the severity of
the crime committed may also differ thus indicating different levels of maturity. As according
to American Psychology Association the human brain is not fully mature and the brain is still
in the process of developing, therefore, the juveniles cannot be held fully responsible for their
behaviour. Hence children involved in petty crimes such as house breaking, pickpocketing
should not be kept with those involved in heinous crimes like rape, murder, etc. as that would
be prejudicial to the victim in the former case who suffer more. In Roper v. Simmons,7 the
Supreme Court opined that all juveniles should not be grouped into a single class instead;
juveniles should be given individual consideration and evaluated on the basis of their
particular maturity level, intelligence, life experience and feelings of moral responsibility,
background history. Thus, giving due consideration to the idea of differential treatment of
juveniles.

In State of Karnataka vs. Mahabaleshwar Gourya Naik 8,the Court went to the extent of
laying down that even if the victim of rape is not available to give evidence on account of her
having committed suicide, the prosecution case cannot be thrown away over board. In such a
case, the non-availability of the victim will not be fatal and the Court can record a conviction
on the basis of the available evidence brought on record by the prosecution.

6
D.S. Nakara v. Union of India, (1983) 1 SCC 305.
7
Roper v. Simmons,2005 SCC OnLine US  SC 12 : 161 L Ed 2d 1 : 543 US 551 (2005).
8
AIR 1992 SC 2043

pg. 17
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

In Bodhisattwa Gautam v. Subhra Chakraborty,9 offence of rape was held to be a violation

of the right to life guaranteed under Article 21 of the Constitution of India. Fundamental
rights are superior to any other right guaranteed by any statue. Thus making the blanket
immunity to the juveniles as being ultra vires the Constitution. In Ram Prasad Sahu v. State
of Bihar,10 the Supreme Court held that a child offender can be convicted of committing
rape11 and an attempt to commit rape. Where a child is not eligible to be punished but is
capable of committing rape or murder it is against the principle of justice and principle of
proportionality of punishment if he is given blanket immunity. It is a well-established
medical psychological fact that the level of understanding of a 16-year-old was on a par with
that of adults.12

Ram Prasad Sahu And Ors vs State Of Bihar 13 The facts found by the High Court have our
broad concurrence although Shri R. K. Jain, Advocate in Criminal Appeal No. 613 of 1 1979,
has, to some extent, made a dent on the veracity of the prosecution version. But we are not
inclined to re-open the findings of fact concurrently rendered in exercise of our jurisdiction
under  Article 136 even assuming there are some errors of fact and of law. Every error does
not confer a visa into this Court lest the floodgates of litigation should flow as an irresistible
stream making the Supreme Court a superior High Court of appeal. Doing so would
condemn the court to functional futility and defeat the design of the founding fathers that
ordinarily it shall operate as the nation's summit court deliberating and pronouncing upon

issues of great moment and constitutional portent. For these reasons we have confined leave
to appeal to the nature of the offence disclosed on the findings on record and the sentence to
be imposed if variance is justified on principle.

9
 Bodhisattwa Gautam v. Subhra Chakraborty,(1996) 1 SCC 490; Rly. Board v. Chandrima Das, (2000) 2 SCC
465.
10
Ram Prasad Sahu v. State of Bihar,(1980) 1 SCC 74: AIR 1980 SC 83.
11
S. 376(d) IPC defines punishment for rape which shall be rigorous imprisonment of either description of a
term which shall not be less than seven years but which may extend to imprisonment for life
12
Salil Bali v. Union of India, (2013) 7 SCC 705.
13
AIR 83, 1980 SCR (1) 927

pg. 18
 COUNSEL APPEARING ON BEHALF OF RESPONDENT

III .WHETHER SECTION 15 OF JUVENILE JUSTICE (CARE AND PROTECTION

OF CHILDREN) ACT, 2015 IS UNCONSTITUTIONAL OR NOT?

In the present case, the life imprisonment awarded to the minor accused Vikrant, and tried as
an adult under the Children’s Court is valid as the nature of offence committed by the
accused and the gravity of his offence clearly provides that the development of intellectual
level of the person is not that of a minor, who is capable of giving effect to such an
horrendous killing of a lady by throwing stones at her, raping her with least concern,
dragging her and then throwing her in a gutter.

15. Order that may be passed regarding juvenile.—

(1)  Where a Board is satisfied on inquiry that a juvenile has committed an offence, then,
notwithstanding anything to the contrary contained in any other law for the time being in
force, the Board may, if it so thinks fit,—

(a)  Allow the juvenile to go home after advice or admonition following appropriate inquiry
against and counselling to the parent or the guardian and the juvenile;

(b)  Direct the juvenile to participate in group counselling and similar activities;

(c)  Order the juvenile to perform community service;

(d)  Order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen
years of age and earns money;

(e)  direct the juvenile to be released on probation of good conduct and placed under the care
of any parent, guardian or other fit person, on such parent, guardian or other fit person
executing a bond, with or without surety, as the Board may require, for the good behaviour
and well-being of the juvenile for any period not exceeding three years;

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

(f)  direct the juvenile to be released on probation of good conduct and placed under the care
of any fit institution for the good behaviour and well-being of the juvenile for any period not
exceeding three years; 1[(g) make an order directing the juvenile to be sent to a special home
for a period of three years: Provided that the Board may, if it is satisfied that having regard to
the nature of the offence and the circumstances of the case, it is expedient so to do, for
reasons to be recorded, reduce the period of stay to such period as it thinks fit.

Avishek Goenka Vs. Union of India14 wherein the pasting of black films on glass panes were
banned by this Court on account of the fact that partially opaque glass panes on vehicles
acted as facilitators of crime. Ms. Kapoor urged that in the opening paragraph of the
judgment, it has been observed that “Alarming rise in heinous crimes like kidnapping, sexual
assault on women and dacoity have impinged upon the right to life and the right to live in a
safe environment which are within the contours of Article 21 of the Constitution of India”.

BALCO Employees Union Vs. Union of India 15 the learned ASG submitted that at
paragraph 46 of the said judgment it had been observed that it is neither within the domain of
the Courts nor the scope of judicial review to embark upon an enquiry as to whether a
particular public policy was wise or whether something better could be evolved. It was
further observed that the Courts were reluctant to strike down a policy at the behest of a
Petitioner merely because it has been urged that a different policy would have been fairer or
wiser or more scientific or more logical. The learned ASG further urged that Article 15(3) of
the Constitution empowers the State to enact special provisions for women and children,
which reveals that the Juvenile Justice (Care and Protection of Children) Act, 2000, was in
conformity with the provisions of the Constitution.

14
[(2012) 5 SCC 321].
15
[(2002) 2 SCC 333].

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 COUNSEL APPEARING ON BEHALF OF RESPONDENT

PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR RESPONDENT R HUMBLY PRAYS
THAT THE HON‟BLE HIGH COURT OF VIJAYNAGAR:

TO DECLARE THAT THE CAPITAL PUNISHMENT AWARDED TO PRASAD IS

JUSTIFIABLE

TO DECLARE THAT THEACCUSED VIKRANT HAS BEEN RIGHTLY AWARDED

WITH LIFE IMPRISONMENT.

TO DECLARE THAT SECTION 15 OF JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015 IS CONSTITUTIONAL.

AND/OR

PASS ANY ORDER THAT THIS HON‟BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE RESPONDENT AS IN DUTY BOUND

SHALL EVER PRAY.

(COUNSEL FOR RESPONDENT)

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COUNSEL APPEARING ON BEHALF OF RESPONDENT

pg. 22