K.L.

N Sumasri
190550049
KLEF COLLEGE OF LAW
MOOT COURT, 2024

BEFORE THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTERS OF

VIKRAM GUPTA & OTHERS .

………..APPELLANT
v.
STATE OF KURALA
……….RESPONDENT
[Cr. App. No. 221 of 2023 from High Court of Kurala]

Along with

COALITION AGAINST CAPITAL PUNISHMENT, KURALA

……..PETITIONER
v.
UNION OF INDIA
……….RESPONDENT
[W.P. No. 08 of 2023]

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 & 134 OF CONSTITUTION OF INDIA, 1950.

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT - VIKRAM GUPTA

& OTHERS AND COALITION AGAINST CAPITAL PUNISHMENT, KURALA
(CCPK).
 190550049

COUNSELS APPEARING ON BEHALF OF THE APPELLANT - VIKRAM GUPTA

& OTHERS AND COALITION AGAINST CAPITAL PUNISHMENT, KURALA
(CCPK).

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS..................................................................................................3
INDEX OF AUTHORITIES...................................................................................................4
STATUTES:...........................................................................................................................4
CASE LAWS:........................................................................................................................4
BOOKS & COMMENTARIES:............................................................................................5
RESEARCH PAPERS:..........................................................................................................6
STATEMENT OF JURISDICTION......................................................................................7
STATEMENT OF FACTS......................................................................................................9
STATEMENT OF ISSUES...................................................................................................12
ARGUMENTS ADVANCED................................................................................................16
I. Whether the trial court and the High Court of Kurala were correct in finding the
accused guilty of murder?....................................................................................................16
I.1. Appellant is not guilty under section 302 of the Indian Penal Code, 1860...............16
I.2. Burden of proof is on Prosecution.............................................................................18
I.3. circumstantial evidence is unreliable.........................................................................19
I.4. Doctrine of Benefit of doubt:.....................................................................................21
II. Whether the trial court and the High Court of Kurala were correct in finding
accused no. 3 guilty of rape and accused no. 1 and 2 guilty of abetment to rape?..............23
II.1. Narco Analysis Test Is Not Admissible...................................................................23
II.2. Investigating officers have failed to conduct proper investigation..........................25
III. Considering the need to reconsider Bachan Singh v. State of Punjab, whether the
death penalty is constitutionally valid in light of the same?................................................27
III.1. Death penalty should be abolished..........................................................................28
III.2. Reformative theory should be adopted...................................................................30
IV. Assuming that the death penalty is valid, did the trial court err in sentencing all the
accused in State of Kurala v. Vikram Gupta & Ors. to death?............................................32
IV.1. The accused persons are not guilty of offense........................................................32
IV.2. The offence doesn’t fall within the purview of “Rarest of Rare” cases..................32
PRAYER.................................................................................................................................35

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LIST OF ABBREVIATIONS

& : And

Addl. : Additional

AIR : All India Reporter

Anr. : Another

Art : Article

HC : High Court

SC : Supreme Court

Ors. : Others

SCC : Supreme Court Cases

Sec : Section

u/sec : Under Section

v. : Versus

A. P : Andhra Pradesh

U.P. : Uttar Pradesh

H.P. : Himachal Pradesh

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INDEX OF AUTHORITIES

STATUTES:

 The Constitution of India, 1950.

 Indian Penal Code, 1860.

 The Code of Criminal Procedure, 1973.

 The Indian Evidence Act, 1872

CASE LAWS:

 Abdul Waheed Khan &Ors v. State of A.P. (2002) 7 S.C.C. 175.

 Augustine Saldanha v. State of Karnataka (2003) 10 SCC. 472.
 Bachan Singh v. State of Punjab (1979) SCC (3) 727.
 Bhadur Singh and Another v. State of Vind AIR 1954 Sc 322.
 Chacko v. State of Kerala (2004) 12 SCC. 269.
 Hanumant v. State of Madhya Pradesh AIR 1952 SC 343.
 Harendra Narain Singh Etc v. State of Bihar 1991 AIR 1842 (SC).
 Horvath v. R [(1979) 44 C.C.C (2d) 385].
 Janarlaldas v. State of Orissa 1991 3 SCC 27.
 Kedar Nath v. State of Madhya Pradesh AIR 1991 SC 1224.
 Kishore Chand v. State of H.P 1990 AIR 2140.
 Machhi Singh and Others v State of Punjab 1983 SCC (3) 470.
 Mohan Lal v. State of UP AIR 1974 SC 1144.
 Narotam Singh v. State of Punjab AIR 1978 SC 1542.
 Padala Veera Reddy v. State of A.P AIR 1990 SC 79.
 Rajwant and Anr. v. State of Kerala A.I.R. 1966 SC. 1874.
 Ramgopal v. State of Maharashtra (1972) 4 SCC 625.
 Rampal Singh v. State of U.P. (2012) Cri. L.J. 3765.
 Ruli Ram v. State of Haryana (2002) 7 SCC. 691.

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 S. N. Bhadolkar v. State of Maharashtra (2005) 9 SCC. 71.

 Saddik & Ors. v. State of Gujarat (2016) 10 SCC 663.
 Santosh Kumar Bariyar v. State of Maharashtra (2009) SCC (6) 498.
 Selvi v. State of Karnataka 2010 7 SCC 263.
 State of Gujarat v. Mohonlal Kuberdas Upadhya 1975 Guj LR 263.
 State of Rajasthan v. Kundan AIR 1996 SC 1739.
 State of U. P. v. Virendra Prasad (2004) 9 SCC. 37.
 Tomaso Bruno v. State of U.P 2015 CrLJ 1690: 2015 (1) SCALE 498.
 Tufail (Alias) Simmi v. State of Uttar Pradesh (1969) 3 SCC 198.
 Vadlokonda Lenin v State of A.P 2012 XII SCC 260.
 Virsa Singh v. State of Punjab A.I.R. 1958 SC 465.

BOOKS & COMMENTARIES:

 H. M. Seervai, Constitutional Law of India: A Critical Commentary, 5th ed.

Universal Law Publishing (2021).
 Psa Pillai, Criminal Law,12th Edition.
 K D Gaur, Textbook on Indian Penal Code (Universal Law Publishing 2016).
 William Wilson, Criminal Law Sixth Edition.
 Andrew Ashworth, Sentencing and Criminal Justice Fifth Edition.
 Prof. S. N. Misra, Indian Penal Code 197 (Central Law Publications 2016).
 Granville Austin, The Indian Constitution Cornerstone of a Nation, 2019, Oxford
University Press.
 Michel Rosenfeld, András Sajó, eds., The Oxford Handbook of Comparative
Constitutional Law, 2012, Oxford University Press.
 Richard H. Fallon, Jr, The Dynamic Constitution, 2004, Cambridge University
Press.
 Lawrence M. Solan, The Language of Statutes, 2010, The University of Chicago
Press.
 Criminal Law Text, Cases and Materials, Author: Janet Loveless, Oxford University
 Press, Third Edition.

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 Criminal Law Text, Cases and Materials, Author: Jonathan Herring, Oxford
University, Press 5th Edition.
 Antonin Scalia, A Matter of Interpretation, 1997, Princeton University Press.

RESEARCH PAPERS:

 Nicola Lacey And Hanna Pickard, To Blame or to Forgive? Reconciling Punishment

and Forgiveness in Criminal Justice, 35, O.J.L.S, 667, 665-696 (2015).
 M. Mohsin Alam Bhat, Mob, Murder, Motivation: The Emergence of Hate Crime
Discourse in India, 16 SOCIO-LEGAL REV. 76 (2020).
 Parminder Pindu, Admission and Confession: Evidentiary Value, 2 SUPREMO
AMICUS 274 (2017).
 Sukhdeep Singh & Simranjeet Kaur Gill, Confession: Harmony with Right against
Self Incrimination, 4 INDIAN J.L. & LEGAL RSCH. 1 (2022).
 Kalpesh Prashant Mhatre & Shivangi Mundhra, Confession and Its Relevance in the
Indian Evidence Act, 5 INDIAN J.L. & LEGAL RSCH. 1 (2023).

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STATEMENT OF JURISDICTION

The petitioners humbly submit to this Hon’ble Court’s jurisdiction under Article 32 and 134
of the Constitution of India, 1950. The memorandum of petitioners sets forth the facts and the
laws on which the claims are based.

Article 32 of the Constitution of India, 1950

32. Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

Article 134 of the Constitution of India, 1950

134. Appellate jurisdiction of Supreme Court in regard to criminal matters:

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court-

(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to
death; or

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(b) has withdrawn for trial before itself any case from any court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to death; or

(c) certifies under article 134A that the case is a fit one for appeal to the Supreme Court:

Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be
made in that behalf under clause (1) of article 145 and to such conditions as the High Court
may establish or require.

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and
hear appeals from any judgment, final order or sentence in a criminal proceeding of a High
Court in the territory of India subject to such conditions and limitations as may be specified
in such law.

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STATEMENT OF FACTS

1. Arjun Sharma was the resident of Lotus Colony located in district Saffron Hills of the
state of Kurala. He was the son of a local grocer (Ramesh Sharma) and worked as a
security guard at Emerald Valley University. Priya Gupta, who was the daughter of a law
enforcement officer, also resided in the same colony. Both fell in love and wanted to
marry each other. However, Priya’s family was against the union. They opposed her
marrying someone they deemed socially inferior. On 10th January 2021, with the
assistance of some friends, they eloped and married the next day following Hindu
customs.
2. Two days later (12th January 2021), while buying groceries in the morning, Priya’s father
(Vikram Gupta) while conversing with locals used derogatory language against Arjun and
his family. On the same day, Vikram Gupta and his son Aditya Gupta (Priya’s brother)
went to Arjun’s house and verbally abused his parents. They also assaulted Arjun’s
younger brother, who required medical treatment. Ramesh also alleged that Aditya Gupta
utilized his connections in law enforcement to intimidate him and his family. Later that
day, Vikram Gupta’s neighbor Rakesh (Prosecution Witness-1) overheard Vikram Gupta
and his son discussing harming someone. However, he was unsure about the identity of
the intended victim.
3. After their marriage, Arjun and Priya relocated to live with Arjun’s aunt (Nandini
Sharma) who resided in Jasmine Colony. Priya also had some relatives living in the same
colony, but they seemed to have distanced themselves from her due to her marriage to
Arjun. Nandini Sharma also provided Arjun with financial assistance to establish a
pharmacy. Priya managed the pharmacy while Arjun continued his job at the university.
However, both of them spent evenings together in the pharmacy after Arjun returned from
work.
4. On 12th March 2021, around 6:30 p.m., unidentified individuals vandalized the
pharmacy, breaking its windows. They violently assaulted the couple and stole most of
the medications. Rishi Patel (Prosecution Witness-2) witnessed a car with license plate
number KL 02CD 7E7E (registered under Vikram Gupta’s name) leaving the Jasmine
Colony area at 9:00 p.m.

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5. On 13th March 2021, Arjun filed a complaint with the local police station and named
Vikram Gupta as one of the suspects. During the investigation, the police determined that
Vikram Gupta was out of town on the day of the incident. The case was subsequently
closed due to lack of evidence. However, Arjun maintained that although Vikram Gupta
was absent, he orchestrated the attack.
6. Arjun and Priya typically returned home at 7:00 p.m. after closing their pharmacy.
However, on 11th October 2021, they did not return at their usual time. When Nandini
Sharma did not hear from them until 10:00 p.m., she went to the police station and filed a
report. The police traced Arjun’s cellphone to a location near Krishna Temple. Despite
sending a team to the location, they found nothing.
7. Two days later, Mr. Sanjay Mehta (resident of Krishna Temple) discovered two bodies on
the bank of River Ganges. He promptly notified the police. Upon arrival, the police
identified the bodies as those of Arjun and Priya. The families of the deceased were
informed about the incident, and the bodies were sent to Government Medical College
Kurala for autopsy. Subsequently, a complaint was filed based on Mr. Sanjay Mehta’s
information.
8. Inspector Ravi Kumar was appointed as the investigating officer. After initial
investigation, the complaint was amended, and Vikram Gupta, his son Aditya Gupta,
Nikhil Sharma (Vikram Gupta’s bodyguard), and Mohan Das (Vikram Gupta’s servant)
were identified as prime suspects. The police raided Vikram Gupta’s residence and
arrested all the suspects. They also discovered a locally made firearm and bloody clothing
in the servant quarters, which were collected as evidence and sent for forensic analysis.
Additionally, a large quantity of explosive materials was found at the residence. When
questioned, Vikram Gupta claimed that they were used by their gardener.
9. The suspects were brought before the chief judicial magistrate Kurala, who remanded
them to police custody for 14 days to facilitate further investigation.
10. The post-mortem report on Arjun’s body indicated numerous injuries sustained before
death. The post-mortem report on Priya’s body suggested the possibility of sexual assault
before her death.
11. After concluding the investigation, the investigating officer submitted the final report to
the competent court, which took cognizance of the matter. The report named Vikram
Gupta (Accused 1), Aditya Gupta (Accused 2), Nikhil Sharma (Accused 3), and Mohan
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Das (Accused 4) as the accused in the murder of Arjun Sharma and Priya Gupta.
Subsequently, the prosecuting officer filed a charge-sheet, accusing the defendants of: a.
Murder under Section 302 of the Criminal Code b. Rape under Section 375 of the
Criminal Code.
12. During the trial, the prosecution informed the court that Mohan Das (Accused No. 4) had
confessed to the crime at the police station. Das voluntarily underwent a narco-analysis
test (without legal representation) and reiterated the statement given to the police. The
prosecution informed the court that Das had agreed to testify for the state and wished to
confess before the court. However, when presented before the court, the accused recanted
the testimony given to the police. He informed the court that the statement given to the
police was made under duress and that the narco-analysis test was inadmissible. After
considering all evidence and witness testimonies, the court found all the accused guilty of
murder on 06.05.2023. In reaching this conclusion, the court relied on the confession
made by accused no. 4, corroborated by the narco-analysis test. The court also found
accused no. 3 guilty of rape. The court sentenced all the accused to death. The accused
appealed the decision to the High Court of Kurala, which upheld the trial court’s verdict
and confirmed the death sentences. The accused have now appealed to the Supreme Court
of India, which has agreed to hear the appeal [Cr. App. No. 221 of 2023].
13. Coalition against Capital Punishment, Kurala [CCPK], a think tank based in Saffron
Hills, established by a group of legal scholars in 2018, has been advocating for the
abolition of the death penalty since its inception. It has been raising awareness about the
issue and has provided assistance to the High Court and the Supreme Court in numerous
death penalty cases. On 14.05.2023, they filed a Public Interest Litigation [W.P. No. 08 of
2023] in the High Court of Vidya Pradesh, challenging the constitutionality of the death
penalty. They argued that the case of Bachan Singh v. State of Punjab was decided long
ago, and circumstances have changed since then. They particularly cited the 2016 Death
Penalty report of National Law University, Delhi, to illustrate the inhumane and
degrading treatment, especially the inadequate representation received by death penalty
convicts. They also relied on reports from the Law Commission of India and various
international sources to support their argument. Agreeing with CCPK’s counsel that the
case of Bachan Singh v. State of Punjab needs to be reconsidered and the issue of the

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death penalty re-evaluated by the Supreme Court, the High Court of Vidya Pradesh
allowed CCPK to withdraw the writ petition and file it in the Supreme Court.

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STATEMENT OF ISSUES

I. Whether the trial court and the High Court of Kurala were correct in finding the
accused guilty of murder?

II. Whether the trial court and the High Court of Kurala were correct in finding accused
no. 3 guilty of rape and accused no. 1 and 2 guilty of abetment to rape?

III. Considering the need to reconsider Bachan Singh v. State of Punjab, whether the
death penalty is constitutionally valid in light of the same?

IV. Assuming that the death penalty is valid, did the trial court err in sentencing all the
accused in State of Kurala v. Vikram Gupta & Ors. to death?

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V. SUMMARY OF ARGUMENTS

ISSUE I:

Whether the trial court and the High Court of Kurala were correct in finding the
accused guilty of murder?

It is submitted before the Hon’ble Supreme Court of India that the trial court and the High
Court of Kurala were not correct in finding the accused guilty of murder under Sections 302
and 300 of the Indian Penal Code as the prosecution has failed to establish that the acts of
accused fulfilled the essential of the murder i.e., Actus reus and Mens rea. The border on
proof lies on the prosecution but the prosecution has only made the allegations and no
evidence has provided support such allegations. Additionally, There is no direct evidence
linking the accused persons, to the alleged offense. There is no direct evidence in the sense of
eye-witness account to connect the accused with the crime in question. The prosecution fails
to fully establish the chain of evidence from the facts which could fully establish the guilt of
accused beyond any reasonable doubt. And the evidence given by the eyewitnesses was
proven wrong as it is evident from the facts that the accused was not in town on the day of the
incident. Furthermore, the presence of mere suspicion, without any supporting facts or
circumstances, is insufficient to prove guilt beyond a reasonable doubt. As the prosecution
fails to meet this burden of proving, the accused is entitled to the benefit of doubt and should
therefore be acquitted.

ISSUE II:

Whether the trial court and the High Court of Kurala were correct in finding accused
no. 3 guilty of rape and accused no. 1 and 2 guilty of abetment to rape?

In our humble submission before the Hon’ble Supreme Court, the counsel contends that both
the trial court and the High Court of Kurala have erred in finding accused no. 3 guilty of rape
and accused no. 1 and 2 guilty of abetment to rape. There is a lack of concrete evidence
proving that Accused 3 raped Priya. The prosecution has failed to present any such evidence
implicating the appellants in the murder and rape. Regarding the admissibility of the Narco

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Analysis Test, it involves the administration of a drug that induces a hypnotic trance-like
state. The statements made in this state are not considered voluntary and therefore cannot be
admitted as evidence.

In the present case, the guidelines laid down by the Supreme Court in Selvi v. State of
Karnataka have not been properly followed. The accused was not given access to a lawyer
during the Narco Analysis Test, which is a violation of the guidelines. Therefore, the results
of the test cannot be relied upon or used against the accused. Furthermore, the confession of
accused no. 4, recorded in the police station while in custody, cannot be proved against the
appellants under the provisions of the Indian Evidence Act. There is not a single piece of
evidence or reliable statement made by any prosecution witness against the appellants that
proves their involvement in the alleged crime.

Moreover, the investigating officers have failed to conduct a proper investigation. They have
not conducted a DNA profiling test or collected important evidentiary clues, such as vaginal
secretions, foreign hairs, semen stains, and fingernail scrapings, which could link the culprit
to the crime. The post-mortem report is also silent on whether these necessary steps were
taken, leaving room for doubt in favour of the accused.

ISSUE III:

Considering the need to reconsider Bachan Singh v. State of Punjab, whether the death
penalty is constitutionally valid in light of the same?

The counsel humbly submits before the Hon’ble Supreme Court that the case of Bachan
Singh v. State of Punjab, which upheld the validity of the death penalty, was delivered in
1980. It has been 44 years since the judgment, and it is time to reconsider a practice that has
been abolished by 66% of countries. The court’s proposal to impose the death penalty only in
the rarest of rare cases has been reiterated in subsequent decisions. However, concerns about
arbitrariness and discriminatory application of the penalty persist. The Law Commission’s
262nd report recommends eventual abolition of the death penalty in India, except in cases of
terrorism and waging war against the state. The reasons for abolition include changing times,
ineffectiveness as a deterrent, arbitrariness in sentencing, potential for misapplication, failure
of mercy powers, delays in trials and appeals, and India being in the minority on the death
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penalty. The empirical study by the National Law University reveals that a majority of death
row prisoners for terror offenses belong to marginalized communities. Additionally, the death
penalty is overused, with a low confirmation rate on appeal. Considering these factors, the
counsel urges the court to abolish the death penalty and adopt a reformative approach to
punishment that focuses on rehabilitation and societal harmony.

ISSUE IV:

Assuming that the death penalty is valid, did the trial court err in sentencing all the
accused in State of Kurala v. Vikram Gupta & Ors. to death?

The counsel respectfully argues before the Hon’ble Supreme Court that the
accused in the case should not be sentenced to death. The counsel establish that
the accused is not guilty of murder and that the act does not meet the criteria for
being classified as the “rarest of rare” cases, which is typically necessary for
imposing the death penalty. The expression “rarest of the rarest cases in
accordance with death penalty” is used to describe cases where the crime is so
heinous, and the circumstances are so aggravating that the death penalty is the
only appropriate punishment. Also, without proper evidence, the accused cannot
be convicted under the death penalty.

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ARGUMENTS ADVANCED

I. Whether the trial court and the High Court of Kurala were correct in finding the
accused guilty of murder?

It is submitted before the Hon’ble Supreme Court of India that the trial court and the High
Court of Kurala were not correct in finding the accused guilty of murder.

I.1. Appellant is not guilty under section 302 of the Indian Penal Code, 1860.

It is humbly submitted before the Hon’ble court that the appellant is not liable for the
offence of Murder of deceased under section 300 of the Indian penal code, 1860. and shall
not be punished under section 302 because the elements to constitute a crime of Murder
under section 300 of IPC are not fulfilled in the present case so the appellant is not liable for
the offence of Murder of the deceased.

It is humbly submitted that Section 302 of the Indian Penal Code, 1860 prescribes
punishment for committing the offence of murder. In case of Rampal Singh v. State of U.P.1
Abdul Waheed Khan &Ors v. State of A.P.2, Virsa Singh v. State of Punjab3 and Rajwant
and Anr. v. State of Kerala4 it has been said and stated by various judges that to constitute a
case for murder a person shall do an act:

1. With the intention of causing death, or;

2. With the intention of causing such bodily injury as is likely to cause death, or;
3. With the knowledge that such an act is likely to cause death.

In cases like Ruli Ram v. State of Haryana5; Augustine Saldanha v. State of Karnataka6;
State of U. P. v. Virendra Prasad 7; Chacko v. State of Kerala8 and S. N. Bhadolkar v. State
of Maharashtra9 It was observed in all these cases that the prosecution must prove the facts

1
(2012) Cri. L.J. 3765.
2
(2002) 7 S.C.C. 175.
3
A.I.R. 1958 S.C. 465.
4
A.I.R. 1966 SC. 1874.
5
(2002) 7 SCC. 691.
6
(2003) 10 SCC. 472.
7
(2004) 9 SCC. 37.
8
(2004) 12 SCC. 269.
9
(2005) 9 SCC. 71.
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before it can bring a case under Section 300. First, it must establish quite objectively, that a
bodily injury is present; secondly, the nature of the injury must be proved. These are purely
objective investigations; thirdly, it must be proved that there was an intention to inflict that
particular injury, that is to say, that it was not accidental or unintentional or that some other
kind of injury was intended. Once these three elements are proved to be present, the enquiry
proceeds further, and fourthly; it must be proved that the injury of the type just described
made up of the three elements set out above was sufficient to cause death in the ordinary
course of nature. This part of the enquiry is purely objective and inferential and has nothing
to do with the intention of the offender.

I.1.1. Accused doesn’t have Mens rea:

The counsel submits that the prosecution has failed to establish the mens rea on the
ground that accused doesn’t have intention/ motive to commit the offence. In the case Saddik
& Ors. v. State of Gujarat10, it was held that to prove the intention of the Accused, the
prosecution needs to show that there was the intention to inflict that particular injury which
caused the death of the deceased, and it was not accidental or unintentional or that some other
injury was intended.11

In the present case, Vikram Gupta, and Aditya Gupta i.e., Accused No. 1&2 has no intention
to hurt or kill Arjun Sharma and Priya Gupta. The anger of the Accused is merely because of
the disobedience of his daughter but that doesn’t mean that he intended to kill her and her
husband. There is no evidence provided by the prosecution to prove the intention of the
accused persons. It is nowhere mentioned in the facts that the Vikram Gupta explicitly
mentioned that he wants to harm and kill the deceased persons. And also, the evidence given
by Prosecution Witness -1 that he overheard Vikram Gupta and his son discussing harming
someone cannot prove conclusively that they were discussing about the Arjun and Priya. It is
also found in the investigation that Vikram Gupta was out of town on the day of the incident.
The Accused haven’t even been in contact with the deceased for six months and no fact
mentions that they have received any threats from the accused. Out of sudden when the death
of Arjun and Priya, the accused can’t be said to have intention and convicted.

10
(2016) 10 SCC 663.
11
Rampal Singh v State of U.P, (2012) 8 SCC; Virsa Singh v. State of Punjab, AIR 1958 SC 465.
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I.1.2. Actus reus of the accused is not established.

Actus Reus is the physical aspect of a crime. The accused needs to have done
something or omitted to do something, resulting in injury to the victim or any related person.
Without a guilty act, there can be no crime. An act alone does not make a crime, however,
and both the intention of the person and the act itself, if such act is prohibited, combine to
form the crime.

In the present case, it has not been sufficiently established by the prosecution in this case that
the Accused persons killed Arjun and Priya. The prosecution has failed to produce any direct
evidence that conclusively proves accused involvement in the crime. Without direct evidence,
it becomes difficult to establish the actus reus beyond a reasonable doubt. No fact in the case
mentioned that Accused has acted in any way that resulted in the death of the deceased
persons. The prosecution even failed to produce evidence that the accused was present at the
crime scene. They even failed to produce the forensic report that the blood on the clothing
found in the servant quarters which they collected as evidence belongs to the deceased or
matches the DNA of deceased. Even the evidence of Prosecution Witness 1 & 2 is
circumstantial but not conclusive in nature. Any lack of evidence or failure to establish the
actus reus beyond a reasonable doubt should result in acquittal, as it would be a violation of
accused persons right to a fair trial.

In the case of Hanumant v. State of Madhya Pradesh12, the Supreme Court observed that it
is the duty of the prosecution to establish the guilt of the accused beyond a reasonable doubt.
The court emphasized that the foundation of a criminal conviction must be based on reliable
and credible evidence, and mere suspicion or conjecture cannot form the basis of a
conviction. Any lack of evidence or failure to establish the actus reus beyond a reasonable
doubt should be considered a violation of the accused’s right to a fair trial and should result
in acquittal.

I.2. Burden of proof is on Prosecution.

It is crucial to note that the burden of proof rests with the prosecution to establish the
actus reus. Section 101 of the Indian Evidence Act, 1872 states that the burden of proof

12
AIR 1952 SC 343.
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generally lies on the party who asserts the existence of any fact. In criminal cases, the burden
lies squarely on the prosecution to prove the guilt of the accused beyond a reasonable doubt.
Simply raising suspicion or casting doubt on Accused persons innocence is not sufficient to
meet this burden.

In the landmark judgment of State of Rajasthan v. Kundan13, the Supreme Court reiterated
the principle that the prosecution must prove the guilt of the accused beyond a reasonable
doubt by producing reliable and cogent evidence. The court held that if the prosecution fails
to establish the essential ingredients of the offence, the accused is entitled to an acquittal.

I.3. Circumstantial evidence is unreliable.

The Supreme Court has again and again reiterated that the 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 was held that, in other words, the Chain of evidence must
be complete with fully established circumstances not to leave any reasonable ground for a
conclusion consistent with the innocence of accused and it must be such as to show that
within all human probability the act must have been done by the accused. It should be of
conclusive nature.14

In Padala Veera Reddy v. State of A.P15, the Supreme Court held that when a case rests upon
circumstantial evidence, such evidence must satisfy in order to sustain conviction, that the
circumstantial evidence, must be complete and incapable of explanation of any other
hypothesis other than that of the guilt of the accused and such evidence, should not be
consistent with the guilt of the accused but should be inconsistent with his innocence and the
fact that there are other hypothesis possible and that such hypothesis are more strong and
supported by evidences than that of the prosecution, quashes the hypothesis of the
prosecution that the accused persons have murdered the deceased.

13
AIR 1996 SC 1739.
14
Hanumant v. The State of Madhya Pradesh AIR 1952 SC 343; Tufail (Alias) Simmi v. State of Uttar Pradesh
(1969) 3 SCC 198; Ramgopal v. State of Maharashtra (1972) 4 SCC 625.
15
AIR 1990 SC 79.
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The Hon’ble Supreme Court in Vadlokonda Lenin v State of A.P16, held that “circumstances
on which prosecution relies must be proved beyond all reasonable doubt and such
circumstances must be capable of giving rise to an interference which is inconsistent with any
other hypothesis except the guilt of accused it is only in such an event that conviction of
accused, on basis of circumstantial evidence brought by prosecution, would be permissible in
law” and the fact that there are other hypothesis possible and that such hypothesis are more
strong and supported by evidences than that of the prosecution, quashes the hypothesis of the
prosecution that the accused persons have murdered the deceased.

In the case where the case is mainly based on circumstantial evidence the court must satisfy
itself that various circumstances in the chain of evidence should be established clearly and
that the completed chain must be such as to rule out innocence of the accused. 17 When even a
link breaks away the chain of circumstances gets snapped and other circumstances cannot in
any manner establish the guilt of the accused beyond all reasonable doubt.18

In the present case, the prosecution has to prove whether there is a chain of circumstantial
evidence’ which leads to the guilt of the defendant without any doubt. The prosecution, till
now has failed to do that. The above-mentioned cases clearly state that we must prove the
guilt through circumstantial evidence in such a way that there is no chance of leaving a doubt
or any other hypothesis. There is no direct evidence linking the accused persons, to the
alleged offense. There is no direct evidence in the sense of eye-witness account to connect the
accused with the crime in question. The prosecution fails to fully establish the chain of
evidence from the facts which could fully establish the guilt of accused beyond any
reasonable doubt. And the evidence given by the eyewitnesses was proven wrong as it is
evident from the facts that the accused was not in town on the day of the incident. The
prosecution alleged that accused went to the Arjun’s house and assaulted Arjun’s brother,
which is also according to investigation of the police. Hence, we can clearly see that
prosecution has been trying to produce the false evidence and accusations on my client. And
the prosecution even failed to produce any witness that the accused persons are involved in
the death of the deceased persons. The absence of any eyewitness testimony or concrete

16
2012 XII SCC 260.
17
Mohan Lal v. State of UP AIR 1974 SC 1144.
18
Janarlaldas v. State of Orissa 1991 (3 SCC 27).
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evidence, in relation to death of Arjun and Priya, directly implicates the accused in the
incident raises doubts about his involvement.

The prosecution even failed to provide forensic report and show that the blood on the
clothing found in the servant quarters which they collected as evidence belongs to the
deceased or matches the DNA of deceased. The judgement of the trial court and High Court
was solely based on the narco-analysis test which is inadmissible in the court of law. The
discussion underlying the inadmissibility of Narco- analysis test is dealt at length under
Issues II.

There is yet another basic rule of criminal jurisprudence that if two views are possible on the
evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the
accused and the other to his innocence, the Court should adopt the latter view favourable to
the accused.19 The facts provided do not present any clear circumstantial evidence that would
connect the accused to the alleged offense. The presence of mere suspicion, without any
supporting facts or circumstances, is insufficient to prove guilt beyond a reasonable doubt.

I.4. Doctrine of Benefit of doubt:

The doctrine of benefit of doubt is a fundamental principle in criminal law which

holds that if there is any reasonable doubt or ambiguity in the evidence presented by the
prosecution, it should be resolved in favor of the accused. It is based on the presumption of
innocence until proven guilty and ensures that an accused person is not convicted on the basis
of mere suspicion or conjecture.

The doctrine is based on the principle that it is better to let a guilty person go free than to
convict an innocent person. It places the burden of proof squarely on the prosecution, who
must establish the guilt of the accused beyond a reasonable doubt. If the prosecution fails to
meet this burden, the accused is entitled to the benefit of doubt and should therefore be
acquitted. The principle of benefit of doubt applies not only to doubts regarding the elements
of the offence but also extends to doubts about the identification of the accused, the
credibility of witnesses, or the reliability of evidence. Courts in India consistently uphold this
principle to ensure fair trials and protect the rights of the accused.
19
Harendra Narain Singh Etc vs State of Bihar 1991 AIR 1842 (SC).
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The Supreme Court, reiterating the principle in the case of Kishore Chand v. State of H.P 20
held that whether the facts leads to the inference of the guilt of the accused or not is another
aspect and in dealing with the aspect of the problem, the doctrine of benefit would apply and
an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence
of the accused and are consistent only with the guilt. In order words there must be chain of
evidence so far consistent and complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such, as to show that
within all probability, the act must have done by the accused and the accused alone.

Section 232 of Code of Criminal Procedure provides that if after taking the evidence for the
prosecution, examining the accused, and hearing the prosecution and the defense on the point,
the Judge considers that there is no evidence that the accused committed the offence, the
judge shall record an order of acquittal.

In Kedar Nath v. State of Madhya Pradesh21 it was held that when there was no evidence as
to how death came about, evidence relating to charge of murder was held to be insufficient
and unacceptable. In a recent case where the cause of death is recorded as ‘asphyxia as a
result of strangulation’ but there was no external mark or symptoms of strangulation on the
body of the deceased, the Supreme Court gave the benefit of doubt to the accused.22

In the case State of Gujarat v. Mohonlal Kuberdas Upadhya23 it was held that when the
court is called upon to arrive at a finding as to the real intention of the accused in committing
a particular offence, the Court is expected to consider every available circumstance and
should accept only that conclusion which could be arrived at beyond reasonable doubt.

In the case at hand, the prosecution has failed to prove that accused is guilty beyond
reasonable doubt as there is no clear evidence of accused involvement in the crime. The
respondent’s arguments are leaning towards the fact that crime may have been committed by
the accused however they have failed to make the link between ‘may have committed’ and

20
1990 AIR 2140.
21
AIR 1991 SC 1224.
22
Tomaso Bruno v. State of U.P 2015 CrLJ 1690: 2015 (1) SCALE 498.
23
1975 Guj LR 263.
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‘must have committed’ and the gap must be filled by the respondent by the legal, logical,
reliable, and unimpeachable evidence before a conviction can be sustained.24

Hence, the trial court and the High Court was erred in convicting the accused for murder
under Section 302 of Indian Penal Code.

24
I, NELSON Indian Penal Code p. 2905 10 Edition 2008.
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II. Whether the trial court and the High Court of Kurala were correct in finding
accused no. 3 guilty of rape and accused no. 1 and 2 guilty of abetment to rape?

It is humbly contended before this Hon’ble Supreme Court that trial court and the High
Court of Kurala were erred in finding accused no. 3 guilty of rape and accused no. 1 and 2
guilty of abetment to rape. There is no concrete evidence which proves that Accused 3 has
raped Priya i.e., prime facie the prosecution has failed to produce any such evidence which
shows the involvement of the Appellants in the commission of murder and rape.

II.1. Narco Analysis Test Is Not Admissible.

This test involves the intravenous administration of a drug that causes the subject to
enter a hypnotic trans. Since a person subjected to the narco-analysis test is in a half-
conscious state and loses awareness of time and place, this condition can be compared to that
of a person who is in a hypnotic state. “Statements made in a hypnotic state were not
voluntary and hence they cannot be admitted as evidence.”25 In the concurring judgment,
Beetz J. has observed that:

“I refrain from commenting on such practices, short of noting that even the consensual use of
hypnosis and narco analysis for evidentiary purposes may present problems. Under normal
police interrogation, a suspect has the opportunity to renew or deny his consent to answer
each question, which is no longer the case once he is, although by consent, in a state of
hypnosis or under the influence of a ‘truth serum’.”

This case clearly indicates that confession made even in a voluntary Narco Analysis Test is
against self-incrimination and thereby violative of Art 20 (3) of Indian Constitution.26

In Selvi v. State of Karnataka27, while addressing to the question whether the results derived
from impugned techniques amounts to testimonial compulsion thereby attracting the bar of
Art 20(3), the SC observed:

25
Horvath v. R [(1979) 44 C.C.C (2d) 385].
26
Art. 20 (3) of Indian Constitution - No person accused of any offence shall be compelled to be a witness
against himself.
27
2010 7 SCC 263.
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“It is quite evident that the narco analysis technique involves a testimonial act. A
subject is encouraged to speak in a drug-induced state, and there is no reason why such an
act should be treated any differently from verbal answers during an ordinary interrogation.
In one of the impugned judgments the compulsory administration of the narco analysis
technique was defended on the ground that at the time of conducting the test, it is not known
whether the results will eventually prove to be inculpatory or exculpatory. We have already
rejected this reasoning. We see no other obstruction to the proposition that the compulsory
administration of the narco analysis technique amounts to ‘testimonial compulsion’ and
thereby triggers the protection of Article 20 (3).”28

In the same case SC laid down certain guidelines to be followed for conducting Narco
Analysis Test. Some of the guidelines to be strictly adhered to while conducting NAT are laid
down below:

i. If the accused volunteers for a Lie Detector Test, he should be given access to a
lawyer, and the physical, emotional and legal implication of such a test should be
explained to him by the police and his lawyer.
ii. The consent should be recorded before a Judicial Magistrate.

In the present matter before the Hon’ble SC, the guidelines given by Apex court in
Selvi’s case29 have not been properly followed. It was strictly mentioned in the guidelines by
the court that NAT must be done in the presence of lawyer but in the instant case, accused
was not given access to lawyer. Hence the results of NAT can’t be relied upon and can’t be
used against the accused.

Additionally, the confession of accused no 4 which was recorded in the police station when
he was in police custody as such cannot be proved against the appellants in the light of

28
Selvi & Ors v. State of Karnataka (2010, 7SCC, 263), para. 130.
29
Ibid.
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provisions contained in section 2430, section 2531 and section 2632 of Indian Evidence Act.
The Hon’ble Supreme court in Bhadur Singh and Another v. State of Vind33 And Hazari
Lal v. State of Delhi ADM held that confession made to the police officer or in the custody of
police to any person whomever unless made in the immediate presence of Magistrate shall be
presumed to have been obtained under the circumstances mentioned in section 24 of Indian
Evidence Act and inadmissible except so for as provided by section 27 of Indian Evidence
Act .

Hence, the narco-analysis test conducted by police officer is inadmissible as specified in

Indian Evidence Act as it can be clearly seen from the facts that it has been conducted
without due consent of the accused and the statement was made under the duress. The police
officers even failed to comply with the due procedure and guidelines made for the purpose of
conducting such test as they conducted test without the legal practitioner.

The appellants have been awarded one of the harshest punishments of death sentence on the
basis of mere presumptions and inferences as opposed to the underlying principles of
criminal jurisprudence of convicting only on the basis of clinching direct or circumstantial
evidence to prove the charge beyond a shadow of reasonable doubt. It is pertinent to mention
here that there is not even a single piece of evidence or even a reliable statement made by any
of the prosecution witness against the appellants which proves that the alleged crime was
committed by appellants.

II.2. Investigating officers have failed to conduct proper investigation.

The investigation officer has failed to do the proper investigation of this matter and
has not investigated many things which are important to determine whether accused has
committed rape or not. There is no evidence other than the post-mortem report that Priya has
been raped which could be false report.
30
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the
confession appears to the Court to have been caused by any inducement, threat or promise having reference to
the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the
Court, to give the accused person grounds which would appear to him reasonable for supposing that by making
it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against
him.
31
No confession made to a police-officer, shall be proved as against a person accused of any offence.
32
No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, shall be proved as against such person.
33
AIR 1954 Sc 322 Paragraph 23.
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Investigating officers even have failed to conduct the DNA profiling test. Investigator must
collect all the evidentiary clues with the help of the doctor including the following:

a. Vaginal secretions and swabs for semen.

b. Foreign hairs and fibres on the person of the victim.
c. Specimen pubic hairs from the victim.
d. Semen stains from the body.
e. Fingernail scraping which may carry fibres, hairs, skin, blood from the culprit. The
evidence can link the culprit, with the victim and hence with the crime.
f. All clothes of the victim wore at the time of occurrence. They carry semen, fibres and
hair, blood stains, saliva stain from the culprit. They also indicate the extent of
bleeding.
g. Clues like stains, injuries and trace evidence on the person of the culprit are collected
by the medico legal expert on the same pattern as in the case of the victim.
h. The forensic experts have a definite role to play in the investigations of sexual
assaults in establishing chain of evidence by corroborative medical evidence and
analysis of the trace evidence results from forensic science laboratory, thus making
conclusion easier and more possible by investigating authorities. The investing officer
failed to give any conclusive proof or even in post-mortem report whether sexual
intercourse was consensual or not.

Collecting the perpetrators DNA as early as possible is crucial to increase chances of

identification of the person who committed the assault. And clearly from the instant case
before the court post-mortem report is silent on the fact whether such things have been done
or not, leaving benefit of doubt in favour of accused.

Hence, in the case at hand, the investigating officers failed to their part of investigation
properly and the prosecution has failed to produce any evidence that accused 4 raped the
deceased no 2 and accused 1 & 2 aided in commission of rape. The prosecution has merely
made allegations on the accused persons based on their assumptions. Furthermore, the trial
court and High court has reached to such conclusion by depending only on the Narco analysis
test which is inadmissible in the court of law. There is no direct or circumstantial evidence
which shows the guilt of the accused persons.
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III. Considering the need to reconsider Bachan Singh v. State of Punjab, whether the
death penalty is constitutionally valid in light of the same?

It is humbly submitted before this Hon’ble Supreme Court that the case Bachan Singh v.
State of Punjab34 upholding the validity of death penalty was delivered in the year 1980 and
it has been 44 years since the judgement, it’s time to reconsider a practice abolished by 66%
of the countries.

The 35th Law Report (“Capital Punishment”, 1967)35, recommended the retention of the
death penalty in India. The Supreme Court has also, in Bachan Singh case36, upheld the
constitutionality of the death penalty, but confined its application to the ‘rarest of rare cases’,
to reduce the arbitrariness of the penalty, saying that reasons to impose or not impose the
death penalty must include the circumstances of the crime and the criminal. However, even
then Justice Bhagwati in his dissenting opinion found the death penalty necessarily arbitrary,
discriminatory, and capricious. He reasoned that “the death penalty in its actual operation is
discriminatory, for it strikes mostly against the poor and deprived sections of the community
and the rich and the affluent usually escape, from its clutches. This circumstance also adds to
the arbitrary and capricious nature of the death penalty and renders it unconstitutional as
being violative of Articles 14 and 21.”

This case affirmed the constitutional validity of the death penalty and set standards for
awarding it. The court’s proposal that the death penalty can only be awarded when it is
considered a rarest of rare cases has been repeated by later benches, demonstrating the
importance of recognizing rare cases in determining the validity of the death penalty. The
principle laid down by the court was further described in the decision of Machhi Singh and
Others v State of Punjab37. The Doctrine of Rare aims to determine the most exceptional and
heinous crimes deserving of the death penalty, reflecting a shift towards a more nuanced and
selective approach to capital punishment. In another case, Santosh Kumar Bariyar vs. The

34
(1979) SCC (3) 727.
35
The 35th Report of the Law Commission (Fourth Law Commission) (1967) said, “Having regard, however,
to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of
morality and education in the country, to the vastness of its area, to the diversity of its population and to the
paramount need for maintaining law and order in the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment”.
36
Supra note 34 at 26.
37
(1983) SCC (3) 470
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State of Maharashtra38 it was stated that the background analysis leading to the conclusion
that the case belongs to the rarest of rare categories must conform to the highest standards of
judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow
exception.

However, the social, economic, and cultural contexts of the country have changed drastically
since the 35th report. Further, arbitrariness has remained a major concern in the adjudication
of death penalty cases in the 44 years since the foremost precedent on the issue was laid
down.

III.1. Death penalty should be abolished.

It is humbly submitted before the Hon’ble Supreme Court that although there are
numerous countries that proscribe death sentences, there is no international consensus to date
regarding its legality. The Indian legal system too, has struggled with the constitutionality of
the death penalty and with delineating the circumstances in which it may be granted.

It is humbly submitted that the 262nd report of the Law Commission came out in August 2015
concludes that ‘the death penalty should eventually be abolished in India except in cases of
terrorism and waging of war against the state to safeguard national security’. In its previous
major review in 1967, the commission had concluded that India could not risk the
“experiment of abolition of capital punishment.” This time around “the Commission feels
that the time has come for India to move towards abolition of the death penalty”.

The major reasons why capital punishment should be abolished in India according to the Law
Commission are:

(1) times have changed;

(2) it is not a deterrent anymore;
(3) sentencing is arbitrary;
(4) administration of capital punishment is vulnerable to misapplication;
(5) mercy powers have failed to act as the final safeguard against the miscarriage of justice;
(6) long delays in trials and appeals and final execution is almost torture; and

38
(2009) SCC (6) 498.
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(7) India is in a minority on death penalty as 140 countries have abolished it.

Furthermore, an empirical study by the National Law University reveals that out of around
385 existing prisoners sentenced to death for terror offences 93.5 per cent belong to Dalit and
religious minority communities. Even in other cases, there is a predominance of people from
lower castes and religious minority communities. They also have a very low level of
education- 24 per cent of them have never stepped into school and belong to the most
marginalised sections of society. Moreover, the results of death penalty cases from 2000 to
2015 are equally startling: for every 100 death sentences that trial courts give, only 4.5 are
confirmed by the higher courts. About 30 per cent are acquitted and the rest are commuted.
This basically highlights the overuse of the award of death penalty.

It is also submitted that in the widely reported case of Bachan Singh39, the majority judgment
of the Supreme Court upheld the constitutional validity of the death penalty for murder under
section 302 of the IPC. But in a vigorous dissent, Justice PN Bhagwati held that section 302
of IPC is unconstitutional and void, and section 302 of IPC read with section 354 of CrPC as
being violative of articles 14 and 21 of the constitution. But he made it clear that his view
applies only to murder cases and not to cases of treason and acts which threaten the security
of the state. These words from the strongest votary against the death penalty are very
revealing. Justice Bhagwati, therefore, endorsed the death penalty for terrorist acts, but not
for murder.

In the context of the Indian Penal Code (IPC), certain offences such as murder (Section 302),
waging war against the state (Section 121), and mutiny (Section 132) are punishable by the
death penalty or life imprisonment. However, when we consider bomb explosions and loss of
life due to terrorist attacks, we are dealing with crimes of a completely different nature. The
objective of terrorist acts is not merely to target specific individuals but to destabilize society
and threaten the security of the nation at large. This distinction is crucial because awarding
the death penalty for terrorist acts, such as under Section 121 of the IPC, is qualitatively
different from imposing it for other offences. Many argue that in cases of terrorist attacks, the
death penalty should be abolished as it constitutes a violation of human rights and represents
an inhumane form of punishment. However, in this context, it’s essential to emphasize that

39
Supra note 34 at 26.
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the primary goal of justice should be to create a homogeneous society rather than adhering
strictly to an “eye for an eye” concept. The aim is not just punitive but also societal stability
and harmony. By abolishing the death penalty for terrorist acts and focusing instead on
rehabilitation, preventive measures, and addressing root causes, we move towards a justice
system that upholds human dignity, promotes social cohesion, and works towards a more
peaceful and unified society.40

We submit laws regarding the prevention of criminal activities or criminals, or heinous

crimes and such laws need to have some enforcement among the particular communities as
well as society at large in India.

Therefore, the counsel humbly submits that it is essential for law to change with respect to
the advancements in the society. In view of the changes that has been taken place in the
society, the death penalty should be abolished.

III.2. Reformative theory should be adopted.

“An eye for an eye will turn the whole world blind”.

– Mahatma Gandhi.

This line by Mahatma Gandhi is the thrust of the Reformative Theory of Punishment.
Crime is a violation of relationships and individuals. It produces responsibilities to rectify the
situation. The victim, the violator, and society are all engaged in the search for remedies that
encourage restoration, reconciliation, and a sense of security.

According to reformative theory, the aim of punishment should be to transform the culprit
through the individualization approach. It is premised on the humane concept that a
wrongdoer does not simply cease to be a living human being just because he commits crimes.
Individualism is central to the reformative theory. It involves the transformation of offenders
and faith in re-educating and trying to reform them.

40
A, P. (2016). Should India Retain the Death Penalty? Liberal Studies Journal, 1(1).
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In the case of Narotam Singh v. State of Punjab41, the Supreme Court observed that the
reformative approach to punishment should be the object of criminal law in order to promote
rehabilitation without offending communal conscience and to secure social justice.

Hence, it is pertinent to note that to ensure justice is served and reduce crime in the society,
the court should adopt reformative theory than imposing capital punishment.

The counsel humbly submits that it has been seen that in many cases although the relevant
facts are similar, the sentencing is different. Many cases are silent with nothing mentioned in
regard to the balance sheet of mitigating or aggravating factors as stipulated for in Machchi
Singh to have a comparison. In some instances, the decision of death sentence is absent due
to political or other factors, while in some political and social pressure become responsible
for inviting the death penalty. The distressing uneasiness that the fate of life-or-death penalty
is invariably dependent on the Coram of the bench, and a different set of judges may have
ended in a different punishment is one which cannot be shaken off the conscience of the
criminal justice system. Hence, it’s imperative to re-consider the relevance of the Bachan
Singh v State of Punjab case concerning the validity of the death penalty.

41
AIR 1978 SC 1542.
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IV. Assuming that the death penalty is valid, did the trial court err in sentencing all
the accused in State of Kurala v. Vikram Gupta & Ors. to death?

It is humbly submitted before the Hon’ble Supreme Court of India that the trial court
erred in sentencing all the accused in the case to death.

IV.1. The accused persons are not guilty of offense.

In the arguments presented before this Hon’ble Supreme Court, the counsel clearly
established that the accused is not guilty of murder under section 302 of Indian Penal Code in
Issue 1 and the accused no. 3 guilty of rape under Section 375 of Indian Penal Code and
accused no. 1 and 2 guilty of abetment to rape in Issue 2 and the trial court and High Court
erred in finding Accused persons guilty of such offenses.

In the light of same arguments, the counsel humbly plead before this hon’ble court that there
is no point of imposing death penalty to the accused where they were not guilty in
committing such offenses.

IV.2. The offence doesn’t fall within the purview of “Rarest of Rare” cases.

It is humbly submitted before the Hon’ble Supreme Court that the case cannot be
considered the rarest of rare cases in accordance with the death penalty.

The validity of the death penalty itself is a subject of debate, with arguments highlighting its
inhumanity, potential for irreversible errors, and lack of deterrent effect. Furthermore, the
case does not meet the criteria for being classified as the “rarest of rare” cases, which is
typically a prerequisite for imposing the death penalty.

The expression “rarest of the rarest cases in accordance with death penalty” is used to
describe cases where the crime is so heinous, and the circumstances are so aggravating that
the death penalty is the only appropriate punishment. These cases are extremely rare, and the
death penalty is only imposed in the most extreme cases.

In the landmark case of Bachan Singh v. State of Punjab 42, the Supreme Court ruled that the
death penalty should only be applied in the “rarest of rare” cases, where the alternative option
42
(1980) 2 SCC 684.
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of life imprisonment is unquestionably foreclosed. The court did not provide an exhaustive
definition of what constitutes the “rarest of the rare” cases but emphasized that the death
penalty should only be imposed in the most exceptional circumstances, where the alternative
of life imprisonment would be inadequate, and the collective conscience of society would be
shocked if the accused were not sentenced to death.

The Supreme Court of India in the case Machhi Singh and Others v. State of Punjab43, has
laid down certain guidelines for determining whether a case falls within the category of
“rarest of the rarest cases”. These guidelines include the following:

 The nature and gravity of the crime.

 The manner in which the crime was committed.
 The motive for the crime.
 The impact of the crime on the victim and the victim’s family.
 The age, mental capacity, and character of the accused.

And also, the court emphasized that the death penalty should be reserved for cases involving
extreme culpability and that mitigating factors should be carefully considered before
imposing the death sentence.

The Supreme Court, in this case, State of Maharashtra v. Goraksha Ambaji Adsul, reiterated
the principles laid down in earlier judgments and emphasized that the “rarest of rare” doctrine
should be applied with great care. The court noted that each case should be examined on its
own merits to decide if it meets the threshold for the death penalty.

In the case of Santosh Kumar Bariyar v. State of Maharashtra 44, the Supreme Court
decided that the rarest of rare decrees serves as a rule in upholding Section 354(3) and
establishes the arrangement that life detention is the standard and death discipline is an
exception.

In the present case, it would be essential to carefully consider the nature of the crime, the
manner in which it was committed, the impact on the victims and their families, and the

43
(1983) 3 SCC 470.
44
(2009) SCC (6) 498
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 190550049

overall circumstances. And also, the mitigating factors that affect them to commit a crime.
Also, without proper evidence, the accused cannot be convicted under the death penalty.

Therefore, in view of the submissions made above, it can be concluded that the
death penalty should only be imposed in the most exceptional circumstances where the crime
is so heinous, and the circumstances are so aggravating that the death penalty is the only
appropriate punishment and in this case, there is no exceptional circumstance to impose such
penalty, the case cannot be considered as rarest of rare cases in accordance with the death
penalty. Hence, the accused persons cannot be punished with death penalty.

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 190550049

PRAYER

Wherefore in the light of issues raised, arguments advanced, authorities cited, and cases
referred to, it is most humbly and respectfully submitted that this Hon’ble Supreme Court,
may hold, adjudge, and declare that:

1. The Accused persons are not guilty of murder under Section 302 of Indian Penal
Code.
2. The Accused no. 3 is not guilty of rape under Section 376 and accused no. 1 and 2
are not guilty of abetment to rape under Section 110 of IPC.
3. Acquit all the Accused persons.
4. Adjudge that death penalty is invalid and should be abolished accordingly.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this, the Appellant as in duty bound, shall humbly pray.

ALL OF WHICH IS HUMBLY PRAYED

RESPECTFULLY SUBMITTED

(COUNSEL ON BEHALF OF APPELLANT)

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MEMORIAL ON BEHALF OF APPELLANT