TEAM NO.

BEFORE THE
HON’BLE SUPREME COURT OF KAKILA
Criminal Appellate Jurisdiction
Criminal Appeal of 20--

IN THE MATTER OF:

RAMDAS BABU……………………………………..………….PETITIONER
V.
STATE OF KAKILA……………………………..……….RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF THE PETITIONER

DRAWN BY THE COUNSELS FOR THE PETITIONER

TABLE OF CONTENTS

CONTENT P.

LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES RAISED
SUMMARY OF PLEADINGS
WRITTEN PLEADINGS

PRAYER
LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION
& And

AIR All India Reporter

Anr. Another

Art. Article

KPC, 1860 The Kakilan Penal Code, 1860

The Constitution The Constitution of Kakila, 1950

Cr.P.C., 1973 The Code of Criminal Procedure, 1973

ed. Edition

e.g. exemplis gratia (Latin)

etc. Et cetera

HC High Court

Hon’ble Honourable

i.e. id est(Latin)

SC Supreme Court of Kakila

SCC Supreme Court Cases

v. Versus

Vol. Volume
INDEX OF AUTHORITIES
BOOKS AND ARTICLES REFERRED
 Juvenile Justice ( Care And Protection Of Children) Act, 2000
 The Code Of Criminal Procedure, 1973
 Kakilan Penal Code, 1860.
 Kakilan Evidence Act, 1872

CASES

 Subramanian Swamy v. Raju, (2014) 8 SCC 390.

 Essa@ Anjum Abdul Razak Memonvs State of Maharashtra, (2013) 13 SCC 1 .
 Mithu vs. State of Punjab, (1983) 2 SCC 277.
 Dadu vs. State of Maharashtra, (2000) 8 SCC 437.
 State of Rajasthan v. Vinod Kumar, (2012) 6 SCC 770.
 Ravji @ Ram Chandra vs. State of Rajasthan, AIR 1996 SC 787.
 Atbir v. Govt. of N.C.T. Delhi, (2010) 9 SCC 1.
 Bachan Singh v. State of Punjab, AIR 1980 SC 898.
 Machi Singh v. State of Punjab, AIR 1983 SC 957.
 Jai Kumar vs. State of Madhya Pradesh, (1999) 5 SCC 1.
 Dhananjoy Chatterjee vs State of West Bengal, (1994) 2 SCC 220.
 State of Uttar Pradesh vsSattan alias Satyendra and Ors, (2009) SCC 736.
 Murari Thakur v. State of Bihar, (2009) 16 SCC 256.
 Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.
 Parag Bhati (Juvenile) v. State of U.P., (2016) SC 509
 Jaya Mala v. Home Secy., Govt., of J&K, (1982) 2 SCC 538.
 Gurdev Singh v. State of Punjab, (2003) 7 SCC 258.
 MotiLal v. State of M.P, (2004) 2 SCC 469
 Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750
 Abuzar Hossain v. State of W.B., (2012) 10 SCC 489.
 Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681.
 Om Prakash v. State of Rajasthan, (2012) 5 SCC 201.
 Jabar Singh v. Dinesh, (2010) 3 SCC 757.
 Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223.
 Jitender Ram @ Jitu v. State of Jharkhand, (2006) 9 SCC 428.
 Mohd Wasim and Ors. v. State of U.P., 1992 Cr.LJ 1299.
 Bhola Bhagat v. State of Bihar, (1997)8 SCC 720.
 Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133.

ONLINE SOURCES

www.manupatra.com

www.judis.nic.in

www.indiankanoon.org

www.legalserviceindia.com

www.thelawdictionary.org

www.oxforddictionaries.com
 STATEMENT OF JURISDICTION

The Appellants humbly approach the Hon’ble High Court under S.374 (1) of the Code of Criminal
Procedure, 1973, which reads as follows:

S.374. Appeals from conviction

1.Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction
may appeal to the Supreme Court.
2.Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial
held by any other Court in which a sentence of imprisonment for more than seven years has been passed
against him or against any other person convicted at the same trial may appeal to the High Court.
3.Save otherwise provided in sub-section (2), any person,
a. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the
first class, or of the second class, or
b. sentenced under section 325, or
c. in respect of whom an order has been made or a sentence has been passed under section 300 by any
Magistrate, may appeal to the court.’

the respondents humbly submit to the jurisdiction of this hon’ble court.

 STATEMENT OF FACTS

RAMDAS BABU………………………………………….…APPELLANT

Vs.

STATE OF KAKILA…………………………………………RESPONDENT

Criminal Appeal No.71/2018

The CI of police, Tripur Rural arrested the Appellant and his brother Subbha Raj for offences
punishable under sections 302 and109 read with Sec 34 of IPC, 1860 for committing Murder of
one of their close relative by name Raju and for abetment of Murder his brother on 25/08/2013

They have been sentenced to imprisonment for life under sections 302/34 IPC and to pay
a fine of RS.500/-.For offences under sections 109/34 IPC ,Subba Raj has sentenced to undergo
rigorous imprisonment for a term of seven years and to pay fine of RS 500/- with default
stipulation both the accused brothers respectively.

On appeal, the High Court of Kalika has upheld the conviction of the Appellant and
acquitted another accused – Subha Raj.

Hence the Appellant- Ramdas filed an appeal in the Supreme Court against Judgment dated
6/11/2017 delivered by the High Court of Kakila.

The Appellant submitted in the Appeal to the Supreme Court at the time of commission
of the said offences, the Appellant had not completed 18 years of age, he was a juvenile within
the meaning of Section 2(K) of the Juvenile Justice(Care and Protection of Children)Act 2000.In
support of his submission he submitted the school leaving certificate.

The Solicitor-General on behalf of the State argued that the appellant who was admittedly
not a juvenile within the meaning of the Juvenile Justice Act 1986,when the offence was
committed by had not completed 18 years of age on that date will not be governed by the
Juvenile Justice (Care and Protection of Children) Act of 2000 and cannot be declared as a
juvenile in relation to the offences alleged to have been committed.
 He further contended that a claim of juvenility cannot be raised before any court at any
stage of appeals expect if it is claimed in lower court at the time s starting that trial proceedings.

The Appellant however prayed the court that he should be considered as a juvenile under
Act of 2000 and he may be released as per the section 15 of the said Act, Appellants has already
undergone an actual period of sentences of 2 years, 4 months and 4 days.
 ISSUES RAISED

1. WHETHER THE APPELANT IS A JUVENILE IN ACCORDANCE WITH THE LAW

OF STATE OF KAKILA?

2. WHETHER THE CLAIM OF JUVENILITY CAN BE RAISED AT ANY OF THE

STAGE OF APPEALS?

3. WHETHER THE SCHOOL LEAVING CERTIFICATE IS ADMISSABLE FOR

DETERMINING AGE OF THE APPELLANT.
 SUMMARY OF PLEADINGS
1) THE APPELANT IS NOT A JUVENILE UNDER JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 1986.
It is submitted that section 2(h) of the Juvenile Justice (Care and Protection of children) Act, 1986
describes a “Juvenile” as either a boy under the age of 16 years or a girl under the age of 18 years.
The true test of juvenility should lie in the mental maturity of the person not his/her age, and
Undue sympathy with juvenile offenders will undermine our judicial system.

2) CLAIM FOR JUVENILITY CANNOT BE RAISED AT ANY STAGE OF APPEALS

EXCEPT IF CLAIMED DURING TRIAL
In reference to the judgment of the Hon’ble Supreme Court in the decided case of Murari Thakur v.
State of Bihar it is submitted that the appellant cannot raise the claim of juvenility before any
court at any stage of appeals except if it is claimed in a lower court at the time of starting the trial
proceedings.

3) SCHOOL LEAVING CERTIFICATE IS NOT A VALID DOCUMENT TO DETERMINE

THE AGE OF A JUVENILE.

It is submitted that, the accused here has committed such a grave and heinous offence that he might
have a strong background to alter the original documents and produce forged documents in the
court so in order to attain justice the court must take another view regarding the age with the help
of any medical tests like, ossification test.
 PLEADINGS

1. THE APPELANT IS NOT A JUVENILE UNDER JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 1986.

It is submitted that section 2(h) of the Juvenile Justice (Care and Protection of
children) Act, 1986 describes a “Juvenile” as either a boy under the age of 16 years or a girl
under the age of 18 years.

Relying on this legal position, in the present case the appellant cannot be termed as a
juvenile. Therefore he is not entitled to any of the privileges that can be availed under the above
mentioned act.

(a) The true test of juvenility should lie in the mental maturity of the person not his/her
age.

It is humbly submitted before this Hon’ble Court that laying down an authoritative
interpretation to Section 2(k) and 2(l) set out therein should be based on the mental maturity of
the person rather than his age. The NCRB report1 shows that the rate of Crimes committed by
Juveniles has shown an increase over the past 10 years and by the data collected by them it
stands at 2.6% as of 2013. The Juvenile Justice Board should be vested with the discretion to
impose punishment beyond three years, as limited by Section 152 if the juvenile is mature
enough and has committed a grave offence which is punishable either with life imprisonment or
death.

The horrendous act of taking away another person’s life evidently implies that he does not
deserve to be treated as a juvenile. The idea behind the act was to provide immunity to
adolescents who commit crime and take steps to reintegrate them in the society but individuals
like Ramdas Babu would pose a serious threat to the society.

It is submitted before this Hon’ble Court that having regard to the object behind the enactment,
the Act has to be read down to understand that the true test of juvenility is not in the age but in
the level of mental maturity of the offender. This, it is contended, would save the Act from

1
Chunni lal Mehta v. Century Spinning & M Co. Ltd. , AIR 1962 SC 1314.
unconstitutionality and also further its purpose. The Act is not intended to apply to serious or
heinous crimes committed by a juvenile. The provisions of Sections 82 and 83 of the Indian
Penal Code states that while a child below seven years of age cannot be held to be criminally
liable2 the criminality of those between 7 and 123 years has to be judged by thelevel of their
mental maturity. The same principle should apply to all children beyond 12 and up to 18 years
also. This is how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously
understood.

In the Bombay Blasts Case4 , a juvenile was tried and convicted along with adults under the
Terrorist and Disruptive Activities Act (TADA), and was denied the protection of the Juvenile
Justice (Care and Protection of Children) Act, 2000, on account of the serious nature of the
offence and was contend that the purport and effect of Section 1(4)5 of the Act (Amendment
2006) must be understood in a limited manner.

Elaborate statistics have been laid before us to show the extent of serious crimes committed by
juveniles and the increase in the rate of such crimes6. Also, if mature and cognitive individuals
are given the armor of a Special Law allowing them to commit offences under the Indian Penal
Code without any liability, they would breed within themselves enraged criminals with psychotic
tendencies. Fake birth certificates would throng and act as a weapon of defense against
prosecution for their wrongdoings. This is against the principles of natural justice and against the
nature of an intelligent civilized society.

It is urged before this Hon‟ble Court that such a child did not deserve to be treated as a child and
be allowed to re-mingle in society, particularly when the identity of the child is to be kept a
secret under Sections 19 and 21 of the Juvenile Justice (Care and Protection of Children) Act,
2000. Furthermore, the provisions of Section 19 of the Act, which provides for removal of
disqualification attaching to conviction, are also illogical and were liable to be struck down. It is
humbly submitted that in order to prevent repeated offences by an individual, it is necessary to
maintain the records of the inquiry conducted by the Juvenile Justice Board, in relation to
2
Section 82, The Indian Penal Code, 1860.
3
Section 83, The Indian Penal Code, 1860
4
Essa@ Anjum Abdul RazakMemonvs State of Maharashtra, (2013) 13 SCC 1 .
5
Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall
apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with
law under such other law
6
Subramanian Swamy v. Raju, (2014) 8 SCC 390.
juveniles so that such records would enable the authorities concerned to assess the criminal
propensity of an individual, which would call for a different approach to be taken at the time of
inquiry.

Lastly, it is submitted before this Hon‟ble court that mitigating circumstances has to be
considered for imposition of sentence of death to accused7 . In the case of Bachan Singh8 and
Machhi Singh9 the court laid down various principles for awarding sentence and said that the age
of the accused is a relevant consideration but not a determinative factor by itself. It is urged that
in many cases children between the ages of sixteen to eighteen years were, in fact, being
exploited by adults to commit heinous offences who knew full well that the punishment therefore
would not exceed three years.

(b) Undue sympathy with juvenile offenders will undermine our judicial system

It is humbly submitted that the ban on jurisdiction of criminal courts by Section 7 of the Act10 is
unconstitutional in as much as it virtually ousts the criminal justice system from dealing with any
offence committed by a juvenile. Parliament cannot make a law to oust the judicial function of
the courts or even judicial discretion in a matter which falls within the jurisdiction of the courts.
Reliance in this regard is placed on the judgments of Supreme Court in the case of Mithu vs.
State of Punjab11 and Dadu vs. State of Maharashtra12.

It is submitted that punishment should always be proportionate/commensurate to the gravity of

offence.13 The same has been reiterated in the case of Ravji @ Ram Chandra vs. State of
Rajasthan14 , where the Court held that it is the nature and gravity of the crime but not the
criminal, which are germane for consideration of appropriate punishment in a criminal trial.

In Jai Kumar vs. State of Madhya Pradesh15, the SCopined imposition of appropriate punishment
is the manner in which the courts respond to the society's cry for justice against the criminals.
Justice demands that courts should impose punishment befitting the crime so that the courts
7
Atbir v. Govt. of N.C.T. Delhi, (2010) 9 SCC 1.
8
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
9
Machi Singh v. State of Punjab, AIR 1983 SC 957.
10
Supra at 2.
11
Mithu vs. State of Punjab, (1983) 2 SCC 277.
12
Dadu vs. State of Maharashtra, (2000) 8 SCC 437.
13
State of Rajasthan v. Vinod Kumar, (2012) 6 SCC 770.
14
Ravji @ Ram Chandra vs. State of Rajasthan, AIR 1996 SC 787.
15
Jai Kumar vs. State of Madhya Pradesh, (1999) 5 SCC 1.
reflect public abhorrence of the crime. The court must not only keep in view the rights of the
criminal but also the rights of the victim of crime and the society at large while considering
imposition of appropriate punishment.16

It is urged before this Hon’ble Court that undue sympathy to impose inadequate sentence would
do more harm to the justice system to undermine the public confidence in the efficacy of law and
society could not long endure under such serious threats.17 It is, therefore, the duty of every court
to award proper sentence having regard to the nature of the offence and the manner in which it
was executed or committed etc.

The counsel respectfully submits that if a person is old enough to murder then he is old enough
to be tried along with adults and that is why he contends that the criterion of eighteen (18) years
set out in the JJ Act should not comprehend cases of grave offences in general that shakes the
root of humanity in general.

2. CLAIM FOR JUVENILITY CANNOT BE RAISED AT ANY STAGE OF APPEALS

EXCEPT IF CLAIMED DURING TRIAL

It is submitted that the appellant cannot raise the claim of juvenility before
any court at any stage of appeals except if it is claimed in a lower court at the time of
starting the trial proceedings.

We would like to refer to the judgment of the Hon’ble Supreme Court in the decided caseof
MurariThakur v. State of Bihar18 had stated the following:

“Learned counsel for the appellant firstly submitted that the appellants are entitled to the benefit
of the Juvenile Justice (Care and Protection of Children) Act 2000 as amended by the
amendment of 2006. We are of the opinion that this point cannot be raised at this stage because
neither was it taken before the Trial Court nor before the High Court. Even otherwise we do not
find any merit in the said contention. The question of age of the accused appellants is a question
of fact on which evidence, cross- examination, etc. is required and, therefore, it cannot be

16
Dhananjoy Chatterjee vs State of West Bengal, (1994) 2 SCC 220.
17
State of Uttar Pradesh vsSattan alias Satyendra and Ors, (2009) SCC 736.
18
Murari Thakur v. State of Bihar, (2009) 16 SCC 256.
 allowed to be taken up at this late stage. Hence, we reject this submission of the learned counsel
for the appellant.”

In the present case, the appellant has claimed for juvenility on appeal to the hon’ble
Supreme Court after the completion of the trial proceedings and further appeal to the High Court.
As stated in the above mentioned case, the question of age of the accused is a question of fact on
which evidence, cross-examination, etc, is required and, therefore, it cannot be allowed to be
taken up at this late stage, especially after the court convicted him and the appellant has
undergone an actual period of sentence of 2 years, 4 months and 4 days. Therefore, the state
prays to the hon’ble court to dismiss the appeal.

3. SCHOOL LEAVING CERTIFICATE IS NOT A VALID DOCUMENT TO

DETERMINE THE AGE OF A JUVENILE.

It is submitted that, the accused here has committed such a grave and heinous offence that he
might have a strong background to alter the original documents and produce forged documents in
the court so in order to attain justice the court must take another view regarding the age with the
help of any medical tests like,ossification test. Similar approach has been taken by the Hon‟ble
Supreme court when an accused commits a grave and heinous offence and thereafter attempts to
take statutory shelter under the guise of being a minor,19 a casual or cavalier approach while
recording as to whether an accused is a juvenile or not cannot be permitted as the courts are
enjoined upon to perform their duties with the object of protecting the confidence of common
man in the institution entrusted with the administration of justice.20

It is further submitted that, if ossification test is done for a single bone the error may be two
years either way. But if the test is done for multiple joints with overlapping age of fusion the
margin of error may be reduced. Sometimes this margin is reduced to six months on either side.21

Moreover it is submitted that, although the test of reasonable doubt directs to give the benefit to
the accused, but it is submitted that in the present since the crime committed is so serious and
heinous in nature that the court cannot afford to give statutory benefit to the accused and hence

19
Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714.
20
ParagBhati (Juvenile) v. State of U.P., (2016) SC 509
21
Modi's Medical Jurisprudence and Jhala&Raju's Medical Jurisprudence, ISBN 9788180386961, Lexis Nexis, 6th
Edn., p. 198.
even though matriculation certificates are available but the court must opt for an ossification test
to be doubly sure as the test may provide a surer basis for determining the age.22

The counsel most humbly submits that the present case is an exceptional case which warrants the
awarding maximum penalty under the law to the accused.23 The crime committed by the accused
is not only shocking but it has alsojeopardized the society. The awarding of lesser sentence only
on the ground of the appellant being a youth at the time of occurrence cannot be considered as a
mitigating circumstance in view of our findings that the murders committed by him were most
cruel, heinous and dastardly.24 We have no doubt that the present case is the rarest of rare case
requiring the maximum penalty imposable under law." So, the court must also opt for
ossification test to determine the age, since ordinary procedure must be given special protection
here.

(a) The Documents Can’t Always Be Relied Upon As They Can Be Forged By -the
Accused

It is most humbly submitted before the Hon‟ble Court that the school records and transfer
certificates did not satisfy the condition laid down in Section 35 of the Evidence Act25 inasmuch
as the entry was not in any public or official register and was not made either by a public servant
in the discharge of his official duty or by any person in performance of a duty specially enjoined
by the law of the country,26 and hence, there is need for a proper examination to determine the
age of the accused which is ossification test.

It is submitted that, the documents can be forged by the accused just to enjoy the benefits of the
act which is bad in the eyes of law and reliance can’t be place onsuch documents especially
when the offence committed is so serious in nature as in the present case. In Jyoti Prakash Rai v.
State of Bihar27 , the Hon‟ble Supreme court held that on the basis of several factors including
the fact that school leaving certificate and the horoscope produced by the petitioner were found

22
Jaya Mala v. Home Secy., Govt., of J&K, (1982) 2 SCC 538.
23
Gurdev Singh v. State of Punjab, (2003) 7 SCC 258.
24
Moti Lal v. State of M.P, (2004) 2 SCC 469
25
Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750
26
Jabar Singh v. Dinesh, (2010) 3 SCC 757.
27
Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223.
to be forged and fabricated and having regard to the two medical reports the courts below have
found the age of the petitioner to be above 18 years.28

Moreover it is submitted that, Section 35 of the Evidence Act for proving an entry pertaining to
the age of a student in a school admission register is to be considered for the purpose of
determining the relevance thereof. So an entry in a school register may not be a public document
and, thus, must be proved in accordance with law.29 So, the Petitioner submits that in the event it
is doubtful, the medical evidence will have to be given due weightage while determining the age
of the accused.30

(b) There Is No Fixed Criterion of Enquiry As Stated In The Juvenile Justice Act, 2000

It is most humbly submitted that a claim of juvenility may be raised at any stage even after the
final disposal of the case.31 It may be raised for the first time before the Supreme Court as well
after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground
for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed
before the trial court and can be raised for the first time before the Supreme Court though not
pressed before the trial court and in the appellate court.32

Moreover it is submitted that, it is the duty of the courts that the benefit of the provisions meant
for Juveniles are not derived by unscrupulous persons, who have been convicted and sentenced
to imprisonment for having committed heinous and serious offences, by getting themselves
declared as children or juveniles on thebasis of procured certificates.33 In Mohd. Wasim v.
State34, the ossification report was prepared in AIIMS which reduced the margin of error to six
months, which was enough to conclude that appellant was not juvenile on day of incident. So,
the counsel humbly submits that a harmonious approach should be adopted whereby the
ossification test should be made compulsory even though matriculation certificates and other
documents are available in cases where the offence committed is of so serious a nature as in the
present case.

28
Ibid.
29
Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681.
30
Om Prakash v. State of Rajasthan, (2012) 5 SCC 201.
31
Section 7A in The Juvenile Justice (Care and Protection of Children) Act, 2000
32
Abuzar Hossain v. State of W.B., (2012) 10 SCC 489.
33
Jitender Ram @ Jitu v. State of Jharkhand, (2006) 9 SCC 428.
34
Mohd Wasim and Ors. v. State of U.P., 1992 Cr.LJ 1299.
It is further submitted that, where it appears to a competent authority that person brought before
it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a
juvenile or the child, the competent authority shall make due inquiry so as to the age of that
person and for that purpose shall take such evidence as may be necessary (but not an affidavit)
and shall record a finding whether the person is a juvenile or the child or not, stating his age as
nearly as may be.35 The bare reading of this section shows that there is no specified format to be
followed under the act and hence ossification test can placed reliance upon.

Further it is submitted that the court keep in view the beneficial nature of the socially-oriented
legislation, it is an obligation of the court where such a plea is raised to examine that plea with
care36 and it cannot fold its hands and without returning a positive finding regarding that plea,
deny the benefit of the provisions to an accused. The court must hold an enquiry and return a
finding regarding the age, one way or the other."37 So here also the court does not show any
preference to the mode to be selected and hence ossification test can relied upon.

35
Section 49, Juvenile Justice (Care and Protection of Children) Act, 2000.
36
Bhola Bhagat v. State of Bihar, (1997)8 SCC 720.
37
Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133.