MULTI MOOT COMPETITION, SAVEETHA SCHOOL OF LAW

APRIL - JUNE 2023

TEAM CODE :

________________________________________________________________________________________
BEFORE THE HONOURABLE HIGH COURT OF VALLUVARNADU
CRIMINAL APPEAL NO. 118 OF 2023
CASE SEEKING UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE, 1973
________________________________________________________________________________________

IN THE MATTER BETWEEN

Mrs. PRIYA………..………..………………………………..APPELLANT

VERSUS

STATE OF VALLUVARNADU. ……………….……………….RESPONDENT

________________________________________________________________________________________

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

S.No. Title Page No.

1 Abbrevaitions 02

2 Index of authorities 03

3 Statement of jursidiction 04

4 Statement of facts 05

5 Statement of issue 07

6 Statement of arguments 08

7 Arguments advanced 09

8 Prayer 17

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 TABLE OF ABBREVIATIONS

* Important Note

¶¶ Paragraph(s)

sec. Section

& And

AIR All India Report

Anr. Another

Art Article

Hon’ble Honourable

No. Number

Ors. Others

P. Page

SC Supreme court

SCC Supreme court cases

Vol. Volume

V Versus

Sd/- Signed

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 INDEX OF AUTHORITIES

BOOKS REFERRED:

S.No PARTICULARS

Fundamental Rights and Their Enforcement,Udai Raj Rai,2011

1.

Fundamental Human Rights: The Right to Life and Personal Liberty, Kiran Deshta and
2. Sunil Deshta

STATUES REFERRED

S.No PARTICULARS

1. Indian penal code, 1860

2. The constitution of India,1950

3. The code of civil procedure of 1908

4. Indian evidence act, 1872

4
WEBSITES REFERRED

S.No PARTICULARS

1. https://timesofindia.indiatimes.com/readersblog/your-life-your-decisions/what-are-the-
rights-of-the-accused-person-in-india-37467/#

2. https://www.lawyerservices.in/MY-Shareef-And-Another-Versus-The-Honble-Judges-
Of-The-Nagpur-High-Court-1954-10-15

3. https://prsindia.org/billtrack/criminal-procedure-identification-rules-2022

4. https://indiankanoon.org/doc/70398131/

5. https://indiankanoon.org

6. https://indiankanoon.org/doc/820/

7. https://indconlawphil.wordpress.com/tag/article-203/

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CASE REFERRED

S.No PARTICULARS

1. Shabnam v. the Union of India, (2015)

2. Renuka shinde vs union of Maharashtra

3. Bachan Singh case

4. K. M. Nanavati vs. state of Maharashtra

5. Nalini Sriharan case(Rajiv Gandhi case)

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 STATEMENT OF JURISDICTION

It is humbly submitted before the Hon'ble High Court of Valluvarnadu that the Appellant has
jurisdiction under Section 374(2) of Code of Criminal Procedure, 1973. Since the sentence
pronounced in the Principal Sessions Court is subject to judicial appeal under clause 2 of section
374 in The Code Of Criminal Procedure, 1973.

Section 374 in The Code Of Criminal Procedure, 1973 reads as:

Appeals from convictions.

(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 2
has been passed against him or against any other person
convicted at the same trial], may appeal to the High Court.
(3) Save as 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 360 by any Magistrate, may appeal to the Court of Session.

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 STATEMENT OF FACTS

Aryavarta, a country with a high population density, is celebrated for its diverse array of
religions and ethnic groups. Its constitution provides assurances of justice, equality, and liberty
to all citizens, while simultaneously promoting a sense of fraternity. Rajesh and Priya, two
individuals from different castes, fell deeply in love and decided to elope and get married.
However, their families were outraged by their decision and saw it as a threat to their "honor".
After months of protests and widespread media coverage, the pressure on the police to take
action against the perpetrators of the brutal murders increased. Evidence against Priya's father
and one of her brothers was uncovered, and they were arrested for the crime they committed. The
other two brothers, however, were still at large and being hunted by the police. The prosecution
filed a petition under section 299 of the CrPC to record evidence in the absence of the
absconding accused. As the trial began, it became evident that the accused had used their
influence and power to manipulate the local authorities and cover up their crime. With the
support The government granted them remission and released them prematurely on 15th August
2022 on the eve of the 76th Independence Day. The decision was met with mixed reactions from
the public, with some questioning the government's decision to release the convicts who had
committed such a heinous crime. However, the release of the convicts sparked a debate on the
country's justice system and whether or not it was truly serving justice to the victims and their
families. An NGO filed a PIL, but the court dismissed it and gave a direction to the state
government to ensure that the life convict release committee convenes once every two months.
As Priya's father and brother were released from prison, they were greeted by a large crowd of
well-wishers and supporters who hailed them as heroes for suffering for their beliefs and
principles. The community continued to celebrate them as symbols of justice.On 1/1/2023
another tragedy struck when Priya's father, brother, sister-in-law, and 10-month-old nephew
were found dead in their room due to carbon monoxide poisoning. It was later discovered that
the gas had been released through their air conditioner, leading to their untimely deaths.Upon
arriving at the scene of the crime, the police launched an investigation and soon began to suspect
Rajesh and Priya's involvement. After gathering evidence, they were both arrested and charged
with multiple counts of murder. Their children were taken into state custody. The ensuing trial

8
received widespread media attention, with the case being dubbed the "Family Poisoning Case."
Ultimately, the Principal Sessions Court of Valluvarnadu of Aryavarta sentenced both Priya and
Rajesh to death. On 10/04/2023 Priya filed an appeal, citing her pregnancy at the time of the
crime and also a petition seeking mercy.

STATEMENT OF ISSUES

1. Whether the appeal filed by the appellant is maintainable before the honourable High
court of Valluvarnadu?

______________________________________________________________________________

2. Whether the death penalty imposed by the Court of Session violates Article 21 of the
constitution of Aryavarta?

______________________________________________________________________________

3. Whether the clemency of the death sentence can be considered owing to the appellant’s
pregnancy?

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 STATEMENT OF ARGUMENTS

1. Whether the appeal filed by the appellant is maintainable before the honourable High
court of Valluvarnadu?
Yes, It is humbly submitted before the hon’ble High Court of Valluvarnadu that the appeal filed
by the appellant is maintainable.

2. Whether the death penalty imposed by the Court of Session violates Article 21 of the
constitution of Aryavarta?

Yes, it is humbly submitted before the honourble high court of Valluvarnadu that the death
imposed on the plaintiff is violative of Article 21 of the constituition of Aryavarta.

3. Whether the clemency of the death sentence can be considered owing to the appellant’s
pregnancy?

Yes, It is most humbly submitted before the hon’ble High Court that death sentence can be
commuted,.

ARGUMENTS ADVANCED

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 1. Whether the appeal filed by the appellant is maintainable before the honourable High
court of Valluvarnadu?

It is humbly submitted before the Hon'ble Court that the petition is maintainable. As per section
374 of Code Of Criminal Procedure, 1973 it stated that

Section 374 of Code of Criminal Procedure 1973 reads as,

(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 as 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 360 by any Magistrate, may appeal to the Court of Session.

Dilip S. Dahanukar v. Kotak Mahindra Company Limited (2007)1 An offender who has been
convicted has the unalienable right to exercise his or her appeal under the provisions of Section
374 of the Code. In light of Article 21‘s broad definition, the ability to appeal a conviction that
has an impact on one’s freedom is likewise a basic right. Therefore, the right of appeal cannot be
limited in any way or subjected to any conditions. The right to appeal is guaranteed under Article
21 of the Indian Constitution and Section 374 of the Criminal Procedure Code.

1
2009 ALL MR (Cri) 3143 (SC

11
The above case law clearly stated that Every person should have the right to appeal. It is also
enshrined under Article 21 of the constitution. Moreover the appeal filed by Priya is
maintainable before the Hon'ble Court of Aryavarta.

Section 382 of Code of Criminal Procedure 1973 reads as,

If a woman, sentenced to death, is found to be pregnant, the High Court shall order the execution
of the sentence to be postponed, and may, if it thinks fit, commute the sentence to imprisonment
for life.". (ii) commute it to the lesser one.

This section stated that the High court shall have the discretionary power to postpone the
execution of such sentence as well as they have also the discretionary power to commute the
sentence to imprisonment for life or imprisonment for a lesser term.

Section 416 of Code Of Criminal Procedure, 1973 reads as:

Postponement of capital sentence pregnant woman. If a woman sentenced to death is found to be

pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it
thinks fit, commute the sentence to imprisonment for life.

The appeal filed by Priya is maintainable because as per section 416 of Crpc if death penalty was
given to a woman found to be pregnant, then the court has the discretionary power to postpone
the death sentence and if they think they can commute the sentence to life imprisonment.

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 2. Whether the death penalty imposed by the Court of Session violates Article 21 of the
constituition of Aryavarta?

It is humbly submitted before the honorable Court that imposing death to pregnant women is
violative to Article 21 of the Aryavarta Constitution. Article 21 of the Aryavarta Constitution -
Protection of Life and Personal Liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law. This fundamental right is available to
every person, citizens and foreigners alike. Here the Court of Session had imposed the death
penalty to pregnant women priya. This is violative of article 21 because the child's life will be
deprived if the death penalty is executed by the High Court.

Section 416 of Criminal Procedure Code reads as;

Postponement of capital sentence pregnant woman. If a woman sentenced to death is found to be
pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it
thinks fit, commute the sentence to imprisonment for life. Pregnant women were added to the list
of criminals who are excluded from the death penalty.

According to Section 416 of the CrPC, if the high court finds that a woman who has been
awarded the death sentence is pregnant then such sentence can be postponed or commuted to life
imprisonment. The reasoning behind this is that hanging a pregnant woman kills both the
pregnant woman and the child in her womb. The unborn child in the woman’s womb has not
committed any wrongdoing and does not deserve to die for what the woman did. So Pregnant
women may thus fall under the category of criminals who are excluded from the death penalty.
Even if the child is born, the death penalty should not be executed. It should be postponed
because basic necessities of the child should be fulfilled by the child's mother i.e breastfeeding.
Until that child cannot be separated from the mother. In the case of Mithu v. State of Punjab2
The Supreme Court declared mandatory death penalty provisions in the Indian Penal Code (IPC)
unconstitutional. It held that the imposition of the death penalty must be based on an
individualized consideration of the circumstances and characteristics of the offender and the
crime committed. Considering that the crime committed by the appellant as only an outburst of

2
AIR 1983 SC 473 : 1983 Cri LJ 811

13
the unjust happened against her love marriage, it can be drawn that the appellant is not a person
with criminal background.
Also in the case of Rajendra Prasad v. State of Uttar Pradesh (1979)3, The Court, in this case,
held that the death penalty should not be imposed for murder if there are extenuating
circumstances or if there is a possibility of reformation and rehabilitation of the convict. Here the
appellant has a remedial solution of getting imposed with life imprisonment rather than capital
punishment.

3
1979 AIR 916

14
 3. Whether the clemency of the death sentence can be considered owing to the appellant’s
pregnancy?

It is humbly submitted before the honorable court that the petition seeking clemency should be
granted to the appellant. Article 21 of the constitution of Aryavarta guarantees that every person
is entitled to “right to life” which with no barrier shall extend to the appellant as well. Although
the appellant may be convicted for murder, it is to be noted that the murders committed were
only the reflection of the unjust act done by the appellant’s father and brother to the appellants'
love life.

Article 21 of the constitution of Aryavarta reads as:

“Protection of life and personal liberty: No person shall be deprived of his life or personal
liberty except according to procedure established by law”

Also, it is to be noted that the appellant is a mother whose children do not have any other blood
relations undeceased to take care of. The appellant is the last and only bond that the appellant’s
children have and hence the children of the convict are in desperate need of their mother to have
a healthy and dignified livelihood.

Section 416 in The Code Of Criminal Procedure, 1973 reads as:

Postponement of capital sentence pregnant woman. If a woman sentenced to death is found to be
pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it
thinks fit, commute the sentence to imprisonment for life.

According to Section 416 of the CrPC, if the high court finds that a woman who has been
awarded the death sentence is pregnant then such sentence can be postponed or commuted to life
imprisonment. The reasoning behind this is that hanging a pregnant woman kills both the
pregnant woman and the child in her womb.

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According to section 433 of code of criminal procedure, 1973 reads as
it is stated that The appropriate Government may, without the consent of the person sentenced,
commute-
(a) a sentence of death, for any other punishment provided by the Indian Penal Code;
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years
or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that
person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.

In the case, Shida Gauda Ningappa Ghandakar v. the State of Karnataka, (1981)4The Supreme
Court while upholding the validity of Section 433 of the Cr.P.C held that the Government cannot
reduce or commute the sentence to less than 14 years for a crime of serious nature. Also in the
case of Ram Shankar v. State of Madhya Pradesh, (1981)5The Supreme Court held that the
government may remit or reduce sentences while exercising the power of clemency after
considering the facts and circumstances of the case. Hence, under section 433(1) of Crpc under
the state shall have the power to commute the death penalty imposed on the appellant,
considering the appellant’s childrens societal stands and the consequence of letting the
appellant’s child growing in a parent-less manner shall also be considered.

Also, Aryavarta being a member and ratified a party to the International Convention on Civil and
Political Rights (ICCPR), it is bound to uphold the provisions as mentioned under its policy.
ICCPR under Article 6(4) explicitely states that Anyone sentenced to death shall have the right
to seek pardon or clemency of the sentence. Amnesty, pardon or clemency of the sentence of
death may be granted in all cases. Referimg to this Article the Appellant seeks to either pardon
her or at least grant her comutation. Also, Article 6(5) states that the death penalty shall not be
imposed on pregnant women. Here it is brought in notice that the appellant was pregnant at the
time of commission of the punishable offence. Also, in the case of Swamy Shradhananda, the

4
1981 SCC (1) 164
5
AIR 1981 SC 644

16
Supreme Court commuted the death sentence of Swamy Shradhananda case6, a convict in a
murder case. The court took into consideration the provisions of international human rights
instruments, including the ICCPR, and emphasized the need to balance punishment with the
principles of human dignity and proportionality.

Article 6 of International Convention on Civil and Political Rights reads as:

1. Every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at the time
of the commission of the crime and not contrary to the provisions of the present Covenant
and to the Convention on the Prevention and Punishment of the Crime of Genocide. This
penalty can only be carried out pursuant to a final judgement rendered by a competent
court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in
this article shall authorize any State Party to the present Covenant to derogate in any
way from any obligation assumed under the provisions of the Convention on the
Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or clemency of the
sentence. Amnesty, pardon or clemency of the sentence of death may be granted in all
cases.
5. Sentences of death shall not be imposed for crimes committed by persons below eighteen
years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.

Hence, in able said the appellant is well within the ambit of seeking clemency against her death
penalty.

6
Appeal (crl.) 454 of 2006

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 PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, it is humbly
submitted that this Hon’ble Southern District Court is pleased to declare the following:

1. The appeal filed by the appellant is maintainable before the honourable High court of
Valluvarnadu.
2. The death penalty imposed by the Court of Session is violative of Article 21 of the
constitution of Aryavarta.
3. The clemency of the death sentence can be considered owing to the appellant’s
pregnancy.

AND/OR

Pass any other order as the Hon’ble Court deems fit in the interest of equity, justice, fair play and
good conscience.

All of which is humbly prayed.

(Counsel on behalf of Appellant)

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