6 TH Justa Causa National Moot Court Com PDF

16TH JUSTA CAUSA NATIONAL MOOT COURT COMPETITION 2018
BEFORE THE HONOURABLE SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION (CRIMINAL) NO. /2018
IN THE MATTER OF –
KAMLES MODI- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - APPELLANT
V.
STATE OF MAHANANDA- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESPONDENT
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
SUBMISSION BEFORE
THE HONOURABLE JUSTICES
OF
THE HONOURABLE SUPREME COURT OF INDIA
MEMORIAL ON BEHALF OF THE APPELLANT

Table of Contents I
TABLE OF CONTENTS
TABLE OF ABBREVIATION ...................................................................................................... III
INDEX OF AUTHORITIES ......................................................................................................... IV
STATEMENT OF JURISDICTION ............................................................................................... IX
STATEMENT OF FACT ............................................................................................................... X
ISSUES RAISED ........................................................................................................................ XI
SUMMARY OF ARGUMENTS ................................................................................................... XII
ARGUMENTS ADVANCED ........................................................................................................... 1
[1]. THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ART. 136 OF THE
CONSTITUTION OF INDIA. ...................................................................................................... 1
[1.1]. GRAVE INJUSTICE HAS BEEN DONE TO THE APPELLANT. ....................................... 1
A. FOUNDATIONAL FACT UNDER PRESUMPTION PROVIDED BY PROTECTION OF
CHILDREN FORM SEXUAL OFFENCES (POCSO) IS NOT PROVED BEYOND REASONABLE
DOUBT............................................................................................................................. 2
B. FINDINGS OF THE HIGH COURT AND SESSIONS COURT ARE PERVERSE IN NATURE ..... 3
C. CONCURRENT FINDINGS OF THE COURTS CAN BE INTERFERED WITH. ......................... 4
[2]. THE ORDER AND JUDGMENT OF THE HIGH COURT AND SESSIONS COURT ARE LIABLE
TO BE SET ASIDE. .................................................................................................................... 5
[2.1]THE SCHOOL LEAVING CERTIFICATE IS NOT A RELIABLE EVIDENCE TO
DETERMINE THE AGE OF THE VICTIM ............................................................................. 5
A. THE SESSIONS COURT AND HIGH COURT WERE UNJUSTIFIED IN RELYING UPON THE
SCHOOL LEAVING CERTIFICATE FOR DETERMINING THE AGE OF THE VICTIM. ............... 5
B. SCHOOL LEAVING CERTIFICATE IS NOT IN ACCORDANCE WITH THE JUVENILE JUSTICE

RULES,2007 .................................................................................................................... 7
[2.2] THE MEDICAL EVIDENCE ARE NOT RELIABLE IN THE PRESENT MATTER ................. 7
A. NON-EXAMINATION OF RADIOLOGIST IS FATAL TO PROSECUTION CASE.................... 8
A.1. Little reliance has to be placed on age estimated from singular factor. ............ 8
A.2. Status of ossification of bones is not known. ...................................................... 8
MEMORANDUM ON BEHALF OF THE APPELLANT

Table of Contents II
A.3. Ossification test gives range of age instead of exact age. .................................. 9
B. NON-EXAMINATION OF DOCTOR WHO CONDUCTED POST MORTEM RENDERS THE
RESPONDENT’S CASE IMPROBABLE. ................................................................................ 9
B.1 Eruption of Third Molar Tooth............................................................................ 9
B.2 Secondary Sexual Characters are well developed. ........................................... 10
C. ORAL EVIDENCE OF MOTHER WILL PREVAIL OVER MEDICAL EVIDENCE. ................ 10
D. DNA IS NOT CONCLUSIVE TO PROVE GUILT OF THE ACCUSED. ................................ 11
[2.3] INVESTIGATION IS FAULTY IN THE PRESENT MATTER ........................................... 12
[3]. OFFENCE CANNOT BE ESTABLISHED IN THE PRESENT CASE ........................................ 13
[3.1] THE ACT WAS NOT IN THE NATURE OF ASSAULT .................................................. 13
[3.2]THE VICTIM WAS IN A CONSENSUAL RELATIONSHIP WITH APPELLANT ................ 14
PRAYER ................................................................................................................................ XIII

Table of Abbreviation III
TABLE OF ABBREVIATION
¶ Paragraph
§ Section
& And
AIR All India Reporter
Anr. Another
Art. Article
CA Criminal Appeal
Cr.LJ Criminal Law Journal
Cr. PC Code of Criminal Procedure
DW Defence Witness
FIR First Information Report
HC High Court
IPC Indian Penal Code
IEA Indian Evidence Act
NCT National Capital Territory
Ori. Orissa
Ors Others
Pat Patna
PW Prosecution Witness
PMR Post Mortem Report
POCSO Protection Of Children from Sexual
Offences
SA South Africa
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Record
SCR Supreme Court Record
UOI Union of India
v. Versus

Index of Authorities IV
INDEX OF AUTHORITIES
S.N. AUTHORITIES CITED REFERRED AT
1. Achyut Adhicary v. West Bengal A.I.R.1963 S.C.1039. 4
2. Ashwani Kumar Saxena v. State of M.P., (2012) 9 7

S.C.C.750.
3. Arunanchalam v. P.S.R. Sadhanatham, (1979) 2 S.C.C.297. 1
4. Alamelu and Another v. State, (2011) 2 S.C.C.385. 4
5. Bindu Mahto v. State of Bihar, 1989 Cri LJ NOC 107 10

(Pat.)
6. Birad Mal Singhvi v. Anand Prohit, A.I.R. 1988 S.C.1786 4
7. Bhola Singh v. State of Punjab, (2011) 11 S.C.C. 653. 2
8. Champaben v. State of Gujarat, 2014 GLH (2) 76. 11
9. Chathu v. Govindan Kutty, AIR 1958 Ker 121. 9
10. Dharamveer v.State of U.P., (2010) 4 S.C.C.469. 4
11. Dhobeidhar Naik v. State, 2001 I OLR 122. 8
12. Dhobi Yadav v. State of Bihar, 1989 PL JR 867. 10
13. Dhanwantrai Balwantrai Desai v. State of Maharashtra, 2

1963 Supl. (1) S.C.R. 485.
14. Dilbahar v. GNCT of Delhi, 185 (2011) DLT 598. 9
15. Ganga kumar Srivastav v. State of Bihar, A.I.R. 2005 1

S.C.3123.
16. Hem Raj v. State of Ajmer, A.I.R. 1954 S.C. 462. 1
17. Indira Kaur v. Sheolal Kapoor, A.I.R. 1988 S.C. 1074. 3
18. Jagtar Singh v. State of Punjab, A.I.R. 1993 S.C. 2448 7
19. Javed Masood v.State of Rajasthan, (2010) 3 S.C.C. 538. 5
20. Jodhbir Singh v. State of Punjab (2012) 13 S.C.C. 591. 7

Index of Authorities V
21. Joginder Yadav v. State of Bihar, (2015) 9 S.C.C.244. 13
22. Kailash Gour v. State of Assam, (2012) 2 S.C.C.34. 12
23. Kamti Devi v. Poshi Ram, (2001) 5 S.C.C.311. 11
24. Kartarey v. State, A.I.R. 1976 S.C.76.( ¶14) 4
25. KathiRaning Rawat v. The State of Saurashtra, A.I.R. 1952 4

S.C. 991.
26. Kishoilal v. State, A.I.R.1957 Punj.78. 11
27. Mahadeo S/o Kerba Maske v. State of Maharashtra and 7

Anr, (2013) 14 S.C.C. 637.
28. Mahesh Chnader v. Delhi Admn., A.I.R. 1991 S.C. 1108. 3
29. Mathai v. Geroge, (2016) 7 S.C.C.700. 1
30. Mathura Yadav v. State of Bihar, 2002 (6) S.C.C.451. 1
31. Mor Pal v. State, 198 (2013) DLT 487. 6
32. Michael L v. Jonson Pumps Ltd., A.I.R. 1975 S.C. 661 . 1
33. Naresh Kumar v. State of HP, 2017 (8) SCALE 324. 3
34. Nayudu Srihari v. State of Andhra Pradesh (1996) 10 1

S.C.C. 393.
35. New India Assurance Co. Ltd. v. Nusli Neville Wadia & 14
Anr., (2008) 3 S.C.C. 279.
36. Netram Baghel v. State of U.P. 2017 (1) ALJ 634. 8
37. Nilamber Goudo v. State ,1982 Cri LJ (NOC) 172 (Ori). 15
38. Noor Aga v. State of Punjab, (2008) 16 S.C.C.417. 2
39. Padam Singh v. State of U.P., (1999) Supp.5 S.C.R. 59. 3
40. Parhlad v.State of Haryana, (2015) 8 S.C.C.688. 8
41. Premjinhai Bachubhai Khasiya v. State of Gujarat & Anr. 11

2009 CRL.L.J. 2888.
42. Pritam Singh v The State, A.I.R 1950 S.C.169. 1, 4
43. R v. Watters, (2000) All E.R.1469. 11

Index of Authorities VI
44. Ramlal v. Phagua, (2006) 1 S.C.C.168. 3
45. Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, 11

(2005) 5 S.C.C. 294.
46. Ram Deo Chauhan v. State of Assam (2001) 5 S.C.C. 714. 6
47. Ram Pratap & anr. v.State of Rajasthan, (2007) 2 Crimes 8

525 (Raj).
48. Ramakant Rai v. MadanRai, (2003) 12 S.C.C. 395. 5
49. Ramanand Yadav v. Prabhu Nath Jha (2003) 12 S.C.C. 10

606.
50. Ramdayal v. State of M.P., (2008) 63 AIC 445 (M.P.). 12
51. Ravinder Singh Gorkhi v. State of U.P., (2006) 5 6

S.C.C.584.
52. S.R.Tewari v. Union of India, (2013) 6 S.C.C. 602. 3
53. Sahid Hosain Biswas v. State of West Bengal, (2017) 3 2

CALLT 243 (HC).
54. Sandeep Janaji Konde v. The State of Maharashtra, (2016) 6

ALL MR (Cri.) 1433.
55. Shahaj Ram v. State of U.P., (1973) 1 S.C.C.490. 12
56. Shamsher Singh v. State of Haryana, (2002) 7 S.C.C. 536. 4
57. Shivanaryana Laxminarayna Joshi v. State of Maharashtra, 4

A.I.R. 1980 S.C.439.
58. Shyam v. State of Maharashtra, A.I.R. 1995 S.C.2169. 14
59. Somgir alias Mangal Puri v. State, 1966 Cluj I.R 378. 10
60. State of M.P. v. Azad Bharat Finance Co. & Anr., 1966 14
Supp S.C.R. 473
61. State of M.P. v. Munna@Shambhoo, (2016) 1 S.C.C. 696. 6,9
62. State of M.P. v. Niraj, MCRC No. 4022 of 2007. 10

(M.P.HC).
63. State of Madhya Pradesh v. Bachude, 1984 Cr LR (MP) 10

328.

Index of Authorities VII
64. State of Maharashtra v. Dnyaneshwar LaxmanRao 2

Wankhede, (2009) 15 S.C.C.200.
65. State Of Punjab v.Jagir Singh, (1974) 1 S.C.R. 328. 12
66. State of Punjab, (2002) 3 S.C.C.234. 1
67. State of Rajasthan v. Kishanlal, A.I.R. 2002 S.C.2250. 15
68. State of Uttarakhand v. Jairnail Singh, 2017 (13) SCALE 12

410.
69. State of M.P. vs. Anoop Singh, (2015) 7 S.C.C.773. 7
70. Sudhangshu Pramanick v. State of West Bengal, (2005) 3 8

CALLT 527 (HC).
71. Sudama Pandey v. State of Bihar, A.I.R. 2002 S.C. 293. 4
72. Syed Akbar v. State of Karnataka, (1980) 1 S.C.R.25. 2
73. Tata Iron Steel Co v. Abdul Wahab, A.I.R. 1966 Pat.458. 6
74. Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) 5

v. S.C.Sekar, (2009) 2 S.C.C.784.
75. Teddy Bear Clinic for Abused Children v. Minister of 15

Justice and Constitutional Development ZACC 35. (South
Africa). (2013) ZACC 35.
76. Toransingh v. State of M.P. (2002) 6 S.C.C. 494. 4
77. Umesh Chand v. State of Rajasthan, A.I.R.1982 S.C.1057. 6
78. Vishnu v. State of Maharashtra, A.I.R. 2006 S.C.508. 11

Index of Authorities VIII
BOOKS/ STATUTE REFERRED
BOOKS -
 D. S. CHOPRA, INTERPRETATION OF STATUTES (Thomson Reuters, 1st ed., 2014).

 DR. CK PARIKH, TEXTBOOK OF MEDICAL JURISPRUDENCE, FORENSIC MEDICINE &
TOXICOLOGY, (CBS Publisher’s, 6th ed., 2014).
 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,( Lexis Nexis, 9th ed.
2014).
 DURGA DAS BASU, CRIMINAL PROCEDURE CODE, 1973, (Lexis Nexis Butterworths
Wadhwa, Vol.-2, 5th ed., 2014).
 GANGULY’S, CRIMINAL COURT PRACTICE & PROCEDURE (Eastern Law House, 10th ed.,
2008).
 J.P.MODI’S MEDICAL JURISPRUDENCE AND TOXICOLOGY (Lexis Nexis Butterworths
th
Wadhwa, 24 ed., 2011).
 KD GAUR, THE INDIAN PENAL CODE (Law Publishers India Pvt. Ltd. 15th ed., 2016).
 LYON’S MEDICAL JURISPRUDENCE AND TOXICOLOGY (Delhi Law House, 11th ed. 2008),
 R.P.KATARIA, COMMENTARY ON PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,
2012, (Orient Publishing Company 1st ed. 2014).
 SURENDRA MALIK AND SUDEEP MALIK, SUPREME COURT ON CRIMINAL PROCEDURE CODE
& TRIAL (Eastern Book Company Vol-1,1st ed. 2011).
STATUTE -
 CRIMINAL PROCEDURE CODE, 1973.

 INDIAN EVIDENCE ACT, 1872.
 INDIAN PENAL CODE, 1860.
 JUVENILE JUSTICE ACT, 2000.
 PROTECTION OF CHILDREN FORM SEXUAL OFFENCES ACT, 2012.
CONSTITUTION -
 CONSTITUTION OF INDIA, 1950.
RULES-
 JUVENILE JUSTICE RULES, 2007.

Statement of Jurisdiction IX
STATEMENT OF JURISDICTION
THE APPELLANT IN THE MATTER OF KAMLES MODI V. STATE OF MAHANANDA HAS THE
HONOUR TO SUBMIT BEFORE THE HON’BLE SUPREME COURT, THE MEMORANDUM ON BEHALF
1
OF THE APPELLANT UNDER ARTICLE 136 (SPECIAL LEAVE PETITION) OF THE CONSTITUTION OF
INDIA,1950.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS
IN THE PRESENT CASE
1
Special leave to appeal by the Supreme Court:
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.

Statement of Fact X
STATEMENT OF FACT
1. One Alia Kumar (deceased) allegedly aged 15 years jumped into a well situated at Peru
on 23rd January 2013. Based on the same incident an accidental death report was
registered at Baghdadi police station.
2. During the course of the investigation, the mother of the deceased lodged a complaint at
Baghdadi police station inter alia alleging that her daughter had been having an affair
with Kamles Modi (Accused) owing to which she committed suicide. First Information
Report (FIR) was registered under section 306 of IPC. Thereafter, the accused was
arrested by the police.
3. During the investigation of the above complaint, it transpired that Alia was pregnant at
the time of committing suicide. DNA was taken and test result shows that the deceased
and the accused were biological parents of the foetus. As per the radiological ossification
test, the age of the deceased was found to be 15 years.
4. Offences such as that stipulated under section 376 of Indian Penal Code (IPC) R/w
Section 5&6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO)
were also registered. The matter was committed before the learned Add. Sessions Judge
for trial. Prosecution in all examined 7 witnesses.
5. After the conclusion of trial, Sessions Court of Erode concluded that prosecution failed to
prove that accused had abetted Alia to commit suicide. The Sessions Court held that
prosecution has proved that the accused committed the aggravated sexual assault upon
Alia, who was aged 15 years at relevant time; as a result of which she became pregnant.
With the above findings, the Sessions Court convicted the appellant.
6. Thus, the court held the appellant guilty under section 376 of IPC and Section 6 of the
POCSO Act, 2012 and sentenced him for 10 years of rigorous imprisonment and fine of
INR 2000/- and in default to undergo simple imprisonment for a term of 3 months.
7. An Appeal was made before the Hon’ble High Court of Mahananda against the order and
judgement passed by the Additional Sessions Judge from Sessions trial No. 111 of 2013
on 29th November 2014.
8. The Hon’ble High Court of Mahananda has upheld the order and judgment of the
Sessions Court of Erode and now the matter is before the Hon’ble Supreme Court of
India.

Issues Raised XI
ISSUES RAISED
1.
WHETHER THE SPECIAL LEAVE PETITION FILED UNDER ART. 136 OF THE CONSTITUTION OF
INDIA IS MAINTAINABLE.
2.
WHETHER THE ORDER AND JUDGMENT PASSED BY HON’BLE HIGH COURT OF MAHANANDA
AND SESSIONS COURT OF ERODE IS LIABLE TO BE QUASHED.
3.
WHETHER ANY OFFENCE IS COMMITTED BY THE APPELLANT UNDER SECTION 5 OF POCSO AND
SEC 376 OF IPC.

Summary of Arguments XII
SUMMARY OF ARGUMENTS
1. THE SPECIAL LEAVE PETITION FILED UNDER ART. 136 OF THE CONSTITUTION OF INDIA
IS MAINTAINABLE.
It is most humbly submitted that under Article 136, Hon’ble Supreme Court can entertain any
cause or any matter giving it the widest jurisdiction. It can interfere with the concurrent
findings of the lower court if the findings are perverse in nature and has caused grave
injustice to the party. In the present matter, foundational fact under POCSO is not proved
beyond reasonable doubt and the accused was convicted because the lower Courts placed
reliance on unreliable evidences. Therefore, the petition is to seek relief for the grave
injustice caused to appellant.
2. THE ORDER AND JUDGEMENT PASSED BY HON’BLE HIGH COURT AND SESSIONS COURT
IS LIABLE TO BE QUASHED.
It is most humbly submitted before this Hon’ble Court that the Order and Judgement passed
by the Hon’ble High Court and Sessions Court is liable to be quashed. Firstly, the school
leaving which was relied upon was unreliable evidence, as there was no proof to prove the
date of birth of the victim at the time of her admission. Secondly, medical evidences, which
are radiological ossification test report, post-mortem report and DNA report, are not reliable
as the doctor who conducted these tests was not examined in the court. Therefore, it creates
serious doubt over the age of the deceased. Thirdly, investigation infirmities render the
prosecution case very doubtful. Moreover, all the facts and circumstances suggest that the
deceased was above the age of the 18 at the relevant time. Therefore, the order and judgment
is liable to be quashed.
3. NO OFFENCE CAN BE ESTABLISHED UNDER SECTION 5 THE POCSO ACT AND SEC 376 OF
IPC.
It is most humbly submitted before this Hon’ble Court that no offence can be established
under section 5 of the POCSO Act and section 376 of IPC. Firstly, the act complained of in
the present case is not in the nature of assault by taking aid from purposive interpretation of
statute. Secondly, the appellant and the victim were in consensual relationship with each
other. Since the basic requirements of section 375 and POCSO cannot be established in the
instant case therefore the acquittal of appellant is warranted.

Arguments Advanced 1
ARGUMENTS ADVANCED
[1]. THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER ART. 136 OF THE
CONSTITUTION OF INDIA.
1. It is humbly submitted that the Special Leave Petition filed under Article 136 of the
Constitution instituted by the Appellant against the order and judgment of the Hon’ble High
Court is maintainable. It is humbly put forth that the jurisdiction of the Supreme Court under
Article 136 in criminal matters can be invoked on premise of grave injustice caused to the
parties. Moreover, the concurrent finding of the High court and Sessions court are perverse in
nature. [1.1].
[1.1]. GRAVE INJUSTICE HAS BEEN DONE TO THE APPELLANT.
2. It is most respectfully submitted before the Hon’ble Supreme Court that the Special Leave
Petition filed under art. 136 of the Constitution is maintainable. The Appellant has suffered
grave injustice from the order and judgement of conviction passed by the Hon’ble Sessions
Court and upheld by the Hon’ble High Court by placing undue reliance on unreliable
evidences.
3. It has been ruled in a catena of cases that the Supreme Court under Article 136 of the
Constitution can interfere into ‘any cause or matter’2 hence giving it a wider jurisdiction.3
4. It is submitted that in criminal appeal, the Supreme Court can grant special leave to appeal
to case where grave injustice is done to the Appellant.4 In the case of Ganga Kumar Srivastav
v. State of Bihar5, it was held that the jurisdiction under art. 136 can also be invoked when the
evidence adduced by the prosecution falls short on reliability and acceptability and as such it
is highly unsafe to act upon it.6
5. The Hon’ble Supreme Court can certainly interfere when it is of the opinion that the
findings of fact by the Lower Courts have resulted into grave miscarriage of justice.7 Grave
injustice has been done to the appellant as the foundational facts was not proven beyond
2
Pritam Singh v. The State, A.I.R.1950 S.C.169.
3
Mathai v. Geroge, (2016) 7 S.C.C.700.
4
Pritam Singh v.The State, A.I.R.1950 S.C.169.; see also Hem Raj v. State of Ajmer, A.I.R. 1954 S.C.; see also
DURGA DAS BASU, CRIMINAL PROCEDURE CODE, 1973, (Lexis Nexis Butterworths Wadhwa, Vol.-2, 5th ed.,
2014), Pg.
5
A.I.R.2005 S.C.3123.
6
Ganga kumar Srivastav v. State of Bihar, A.I.R. 2005 S.C.3123.; see also Mathura Prasad v. State of M.P.,
A.I.R.1992 S.C.49. see also Arunanchalam v. P.S.R. Sadhanatham, (1979) 2 S.C.C.297.
7
Nayudu Srihari v. State of Andhra Pradesh (1996) 10 S.C.C. 393.; see also Michael L v. Jonson Pumps Ltd.,
A.I.R. 1975 S.C. 661. ; see also State of Punjab v. Jugraj Singh, (2002) 3 S.C.C.234.

reasonable doubt [A] and findings of the Hon’ble Sessions Court and High Court and are
perverse in nature [B].
A. FOUNDATIONAL FACT UNDER PRESUMPTION PROVIDED BY PROTECTION OF CHILDREN FORM

SEXUAL OFFENCES (POCSO) IS NOT PROVED BEYOND REASONABLE DOUBT.
6. It is humbly submitted that the foundational fact under presumption provided u/s 29 of the
POCSO are not proved beyond reasonable doubt. To prove the contention, the appellant puts
forth a two-fold argument; firstly, minority is a foundational fact under POCSO and secondly
every foundational fact needs to be proved beyond a reasonable doubt.
7. It is submitted before the Hon’ble Court that the conjoint reading of the Objective of the
POCSO Act, 2012 and section 2(d)8 of the Act clearly establishes that Minority of a person is
the foundational fact of this legislation therefore it needs to be proved beyond reasonable
doubts.9
8. Generally, in a criminal trial, it is the duty of the prosecution to prove the necessary facts
to establish the charge, as every man is presumed innocent until the contrary is proven,10
however, the same is not available to the accused due to the presumption provided by law.11
In the instant case, there exists presumption of law against the accused, but it does not lessen
the duty of the prosecution to prove the charges beyond reasonable doubt.12
9. In case of Noor Aga v. State of Punjab13 the Supreme Court opined that “with regard to
the standard of proof required in cases of presumption, the Court held that the burden on the
prosecution to prove foundational facts would be ‘beyond reasonable doubt’, whereas the
defendant would only have to rebut the presumption on a preponderance of probabilities14”.
Furthermore, foundation fact must be proved first, and only then defence can rebut the
presumption under section 29 of POCSO.15
10. It is further submitted that a conjoint reading of section 316 and section 417 of the IEA,
1872 implies that under section 2918 of the POCSO, accused has to prove the contrary in
8
§ 2(d) of POCSO Act. 2012. “Child” means any person below the age of eighteen years.
9
Lingappa v. State of Karnataka, Cri Petition No.200659/ 2014. (Kar. HC) see also Dhanwantrai Balwantrai
Desai v. State of Maharashtra, 1963 Suppl. (1) S.C.R. 485.
10
Syed Akbar v. State of Karnataka, (1980) 1 S.C.R.25.
11
Sahid Hosain Biswas v. State of West Bengal, (2017) 3 CALLT 243 (HC).
12
State of Maharashtra v. Dnyaneshwar LaxmanRao Wankhede (2009) 15 S.C.C.200.
13
Noor Aga v. State of Punjab,(2008) 16 S.C.C.417.: see also Jayendra Vishnu Thakur v. State of Maharashtra
and Anr.,(2009) 7 S.C.C.107.
14
Noor Aga v. State of Punjab, (2008) 16 S.C.C.417. see also Bhola Singh v. State of Punjab, (2011) 11 S.C.C.
653.
15
Sahid Hosain Biswas v. State of West Bengal, (2017) 3 CALLT 243 (HC).
16
§ 3 of Indian Evidence Act, 1872. Definition of proved fact and disproved fact.

order to prove his innocence, but the fact that needs to be disproved, must be proved first.
Therefore, the foundational fact needs to be proved without leaving an iota of doubt19 in order
to trigger the presumption.
11. In our case, the respondent had not proved the minority of the deceased beyond
reasonable doubt as the school-leaving certificate, the radiological ossification and the
testimonies relied upon generates uncertainty over the determined age of victim.
12. Therefore, it is humbly put forth that the foundational fact of minority was not proved
beyond all reasonable doubt but the appellant was convicted under POCSO, which is causing
grave injustice to the appellant.
B. FINDINGS OF THE HIGH COURT AND SESSIONS COURT ARE PERVERSE IN NATURE
13. It is submitted before the Hon’ble Court that SLP against conviction is maintainable and
interference is called for, if the High Court is found to be acted perversely in arriving at the
findings.20 In the present matter both Hon’ble Sessions Court and High Court have based
their finding on unreliable pieces of evidence to convict the appellant therefore the findings
are perverse.
14. Furthermore, High Court has failed to address the infirmities suffered by the appellant.21
It is settled principle that the findings of fact recorded by the court can be held perverse when
they ignore relevant material or rely upon inadmissible materials.22 The Courts in the present
matter has relied upon unreliable school leaving certificate and inconclusive ossification to
determine the age of the deceased.
15. In the case of State of U.P. v. Babul Nath23, it was held that this court will look into the
matter if the appreciation of evidence and findings therein are vitiated by any error of law of
procedure and misreading of the evidence24, or where the conclusions of the court are
perverse and unsupported from the evidence on record.25
17
§ 4 of IEA, 1872. Shall Presume - Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.
18
§ 29 of the POCSO Act, 2012.
19
Naresh Kumar v. State of HP, 2017 (8) SCALE 324.
20
Mahesh Chnader v. Delhi Admn., A.I.R.1991 S.C. 1108.
21
Padam Singh v. State of U.P., (1999) Supp.5 S.C.R. 59.
22
S.R.Tewari v. Union of India, (2013) 6 S.C.C. 602.
23
(1994) 6 S.C.C.29.
24
Indira Kaur v. Sheolal Kapoor, A.I.R. 1988 S.C. 1074.;see also Ramlal v. Phagua, (2006) 1 S.C.C.168.
25
Id.

16. It is submitted that the Supreme Court is not prohibited from going into the question of
fact under the facet of art. 136, if it considers it necessary to do so26. Article 136 of the
Constitution clearly states that the court can interfere into ‘any cause or matter’; it gives the
widest possible power to court to look into any matter27.
17. Thus, in the present matter, the Hon’ble High court and Sessions Court have relied upon
inadmissible documents to arrive at findings, which caused injustice to the appellant.
Therefore, the interference is warranted in the present matter.
C. CONCURRENT FINDINGS OF THE COURTS CAN BE INTERFERED WITH.
18. It is submitted that in case of Alamelu v. State, the Supreme Court has reiterated that the
concurrent findings can be set aside if the Courts while recording the conviction ignored the
inherent improbabilities in evidence and arrived at manifestly perverse conclusion.28 It has
been ruled that if both Sessions Court and High Court have departed from the basic rule of
prudence while appreciating evidence, then interference and acquittal by Supreme Court is
justified.29
19. The concurrent findings can be altered when there has been violation of some very
fundamental rules of procedure in trial.30 Where the findings are against the weight of the
evidence or vitiated by the error of law, interference is called for.31 Interference is also called
for when an error leads to serious miscarriage of justice.32 In the case at hand, the doctors
who conducted post mortem, radiological ossification and DNA were not deposed before the
court still the medical evidences were heavily relied upon to convict the appellant.
20. Further, it is submitted that interference is warranted when the findings are arrived at by
the courts without giving proper consideration of relevant material33. In the present matter,
faulty investigation and consent of the deceased to sexual intercourse were not taken into
consideration.
21. Additionally, if the court finds any lacuna in appreciation of evidence and if there is
likelihood of prejudice being suffered by the accused resulting in grave miscarriage of justice,
26
KathiRaning Rawat v. The State of Saurashtra, A.I.R. 1952 S.C. 991; see also Achyut Adhicary v. State of
West Bengal, A.I.R.1963 S.C.1039.
27
Pritam Singh v The State, A.I.R 1950 S.C.169.
28
Alamelu and Another v. State, (2011) 2 S.C.C.385.
29
Toran singh v. State of M.P. (2002) 6 S.C.C. 494.
30
Kartarey v. State, A.I.R. 1976 S.C.76. ¶14. ; see also Sudama Pandey v. State of Bihar, A.I.R. 2002 S.C. 293.
31
Shamsher Singh v. State of Haryana, (2002) 7 S.C.C. 536.
32
Shivanaryana Laxminarayna Joshi v. State of Maharashtra, A.I.R. 1980 S.C.439.
33
Dharamveer v.State of U.P., (2010) 4 S.C.C.469.

court can directly go into important detail to analyse the correctness of such an appreciation
of particular evidence in the interest of justice.34
22. It is submitted that when the High Court has not correctly appreciated the facts of the
case and has arrived at erroneous conclusions, the Supreme Court will re-appreciate the
evidence.35 In the present matter, the High Court has failed to appreciate the evidence in
lawful manner which in turn resulted into conviction of the appellant.36
As the foundational fact was not proved beyond reasonable doubt and concurrent findings of
the High Court and Sessions Court are perverse in nature, therefore, grave injustice is done
to the appellant. Hence, the instant Special Leave Petition is maintainable under art. 136 of
the Constitution of India, 1950.
2. THE ORDER AND JUDGMENT OF THE HIGH COURT AND SESSIONS COURT ARE LIABLE TO
BE SET ASIDE.
23. It is most humbly submitted before the Hon’ble Supreme Court that the order and
judgment passed by the Sessions Court and upheld by High Court is liable to be set aside
since no reliance can be placed on the school-leaving certificate [2.1], medical evidences
cannot be relied upon [2.2] and benefit of faulty investigation should be given to the accused
[2.3].
[2.1]THE SCHOOL LEAVING CERTIFICATE IS NOT A RELIABLE EVIDENCE TO DETERMINE

THE AGE OF THE VICTIM
24. It is most respectfully put forth before the court that the school-leaving certificate
adduced in the instant matter is not reliable piece of evidence to conclusively determine the
age of the deceased.
A. THE SESSIONS COURT AND HIGH COURT WERE UNJUSTIFIED IN RELYING UPON THE SCHOOL
LEAVING CERTIFICATE FOR DETERMINING THE AGE OF THE VICTIM.
25. The counsel humbly submits that in our present case the school leaving certificate was
not a valid proof of evidence to determine the age of the victim. The fact that the school
leaving certificate was issued in 2013 while the victim left school in 2007 in itself establishes
that the said school-leaving certificate was not issued in ordinary course of business of the
34
Javed Masood v.State of Rajasthan, (2010) 3 S.C.C.538. ; see also Tamilnad Mercantile Bank Shareholders
Welfare Assn.v. S.C.Sekar, (2009) 2 S.C.C.784.
35
Ramakant Rai v. Madan Rai, (2003) 12 S.C.C.395.
36
Moot Proposition. ¶7.

school. The entries in the school leaving certificate are evidently made for the purpose of the
case.37
26. To make entries reliable in school register, the person who gave the age at the time of
admission to school authorities should be examined.38 However, in the present case, the
father of the victim who gave date of birth at the time of admission is dead and the diary in
which he had written the date of birth of the deceased was not produced. Hence, there are no
material records to determine the date of birth.39 It would be thus manifest that for proving
any entry in the admission register of a school, the person claiming to be a juvenile has to
prove the said entry in accordance with law and appreciation of evidence.40
27. In the present case, PW-5, Head Mistress of ABC School who issued school leaving
certificate of the victim, agreed in her examination that scoring was done in the date of
application41 and there was no documentary proof ascertaining the age of the deceased based
on the entry in the school registers. Thus, the entry in the school registers does not satisfy the
range of acceptability as positive proof regarding the date of birth of the victim.42
28. Moreover, PW-5 who was an assistant teacher having made the said entry in school
register, no person in particular was appointed to do such entries. The manner in which the
register has been maintained does not inspire confidence for placing reliance on it.43
29. Further, it has been held that entries in school register are not of much value unless there
is evidence to show on what material and at whose instance, it is based.44 Hence, it is
respectfully submitted that the School certificate is not believable because the Principal of
school could not say on what basis date of birth was recorded in school register and what date
was declared by the girl at the time of her admission.45
30. Therefore, after taking all the above mentioned things into consideration, the school
leaving certificate fails to stand as reliable piece of documentary evidence to determine the
age of deceased.
37
Ravinder Singh Gorkhi v. State of U.P., (2006) 5 S.C.C.584.
38
Sandeep Janaji Konde vs The State Of Maharashtra, 2016 ALLMR (Cri) 1433.
39
Tata Iron Steel Co v. Abdul Wahab, A.I.R. 1966 Pat.458.
40
Mor Pal v. State, 198 (2013) DLT 487.
41
Moot Proposition, Deposition of PW-5.
42
Ram Deo Chauhan v. State of Assam, (2001) 5 S.C.C. 714.
43
Ram Deo Chauhan v. State of Assam, (2001) 5 S.C.C.714.
44
Umesh Chand v.State of Rajasthan, A.I.R.1982 S.C.1057.
45
State of M.P. v. Munna@Shambhoo, (2016) 1 S.C.C. 696.

B. SCHOOL LEAVING CERTIFICATE IS NOT IN ACCORDANCE WITH THE JUVENILE JUSTICE

RULES,2007
31. It is humbly submitted that according to section 3446, the provisions of the JJ Act47 in
accordance with determination of age of victim are given in rule 1248 of the Juvenile Justice
Rules, 2007, are to be followed. According to the rule 12(3) (a) (ii) of the Rules,” the date of
birth certificate from the school (other than a play school) first attended;” is an admissible
document to prove the age of the juvenile and these rules shall be adopted while determining
the age of the juvenile.49
32. It is respectfully put forth before the Hon’ble court that the school-leaving certificate50
produced in the court is not in accordance with the rules because it is not of the school first
attended by the victim. Moreover, when the school certificate produced does not bear the
name of the original school from which the student was transferred then that certificate
cannot be relied upon to prove the age.51
33. In the case of Mahadeo S/o Kerba Maske v. State of Maharashtra and Anr 52, it was held
that the statutory ruling prevailing in JJ rules regarding the ascertainment of age of the
juvenile, can be rightly followed by the courts for ascertaining the age of the victim as well.
Hence, in present case the provisions of JJ act will be applicable to determine the age of the
victim too.
53
34. Further it is contented that in State of M.P. v. Anoop Singh it was held that Rule
12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is
applicable in determining the age of the victim of rape, and that medical opinion can be relied
on only in the absence of the documents prescribed in Rule 12(3) of the JJ Rules. Hence,
these rules are to be followed strictly.54 However, in the present case medical opinion has
also been taken to determine the age of victim. This shows that the school leaving certificate
in itself was not sufficient and was unreliable to prove the age of the victim.
[2.2] THE MEDICAL EVIDENCE ARE NOT RELIABLE IN THE PRESENT MATTER
46
Protection of Children from Sexual Offences (POCSO) Act, 2012.
47
Juvenile Justice Act, 2002.
48
The Juvenile justice (Care and Protection of Children) Rules, 2007.
49
Ashwani Kumar Saxena v. State of M.P., (2012) 9 S.C.C.750.
50
Moot Proposition, Document- BB.
51
Jagtar Singh v. State of Punjab, A.I.R. 1993 S.C. 2448.
52
(2013) 14 S.C.C. 637.
53
(2015) 7 S.C.C.773.
54
Jodhbir Singh v. State of Punjab (2012) 13 S.C.C. 591.

35. It is most respectfully put forth before this Hon’ble Court that none of the doctors or
experts who conducted radiological ossification test, post-mortem and DNA test was called
as a witness in the court. The prosecution as well as the court invariably placed high reliance
on the finding of these tests in convicting the accused.
A. NON-EXAMINATION OF RADIOLOGIST IS FATAL TO PROSECUTION CASE.
36. It is humbly submitted before this Hon’ble Court that the age determined by the
ossification test in the absence of the examination of the radiologist should not be relied
upon.
A.1. Little reliance has to be placed on age estimated from singular factor.
37. It is submitted before the court that multiple factors should be taken into consideration
while determining age, which includes teeth, height and weight, ossification of bones and
minor signs.55 When considered individually, little reliance is to be placed on each individual
test, but taken together they may offer a fairly reliable means to ascertain the age.56
38. The Supreme Court in a case has upheld the findings of court where ossification test
gave the age between 16-17 years and it said that this is not beyond reproach as it does not
depict the true situation as the eruption of teeth, number of teeth and the doctor conducting
the ossification test did not observe many other aspects.57 So the age estimated by ossification
test has to be verified with other age-related factors.58 However, in the present case
Ossification test was conducted from X-ray of wrist, elbow and pelvis59 and no other means.
A.2. Status of ossification of bones is not known.
39. It is submitted before this Hon’ble Court that while performing ossification test X-rays
help to determine the extent of ossification and the union of epiphytic bones.60 In girls,
epiphyses at elbow, wrist takes place between the age of 13-14 years and 16-17 years
respectively.61 Moreover, bones at pelvis unite between the age of 18-22 years.62
55
Sudhangshu Pramanick v. State of West Bengal, (2005) 3 CALLT 527 (HC).; see also Vijay@Chinee v. State
of M.P., (2010) 8 S.C.C.191.; Kailash@Tanti Banjaria v. State of M.P. 2013
56
Ram Pratap & anr. v. State of Rajasthan, 2007 (2) ILR (Raj) 245.
57
Parhlad v.State of Haryana, (2015) 8 S.C.C.688.
58
State of H.P. v. Mange Ram, A.I.R. 2000 S.C. 298.
59
Moot Proposition, Post Mortem Document-CC.
60
Smt.Tanno @ Tarawati v. State Of U.P., C.R.A. No. 324/1998. (Allahabad HC)
61
PARIKH’S TEXTBOOK OF MEDICAL JURISPRUDENCE, FORENSIC MEDICINE AND TOXICOLOGY, (CBS Publishers,
6th ed., 2007), Pg-2.10.
62
Ibid.

40. When fusions of wrist, elbow and knee joints are complete, the girl is found to be
between 20-21 years in age.63 When the upper end of the tibia and of femur has not fused, it
indicates that the age of the victim is less than sixteen and half years.64 As no radiologist from
the respondent (prosecution) side came to certify the contents of the report, it left the
appellant helpless because the status of these X-rays was not known to the defense, whether
the bones were actually united or not and what led the radiologist to conclude that the
deceased was exactly 15 years of age.
A.3. Ossification test gives range of age instead of exact age.
41. It is submitted that according to Lyon’s Medical Jurisprudence, it is prudent to give a

range leaving some scope for a margin of error instead of estimating the exact age of a
person.65 An X-ray ossification test can by no means be so infallible and accurate as so to
indicate the correct number of years a person has lived.66
42. However, in the present case, a definite age of 15 years came out from ossification test67,
which is not possible. Had any opportunity been given to the defense in trial process to cross-
examine the radiologist, this discrepancy in ascertaining the accurate age instead of giving a
range thereof could have been solved.
43. Therefore, as the radiologist who conducted the ossification test is not examined and age
of the victim is not proved beyond reasonable doubt, conviction cannot be sustained.68
B. NON-EXAMINATION OF DOCTOR WHO CONDUCTED POST MORTEM RENDERS THE

RESPONDENT’S CASE IMPROBABLE.
44. It is the humble submission on behalf of the appellants that the post mortem report
cannot be relied upon in absence of deposition of the doctor who conducted it. The doctor’s
deposition was necessary in order to conclude that the deceased was accustomed to sexual
intercourse. He could have thrown some light upon her age from the development of her
organs, height and weight that are not explicitly mentioned in his report.69
B.1 Eruption of Third Molar Tooth.
63
Netram Baghel v. State of U.P. 2017 (1) ALJ 634.
64
Dhobeidhar Naik v. State, 2001 (I) OLR 122.
65
LYON’S MEDICAL JURISPRUDENCE & TOXICOLOGY (Delhi Law House, 11th ed. 2008), Pg 399.
66
Chathu v.Govindan Kutty,AIR 1958 Ker 121; State v. Musha & Ors., ILR (1970) Del.198.
67
Moot Proposition, ¶3.
68
State of M.P. v. Munna @ Shambhoo Nath, (2016) 1 S.C.C. 696.
69
Moot Proposition, Post Mortem Report Document-CC.

45. It is also submitted that eruption of third molar teeth is another factor to ascertain age of
a person and it usually erupts between the ages of 17-35 years.70 Moreover, in Dilbahar v.
GNCT of Delhi71 the court denied to given protection under JJ Act72 by noting that the
petitioner had 28 teeth and space for third molar behind the second molar tooth in the jaw
was formed.
46. In the instant case, however, third molar tooth has not completely erupted but space for
the same has been formed.73 This further raises doubt over the age of the victim.
B.2 Secondary Sexual Characters are well developed.
47. It is submitted before this Hon’ble Court that development of secondary sexual
characters has not been considered by the Court to determine the age of the victim. In a case
wherein the prosecution was unable to prove beyond reasonable doubt that the prosecutrix
was below 18 years of age, The High Court in a case has upheld the findings of Trial Court
that where secondary sexual characters of a girl are well developed, age of girl was
considered to be between 16-18 years age.74 In our case, victim had well developed external
genitals, breasts and nipples surrounded by pinkish area,75 therefore the prosecution has
utterly failed to prove the minority of victim on the date of incident.
48. Also, it is a serious lacuna that the prosecution had not elicited from the doctor the
reasons for the conclusion of the age76 and the advantage of these omissions should go to the
accused, who should not in the absence of proof, be convicted.77 Therefore, when the doctor
is not examined and/or subjected to scrutiny and cross-examination78, the injury report cannot
be used as a substitute for the evidence of the doctor.79 Also, no reasons for not examining
the doctor who conducted the post-mortem were stipulated before the court, which further in
turn deprives the post-mortem report of its credibility.80
C. ORAL EVIDENCE OF MOTHER WILL PREVAIL OVER MEDICAL EVIDENCE.
70
MODI’S MEDICAL JURISPRUDENCE AND TOXICOLOGY (Lexis Nexis Butterworths Wadhwa, , 24th ed., 2011)
,Pg-234.
71
185 (2011) DLT 598.
72
Juvenile Justice Act, 2000.
73
Moot Proposition, Post Mortem Document-CC.
74
State of M.P. v. Niraj, MCRC No. 4022 of 2007. (M.P.HC).
75
Moot Proposition, Post Mortem Report, Document-CC.
76
Somgir alias Mangal Puri v. State, 1966 Cluj I.R 378.; see also Lamaism Tonjou v. Manipur Administration,
AIR 1962 Manipur 5.
77
State of Madhya Pradesh v. Bachude, 1984 Cr LR (MP) 328.
78
Dhobi Yadav v. State of Bihar, 1989 PL JR 867.
79
Ramdeo Yadav v. State of Bihar, 1987 BBCJ 775. ; see also Gafur Sheikh v. State, 1984 Cri LJ 559.
80
Bindu Mahto v. State of Bihar, 1989 Cri LJ 107 (Pat.)

49. It is most humbly submitted before this Hon’ble Court that testimony of Mother about
the age of the victim should be relied upon over ossification test. It is a well-established
principle of law that oral evidence must get primacy and medical evidence is basically
opinionative.81 The mother has admitted in her chief-examination that she solemnized her
marriage with Dharmendra in the year 1991 and had begotten Alia within one year of her
marriage.82 This statement is not contradicted by her in her cross-examination thus creating a
reasonable doubt on the prosecution case contending Alia to be below 16 years. Therefore,
mother’s testimony will gain weight over ossification test with regard to age. 83 Even if this
court considers mother’s testimony to be unreliable on this point medical evidence alone will
not be sufficient to prove the case.84
D. DNA IS NOT CONCLUSIVE TO PROVE GUILT OF THE ACCUSED.
50. It is most humbly contented before this Hon’ble Court DNA cannot be the sole basis for
establishing guilt of the accused person. It is submitted that positive result of DNA does not
conclusively prove the identity of the person.85 It is accepted that though positive DNA can
be of great significance, where there is supporting evidence, depending of course on the
strength and quality of the evidence86 but it cannot conclusively fix the identity of the
miscreant, however if found negative it would certainly exonerate the accused from the
involvement of charge.87
51. Thus, when the science of DNA is at a developing stage and when the Random
Occurrence Ratio is not available for Indian society, it would be risky to act solely on a
positive DNA report.88
52. It is humbly submitted before the court that the lab rejected the first blood samples
collected for the purpose of DNA and police failed to handle the samples diligently.89 The
test from second blood sample concluded that appellant is father of the foetus 90, for which
81
Ramanand Yadav v. Prabhu Nath Jha (2003) 12 S.C.C. 606.
82
83
Vishnu v. State of Maharashtra , A.I.R. 2006 S.C.508.
84
Kishorilal v. State, A.I.R.1957 Punj.78.
85
Kamti Devi v. Poshi Ram, (2001) 5 S.C.C.311.;see also The [Draft] Human DNA Profiling Bill, 2012 (India).
86
R v. Watters, (2000) All E.R.1469 (England).; see also Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra, (2005) 5 S.C.C. 294.
87
Premjinhai Bachubhai Khasiya v. State of Gujarat & Anr, 2009 Cri.L.J. 2888.; Champaben v. State of
Gujarat, 2014 GLH (2) 76.
88
Champaben v. State of Gujarat, 2014 GLH (2) 76.
89
Moot Proposition. Deposition of PW-6 & 7.
90
Moot Proposition, ¶3.

doctor who conducted the DNA test was also not examined before the court This act renders
whole procedure doubtful.
[2.3] INVESTIGATION IS FAULTY IN THE PRESENT MATTER.
53. It is contended before the court that conviction of the appellant cannot be sustained upon
improper investigation. When there are material infirmities caused due to improper
investigation, benefit of doubt should be given to accused.91 In the present matter, the police
investigation is faulty and benefit should be given to the Appellant.92
54. Firstly, PW – 7 has recorded the statement of the father of the deceased then also he did
not investigate about the diary in which actual date of birth of Alia had been written. In his
deposition PW – 7 has admitted that he had not verified the age of the accused93 and they also
did not investigate about the school first attended by Alia. The investigation officer did not
collect any document with respect to age of informant i.e. PW-1 and her legal heirs.94.
55. Secondly, police did not examine the eyewitness to the incident of suicide.95
Furthermore, she was not deposed before the court, if she would have been deposed before
the court then the controversy regarding the suicide of victim might have been solved and she
would have thrown light in the instant matter. Thus, non- examination of material witness is
fatal to the case of prosecution.96
56. It is submitted before the Hon’ble Court that the benefit of every reasonable doubt should
be given to the accused.97 In the case of State of Uttarakhand v. Jairnail Singh, the Supreme
Court held that the prosecution should have overcome the investigation infirmities before
filing the charge sheet. If not done, then the benefit of infirmities in investigation can rightly
be given to the accused.98 Therefore, the benefit of improper investigation and infirmities
should be given to the appellant.
57. Therefore, the prosecution has failed to establish the guilt of the accused beyond
reasonable doubt.99
91
State of Uttarakhand v. Jairnail Singh, 2017 (13) SCALE 410.
92
Kailash Gour v. State of Assam, (2012) 2 S.C.C.34.
93
94
Ibid.
95
Shahaj Ram v. State of U.P., (1973) 1S.C.C.490. ¶12.
96
Mathura Yadav v. State of Bihar, 2002 (6) S.C.C.451.
97
State Of Punjab v.Jagir Singh, (1974) 1 S.C.R. 328.
98
State of Uttarakhand v. Jairnail Singh, 2017 (13) SCALE 410.
99
Ramdayal v. State of M.P., (2008) 63 AIC 445 (M.P.).; see also Narendra Singh v. State of Madhya Pradesh,
1996 Cri. LJ 198.

As documentary evidence and medical evidences are unreliable in nature and the
investigation was faulty; therefore, the age of the victim was not proved beyond reasonable
doubt. Hence, the order and judgment of Hon’ble Sessions Court upheld by the Hon’ble High
Court is liable to be quashed.
[3]. OFFENCE CANNOT BE ESTABLISHED IN THE PRESENT CASE
58. It is most respectfully submitted that taking the object and purpose of POCSO into
consideration in the present case, the act of the Appellant cannot be termed as an offence
[3.1], and that the mens rea of the appellant cannot be established [3.2].
[3.1] THE ACT WAS NOT IN THE NATURE OF ASSAULT
59. The appellant respectfully submits that one of the aims of the POCSO Act is to curb
instances of sexual assault. Definition of “assault” is required to be refereed from IPC as it is
not defined under the POCSO act per se. Under section 351 of IPC100 assault is defined as
“any gesture, or any preparation intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend that he who makes that gesture or
preparation is about to use criminal force to that person".
60. Simultaneously it becomes imperative to define “criminal force”101 as stipulated u/s 350
of IPC as “intentional use of force to any person, without that person's consent, in order to
committing of any offence, or intending by the use of such force to cause or knowing it to be
likely that by the use of such force he will cause injury, fear or annoyance.”
61. Therefore, by the above mentioned definitions, it is pertinent to state that to bring any act
under the ambit of assault, criminal force must be used against the will of that person. Now,
the appellant submits that breaking the term “sexual assault" used in “aggravated penetrative
sexual assault” under section 5 of the POCSO Act goes on to suggest that penetration should
be there in the nature of assault to constitute an offence under this act. Hence, the sexual
intercourse u/s 5 of POCSO is punishable only when it is in the nature herein before
explained.
62. It is respectfully submitted that by using the approach of purposive interpretation the
definition of “aggravated penetrative sexual assault” does not recognise the act complained of
in the present matter as an offence since assault cannot be proved therefrom.
100
§ 351 of Indian Penal Code, 1860.
101
§ 350 of Indian Penal Code, 1860.

63. It is submitted that with a view to read the provisions of the Act in a proper and effective
manner, literal interpretation may give rise to an anomaly, absurdity, or injustice which must
be avoided102. So for the court to interpret a statute in a reasonable manner, the rules of
purposive construction have to be resorted to which would require the construction of the Act
in such a manner so as to see that the object of the Act get fulfilled.103 Therefore, the
interpreter should imagine himself or herself in the shoes of the legislature while interpreting
any enactment.
64. In the present case if literal interpretation is given to section 5 of POCSO, it would give
rise to grave injustice to the party. Moreover, a penal statute should be construed in such a
way that a person who has not committed or abetted any offence should not be burdened with
a penalty.104
65. A bare reading of the preamble of Protection of Children from Sexual Offences Act
would tell that it has been made under the ambit of the guidelines provided by the
Conventions on the Rights of the child that aims to protect the child from any kind of abuse.
Therefore, to consider any act as an offence under section 5 of POCSO, it has to be in the
nature of assault. Any sexual act, without the nature of assault and criminal force cannot be
termed as an offence until and unless the contrary is proved.
66. Furthermore, the victim became pregnant not out of sexual assault but simply sexual
intercourse between the victim and the appellant. Therefore, no offence can be established in
the present case as the act was consensual and not in the nature of assault.
[3.2]THE VICTIM WAS IN A CONSENSUAL RELATIONSHIP WITH APPELLANT
67. The counsel humbly submits that the mother of deceased was aware of the love affair of
the appellant and Alia since a few days before the incident of suicide took place. 105 The
testimony of the mother of the deceased is corroborated by the oral report registered by her106
and the fact that the victim and Kamles had never denied their relationship shows that they
both were in a consensual relationship. The victim was a fully grown girl may be one who
had yet not touched required chronological age, but in the age of discretion, sensible and
aware of the intention of the accused.107
102
Joginder Yadav v. State of Bihar, (2015) 9 S.C.C. 244.
103
New India Assurance Co. Ltd. v. Nusli Neville Wadia & Anr., (2008) 3 S.C.C. 279.
104
State of M.P. v. Azad Bharat Finance Co. & Anr., 1966 Supp S.C.R. 473.
105
106
Moot Proposition, Oral Report Document-AA.
107
Shyam v. State of Maharashtra, A.I.R.1995 S.C.2169.

68. Moreover, as per the confessional statement prepared under the presence of two panch
witnesses, the appellant directed the police towards the location where he used to make love
to Alia.108 This suggests that the accused had no intention to commit any offence upon the
deceased. Consent implies agreement and submission of a woman to sexual intercourse. The
consent may be express or implied.109
69. In the case of Teddy Bear Clinic for Abused Children v. Minister of Justice and
Constitutional Development110, the constitutional Court of South Africa has held that
provision of the criminal law (Sexual Offences and Related Matters) are inconsistent with the
constitution because it is restricting the right to dignity and right to privacy of adolescents
above the age of 12 and below the age of 16.111 Therefore, the consent factor needs to be
taken into account while dealing with the cases of sexual assault.
70. In the case of State v. Suman Dass112, the court stated that if the person has not
committed any assault on the prosecutrix but involved in the sexual intercourse, then the act
will not be considered any offence under Protection of Sexual Offences Act, 2012. In the
present matter also Alia was having the voluntary relationship with the appellant and
thereafter involved in sexual intercourse. Hence, no offence could be made out under POCSO
71. As per the clause sixthly of section 375113 (before the CLA, 2013), to establish the
charge against the accused, minority of the victim must be proved. In the instant case, the
appellant has disproved the minority of the victim and established the factum that both the
parties were involved in consensual sexual intercourse owing to love affair. Therefore, no
offence can be established under sec. 375 of the IPC.
72. Thus, in the present case, the conduct of the victim showed that the consent was there;
hence, the accused is liable to be acquitted.114
In the light of object of POCSO, the act complained of is not in the nature of assault and
hence, it cannot be termed as an offence u/s 5 of POCSO. Moreover, consensual relationship
was there between the deceased and appellant therefore no offence is made out under Section
375 of IPC as well, thus conviction is liable to be set aside.
108
109
Nilamber Goudo v. State, 1982 Cri LJ 172 (Ori).
110
(2013) ZACC 35. (South Africa).
111
(2013) ZACC 35. (South Africa).
112
SC No.66/13.
113
§ 375 (Sixthly) of IPC- With or without her consent, when she is under sixteen years of age.
114
State of Rajasthan v. Kishanlal, A.I.R. 2002 S.C.2250.

Prayer XIII
PRAYER
Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that this Hon'ble Court may be pleased to:
1. Declare that the present Special Leave Petition under Art. 136 of the Constitution of India
is maintainable.
2. Quash the Order and Judgment of conviction of appellant by Hon’ble High Court and
Sessions Court.
3. Acquit the Appellant from charges of section 376 of IPC and section 6 of the POCSO act,
2012.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.
Sd/-
(Counsel for the Appellant)

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16TH JUSTA CAUSA NATIONAL MOOT COURT COMPETITION 2018

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION (CRIMINAL) NO. /2018

KAMLES MODI- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - APPELLANT

STATE OF MAHANANDA- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESPONDENT

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

THE HONOURABLE JUSTICES

THE HONOURABLE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF ABBREVIATION ...................................................................................................... III

INDEX OF AUTHORITIES ......................................................................................................... IV

STATEMENT OF JURISDICTION ............................................................................................... IX

STATEMENT OF FACT ............................................................................................................... X

ISSUES RAISED ........................................................................................................................ XI

SUMMARY OF ARGUMENTS ................................................................................................... XII

ARGUMENTS ADVANCED ........................................................................................................... 1

[1.1]. GRAVE INJUSTICE HAS BEEN DONE TO THE APPELLANT. ....................................... 1

A. FOUNDATIONAL FACT UNDER PRESUMPTION PROVIDED BY PROTECTION OF

CHILDREN FORM SEXUAL OFFENCES (POCSO) IS NOT PROVED BEYOND REASONABLE

C. CONCURRENT FINDINGS OF THE COURTS CAN BE INTERFERED WITH. ......................... 4

[2.1]THE SCHOOL LEAVING CERTIFICATE IS NOT A RELIABLE EVIDENCE TO

DETERMINE THE AGE OF THE VICTIM ............................................................................. 5

B. SCHOOL LEAVING CERTIFICATE IS NOT IN ACCORDANCE WITH THE JUVENILE JUSTICE

A. NON-EXAMINATION OF RADIOLOGIST IS FATAL TO PROSECUTION CASE.................... 8

A.2. Status of ossification of bones is not known. ...................................................... 8

MEMORANDUM ON BEHALF OF THE APPELLANT

B. NON-EXAMINATION OF DOCTOR WHO CONDUCTED POST MORTEM RENDERS THE

RESPONDENT’S CASE IMPROBABLE. ................................................................................ 9

B.1 Eruption of Third Molar Tooth............................................................................ 9

B.2 Secondary Sexual Characters are well developed. ........................................... 10

C. ORAL EVIDENCE OF MOTHER WILL PREVAIL OVER MEDICAL EVIDENCE. ................ 10

D. DNA IS NOT CONCLUSIVE TO PROVE GUILT OF THE ACCUSED. ................................ 11

[2.3] INVESTIGATION IS FAULTY IN THE PRESENT MATTER ........................................... 12

[3]. OFFENCE CANNOT BE ESTABLISHED IN THE PRESENT CASE ........................................ 13

[3.1] THE ACT WAS NOT IN THE NATURE OF ASSAULT .................................................. 13

[3.2]THE VICTIM WAS IN A CONSENSUAL RELATIONSHIP WITH APPELLANT ................ 14

PRAYER ................................................................................................................................ XIII

MEMORANDUM ON BEHALF OF THE APPELLANT

MEMORANDUM ON BEHALF OF THE APPELLANT

S.N. AUTHORITIES CITED REFERRED AT

1. Achyut Adhicary v. West Bengal A.I.R.1963 S.C.1039. 4

2. Ashwani Kumar Saxena v. State of M.P., (2012) 9 7

3. Arunanchalam v. P.S.R. Sadhanatham, (1979) 2 S.C.C.297. 1

4. Alamelu and Another v. State, (2011) 2 S.C.C.385. 4

5. Bindu Mahto v. State of Bihar, 1989 Cri LJ NOC 107 10

6. Birad Mal Singhvi v. Anand Prohit, A.I.R. 1988 S.C.1786 4

7. Bhola Singh v. State of Punjab, (2011) 11 S.C.C. 653. 2

8. Champaben v. State of Gujarat, 2014 GLH (2) 76. 11

9. Chathu v. Govindan Kutty, AIR 1958 Ker 121. 9

10. Dharamveer v.State of U.P., (2010) 4 S.C.C.469. 4

11. Dhobeidhar Naik v. State, 2001 I OLR 122. 8

12. Dhobi Yadav v. State of Bihar, 1989 PL JR 867. 10

13. Dhanwantrai Balwantrai Desai v. State of Maharashtra, 2

14. Dilbahar v. GNCT of Delhi, 185 (2011) DLT 598. 9

15. Ganga kumar Srivastav v. State of Bihar, A.I.R. 2005 1

16. Hem Raj v. State of Ajmer, A.I.R. 1954 S.C. 462. 1

17. Indira Kaur v. Sheolal Kapoor, A.I.R. 1988 S.C. 1074. 3

18. Jagtar Singh v. State of Punjab, A.I.R. 1993 S.C. 2448 7

19. Javed Masood v.State of Rajasthan, (2010) 3 S.C.C. 538. 5