TEAM CODE: F-03

FRESHERS MOOT COURT COMPETITION

THAKUR RAMNARAYANA COLLEGE OF LAW 2022

BEFORE THE HON’BLE SUPREME COURT OF INDIVA

Writ Petition (Civil) No. _____ / 2019

(PUBLIC INTEREST LITIGATION UNDER

ARTICLE 32 OF THE CONSTITUTION OF STATE OF INDIVA)

PEOPLES HUMAN RIGHTS ASSOCIATION ………….. (PETITIONER)

v.

UNION OF INDIVA…………………………………………..(RESPONDENT)

PETITION INVOKED UNDER ART. 32 OF

THE CONSTITUTION OF INDIVA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIV

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 TABLE OF CONTENTS

I. LIST OF ABBREVIATIONS……………………………………… 3-5

II. LIST OF AUTHORITIES ………………………………………… 6-7

• STATUTES
• ARTICLES AND BOOKS
• WEBSITES
• OTHER AUTHORITIES

III. STATEMENT OF JURISDICTION ………………………………. 8

IV. STATEMENT OF FACTS …………………………………………. 9-10

V. STATEMENT OF ISSUE …………………………………………… 11

VI. SUMMARY OF ARGUMENTS…………………………………… 12

VII. ARGUMENTS ADVANCED……………………………………… 13-25

• Issue-01 Whether PIL is maintainable or not? 13- 15
• Issue-02 Whether the case should be remanded back to the court of sessions? 16 - 25

VIII. PRAYERS…………………………………………………… 26

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 LIST OF ABBRIEVATIONS

ABBREVIATION FULL FORM

§ And

¶ Paragraph

A.P. Andhra Pradesh

A.I.R All India Radio

All Allabad

Anr Another Art Article

Cal Calutta

C.B.I Central Bureau Of Investigation

Co. Company

Cr. P.C Criminal Procedure Court

Dr. Doctor

Ed Edition

Etc And So On

HC High Court

Hon’ble Honourable

i.e That is

I.L.R Indiva Law Report

J.J Juvenile Justice

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L.T.D Limited

M.P Madhya Pradesh

MFG Manufacture

NCRB National Crime Record Bureau

Ors Others

Para Paragraph

PEPC Public of the education and protection of

children

PIL Public Interest Litigation

Prof. Professor

SC Supreme Court

S.C.C Supreme Court Cases

S.C.R Supreme Court Report

S.C.W Supreme Court Weekly

Sec Section

U.O.I Union Of India

U.P Uttar Pradesh

UNCRC United Nation Convention on The Rights

of The Child

US United States

V. Versus

VS. Versus

vis-à-vis May Refer To

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u/s Under the section

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 TABLE OF AUTHORITIES

I. Cases

1. Arun Vasantrao Betkekar vs Government Of India on 15 October, 2009 [Bench: A.M. Khanwilkar]
2. Bachan Singh v. the State of Punjab, A.I.R. 1980 SC 898.
3. Bachan Singh, Sher Singh and anr. and Ujagar Singh and anr. Vs. State of Punjab and Ors.,
AIR 1982
4. BALCO Employees Union [Regd] vs. Union of India,
5. Baldev Raj vs State Of Haryana on 17 September 1990 1991 AIR 37, 1990 SCR Supl. (1) 492
6. Bandhua Mukti Morcha v. Union of Indiva, A.I.R 1984 SC 802
7. D.S. Nakara v. Union of Indiva, A.I.R. 1983 130..
8. Dhansukh Bhikhabhai Kapadi v. state of Gujrat, 2009 CrLJ 4319 (4327)( Guj0-DB)
9. Dr. B. Singh v. Union of India & Ors. (AIR 2004 SC 1923)
10. In State of Punjab Vs. Gurdeep Singh (1997)7-SCC-714,
11. Maneka Gandhi v. Union of India, (1978) 1 SCC 248;
12. Mulakh Raj Bucha vs State Of U.P. & Others on 12 July 2010
13. Namit Sharma v. Union of India, (2013) 1 SCC 745
14. Narayan Singh & Ors. v. State of M.P. (AIR 1985 SC 1678)
15. Ramesh Kumar v. State, 2010 CrLJ 85 (91) (De-DB)
16. Ramjilal v. Income Tax Officer, AIR 1951 SC 97
17. Sachidanand Pandey. VS. State of West Bengal
18. Sahadevan & another vs. State of Tamil Nadu, [(2012) 6 SCC 403].
19. Seth Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 39
20. Sidhapal Kamala Yadav v. State of Maharashtra.
21. State of Bihar Vs. Kameshwar Singh (AIR 1952 SC 252)
22. State of Punjab vs. Bhajan Singh & others, [(1975) 4 SCC 472],
23. Union of India v. T.R. Varma, AIR 1957 SC 882
24. Hari Mohan Mandal vs. State of Jharkhand
25. State of Maharashtra vs M.H. George

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II. STATUTES
1. The Constitution of Indiva, 1950
2. Indivan Penal Code, 1860
3. Criminal Procedure Code (Amendment) Act, 2009
4. The Indivan Evidence Act

III. ARTICLES AND BOOKS

1. The code of criminal procedure
2. Law of Relating to protections of Human Rights[second edition]
3. The Law of Evidence
4. Criminology

IV. WEBSITES REFERRED

1. www.scaline.com
2. www.manupatra.com
3. www.Ipleaders
4. www.casemine.com
5. www.indiankanoon.com

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 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indiva has jurisdiction to hear the instant matter under ‘Art.32’ of the
Constitution.

Art. 32 of the Constitution reads as: Remedies for enforcement of rights conferred by this Part-
I. The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
II. The Supreme Court shall have the power to issue directions or orders or writs, including writs
like Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
III. Without prejudice to the powers conferred on the Supreme Court by Cl. (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
IV. The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.

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 STATEMENT OF FACTS

For the sake of brevity and convenience, the facts of the case are summarized as –

1. Mr. Rajesh murdered his wife in a drunken rage at night in his house. Then he fled away
from the scene and took shelter, in his friend Vicky’s house. After a few hours, when he
came to his senses, he narrated the incident to Vicky. After hearing this, Vicky handed him
over to the police. Mr. Rajesh was then tried by the Sessions Court and without examining
other witnesses, only based on extra-judicial confession; he was convicted for an offense
punishable under Section 302, IPC and sentenced to life imprisonment in 2019.
2. Mr. Rajesh was sent to the Central Prison in Nampur. In the prison, he met with one Naresh
and they became good friends. After they became friends, Naresh put a proposal before
Rajesh to marry his daughter. In the meantime, Rajesh was released on bail by the Hon’ble
High Court of Maharajya in the year 2020.
3. In 2020, the marriage between Rajesh and Naresh’s daughter was solemnized. Out of this
wedlock, they were blessed with twin baby boys.
4. However, by the year 2021, Rajesh had started suspecting the fidelity of his wife. They had
heated arguments between them about the same and in a state of anger, Rajesh hacked his wife
to death by an agricultural spade. He then killed his two children who were sleeping and then
he tried to commit suicide. At that time, after hearing the noise, the neighbours rushed in and
overpowered him.
5. The matter was tried by the Sessions Court. The defense lawyer did not cross-examine
witnesses of the prosecution nor did he produce any evidence on record. Thereafter, Rajesh
was sentenced to death under Section 302, IPC by the Sessions Court for the reason that
Rajesh was on earlier occasion convicted for an offense punishable u/s 302, IPC, and the
present case falls in the category of “rarest of rare”. High Court of Maharajya confirmed the
death sentence awarded by the Sessions Court.

6. In Appeal before the Supreme Court by Special Leave, the defense counsel argued that the
appeal against the punishment under Section 302, IPC for murdering his first wife is still
pending before the Hon’ble High Court of Maharajya and the punishment of life
imprisonment u/s 302 of IPC only based on extra-judicial confession will vitiate the very

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 purpose of justice. As regards the second conviction, it was argued that Rajesh was not given
a fair opportunity to defend and therefore the entire trial is vitiated.

7. When the Division Bench of the Supreme Court could not reach a consensus, the matter was
referred to a third judge. The third Judge felt that there was no reason to interfere in the
matter and confirmed the sentence of death in July 2021. Rajesh then submitted a Mercy
Petition in the year 2021 to the President of Indiva which was rejected in the year 2022.

8. On 11th February 2022, the black warrant for the execution of Rajesh has been issued by the
appropriate authority. The very next day, Human Rights activists, ‘Peoples Human Rights
Association, Maharajya’, filed a Public Interest Litigation claiming that Rajesh cannot be
executed because his trials were vitiated by illegalities and his execution would violate
several provisions of the Constitution of Indiva. Therefore, this is a fit case that deserves to
be remanded back to the Court of Sessions.

9. The Counsels representing the Petitioners have endorsed their Pleadings before the Supreme
Court under Article 32 of the Constitution of Indiva.

Note: Laws in Indiva are the same as laws in India

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 STATEMENT OF ISSUE

ISSUE NO. I:

WHETHER PIL IS MAINTAINABLE OR NOT?

ISSUE NO. II:

WHETHER THE CASE SHOULD BE REMANDED BACK TO THE COURT OF

SESSIONS?

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 SUMMARY OF ARGUMENTS

ISSUE NO. I: WHETHER PIL IS MAINTAINABLE OR NOT?

10. The writ petition filed in the Supreme Court is not maintainable as: firstly, there existed an
efficacious alternative remedy and secondly, the writ is not maintainable on account of non-
contravention of any fundamental right.

11. The fundamental rights of the petitioner have not been violated. Even so, the fundamental
rights are subject to inherent limitations which are imposed by the Constitution itself and the
existence of alternative remedy are sufficient to make the petition fail.

ISSUE NO. II: WHETHER THE CASE SHOULD BE REMANDED BACK TO THE COURT OF
SESSIONS?

12. The case should not be remanded back in the Session Court as firstly, the fundamental
rights of the petitioner have not been violated, secondly, The convict was allowed to avail
the legal remedies available to him in the instant case (bailment, Special leave, Mercy
Petitioner) trinity to the above-mentioned reasons the ferule granted by the legal
authorities was in the approbation of the state of the affairs.

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 ARUGEMENT ADVANCEMENT

ISSUE NO. I: WHETHER PIL IS MAINTAINABLE OR

NOT?

13. It is humbly submitted before this Hon’ble Supreme Court of Indiva that Public interest
litigation is the use of the law to advance human rights and equality or raise issues of broad
public concern. It helps advance the cause of minority or disadvantaged groups or individuals.
14. Public interest cases may arise from both public and private law matters. Public law concerns
the various rules and regulations that govern the exercise of power by public bodies. Private
law concerns those cases in which a public body is not involved, and can be found in areas such
as employment law or family law. Public interest litigation is most commonly used to challenge
the decisions of public authorities by judicial review.
15. A judicial review is a form of court proceeding in which a judge reviews the lawfulness of a
decision or action, or a failure to act, by a public body. Judicial review is concerned with
whether the law has been correctly applied, and the right procedures have been followed.
16. The writ petition filed in the Supreme Court is not maintainable as: firstly, there existed an
efficacious alternative remedy and secondly, the writ is not maintainable on account of no
contravention of any fundamental right. The fundamental rights of the petitioner have not been
violated. Even so, the fundamental rights are subject to inherent limitations which are imposed
by the Constitution itself, and the existence of alternative remedies is sufficient to make the
petition fail.

I.1 Petitioner has no locus standi in the instant case:

17. The respondent submits that the Court has held that only if there is a violation of Fundamental
Rights can it step in under the Jurisdiction of Article 32 1. The petitioner is raising a mere
scholarly objection, without any locus standi.

1
Right to equality is also the part of Article 21 of the Indian Constitution which is the fundamental right. This right includes equality
before the law, the prohibition of discrimination, etc. No citizen can be discriminated against based on sex, caste, colour, creed or
religion. And it is a fundamental right which cannot be violated by anyone. If this right is violated then it is the dishonour of Article
21.

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 18. When an authority has been specifically set up to hear the issues pertaining to the nature of this
writ petition, the petitioner need not bring up this issue before the Hon’ble Court.

I.2. No violation of fundamental rights:

19. The jurisdiction under Art. 32 can be invoked only when Fundamental Rights are violated 2. It
has been held that if a right, other than a fundamental right is claimed to be violated then such
questions can be addressed only in the appropriate procedures and not on an application under
Art. 32 3
20. In the instant case, there has been no direct and inevitable effect on the fundamental
rights 4.Further, any violation of fundamental rights as claimed by the petitioner is illusionary. It
is submitted that in the second part of the submission it will be shown that there is no violation
of fundamental right under Article 14 and Article 21 of the Constitution 5.

I.3 Existence of an alternative remedy:

21. It is submitted before this Hon’ble court that an SC does not ordinarily issue a writ when an
alternative efficacious remedy is available. Under article 32, the SC does not decide disputes for
which remedy is available under general law. The principle has been stated by SC as follows 6:

“It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he
should be required to pursue that remedy and not invoke the special jurisdiction of the SC to issue a
prerogative writ. The existence of an adequate legal remedy is a thing to be taken into consideration
in the matter of granting writ”

22. Furthermore, it is submitted that when a right or liability is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that
particular statutory remedy and not the discretionary remedy under Article 32 of the
Constitution 7
23. The honorable court laid down a chain of notable decisions with all the emphasis at their
command about the importance and significance of this newly developed doctrine of Public

2
Durga Das Basu's Commentary on the Constitution of India, 3705 (Justice Y.V Chandrachud, Justice S.S Subbramani, Justice B.P
Banerjee, 8th Ed. 2008).
3
Ramjilal v. Income Tax Officer, AIR 1951 SC 97
4
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Namit Sharma v. Union of India, (2013) 1 SCC 745
5
Constitution of Indiana, 1950 parimateria to the constitution of India, 1950
6
Union of India v. T.R. Varma, AIR 1957 SC 882
7
Seth Chand Ratan v. Pandit Durga Prasad, (2003) 5 SCC 399

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 Interest Litigation it has also hastened a sound red alert and a note of severe warning that courts
should not be allowed their process to be abused.

24. Justice Khalid in Sachidanand Pandey. VS. State of West Bengal 8 said today “today public-
spirited litigants rush to courts to file cases in profusion under this attractive name. They must
inspire confidence in courts and among the public. I will be second to no help when help is
required. But this does not mean that the doors of this court are always for anyone to walk in. It
is necessary to have some self-imposed restraint on public interest litigation.
25. There must be genuine public interest involved in the litigation and not merely an adventure of
Knight errant bone out of wishful thinking. Public interest litigation which has now come to
occupy an important field of administration of law should not be “publicity interest litigation”
or “Private Interest Litigation” or “Politics Interest Litigation”. The court of justice should not
be allowed to be polluted by unscrupulous litigants by resorting to an extraordinary jurisdiction.
26. The Supreme Court in the case of Dr. B. Singh v. Union of India & Ors. 9 held that Public Interest
Litigation is a weapon that has to be used with great care and circumspection and the judiciary
has to be extremely careful to see that behind the beautiful veil of public interest an ugly private
malice vested interest and or publicity-seeking. It is to be used as an effective weapon in the
armoury of law for delivering social justice to the citizens.
27. Further, it has been clarified that while this court must enforce fundamental rights, the court also
must ensure that this weapon under Article 32 should not be misused or permitted to be misused
creating a bottleneck in the superior court preventing other genuine violations of Fundamentals
Rights from being considered by the court of unwanted proceedings under frivolous public
interest litigation a lot of time gets wasted which could otherwise have been spent for the disposal
of cases of genuine litigants.
28. In the case of Madhya Pradesh v. Income Tax Officer 10 the Supreme Court has held that, when
there existed an adequate alternative remedy, then the writ petition would be dismissed by the
court in the timeline. The petitioners, in the case at hand, did not exercise the proper course of
action provided by the alternative remedies before filing the writ petition.

8
Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109
9
Dr. B. Singh v. Union of India & Ors. (AIR 2004 SC 1923)
Arun Vasantrao Betkekar vs Government Of India on 15 October, 2009
10
Madhya Pradesh v. Income Tax Officer, (1965) 57 ITR 637 SC.

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ISSUE NO. II: WHETHER THE CASE SHOULD BE REMANDED BACK TO THE COURT
OF SESSIONS?

29. It is humbly submitted before this Hon’ble Supreme Court of Indiva that Remand means to send
back. Where the trial court has decided the suit on a preliminary point without recording findings
on other issues and if the appellate court reverses the decree so passed, it may send back the case
to the trial court to decide other issues and determine the suit. This is called remand.
30. According to Black’s Law Dictionary Remand means,
(1) The act or an instance of sending something (such as a case, claim, or person) back for
future action.
(2) An order remanding a case, claim, or person.
31. By passing an order of remand, an appellate court directs the lower court to reopen and retry the
case. On remand, the trial court will readmit the suit under its original number in the register of
civil suits and will proceed to determine it as per the directions issued by the appellate court.
32. Section 107 (1)(b) of the Code of Civil Procedure empowers an appellate court to remand a
case.
33. The case should not be remanded back in the Session Court as firstly, the fundamental rights of
the petitioner have not been violated, secondly, The convict was allowed to avail the legal
remedies available to him in the instant case, trinity to the above-mentioned reasons the ferule
granted by the legal authorities was in the approbation of the state of the affairs.
34. Mr. Rajesh murdered his wife in a drunken rage at night in his house. Then he fled away and
took shelter, in his friend Vicky’s house. After a few hours, when he came into his senses, he
narrated the incident to Vicky. After hearing this, Vicky handed him over to the police. Mr.
Rajesh was then tried by the Sessions Court and without examining other witnesses, only on the
basis of extra-judicial confession; he was convicted for the offense

2.1. What is Extra-judicial evidence? And its relevance as evidence in

the eyes of law?
35. These are the confession that is made by the accused elsewhere than before a magistrate or in
court. It is not necessary that the statements should have been addressed to any definite
individual. It may have taken place in the form of a prayer.
a. It may be a confession to a private person.
b. It is not necessary that the statements should have been addressed to any definite
individual.

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 c. It may have taken place in the form of a prayer.
36. An extra-judicial confession has been defined to mean “a free and voluntary confession of guilt
by a person accused of a crime in the course of conversation with persons other than judge or
magistrate seized of the charge against himself. After the commission of a crime, a man may
write a letter to his relation or friend expressing his sorrow over the matter. This may amount to
a confession.
37. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test
of credibility. Extra-judicial confession is generally made before a private person which includes
even a judicial officer in his private capacity.
38. The Court has consistently held that an extrajudicial confession, to be admissible, must satisfy
the following requirements:
a. The confession must be voluntary
b. It must be made with the assistance of a competent and independent counsel, preferably of
the confession’s choice
c. it must be expressed or implied in its nature.
39. Dealing with the issue of extra-judicial confession, the Supreme Court held in Narayan
Singh’s 11 case as follows:
a. It is not open to any court to start with a presumption that extra-judicial confession is a
weak type of evidence
b. It would depend on the nature of the circumstances, the time when the confession was
made, and the credibility of the witnesses who speak to such a confession.
c. Extrajudicial confessions of the accused in a criminal case are universally recognized as
admissible in evidence against him, based on the presumption that no one would declare
anything against himself unless such declarations were true.
40. Accordingly, it has been held that a confession constitutes evidence of high order since it is
supported by the strong presumption that no person of normal mind would deliberately and
knowingly confess to a crime unless prompted by truth and conscience.
41. The fundamental rule is that a confession, to be admissible, must be voluntary In Mulk
Raj’s 12case in the year the Supreme Court further laid down as follows:

11
Narayan Singh & Ors. v. State of M.P. ( AIR 1985 SC 1678)
In State of Punjab Vs. Gurdeep Singh (1997)7-SCC-714,.
State of Punjab vs. Bhajan Singh & others, [(1975) 4 SCC 472],
Sahadevan & another vs. State of Tamil Nadu, [(2012) 6 SCC 403].
Baldev Raj vs State Of Haryana on 17 September, 1990 1991 AIR 37, 1990 SCR Supl.

12
Mulakh Raj Bucha vs State Of U.P. & Others on 12 July, 2010

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 a. An extra- Judicial confession, if voluntary can be relied upon by the court along with other
evidence in convicting the accused:
b. The confession will have to be proved just like any other fact
c. The value of the evidence as to the confession just like any other evidence depends upon
the veracity of the witnesses to whom it is made
d. The court indeed requires the witness to give the actual words used by the accused as nearly
as possible, but it is not an invariable rule that the court should not accept the evidence, if
not the actual words used by the accused as nearly as possible, but it is an invariable rule
that the court should accept the evidence, if not the actual words but substance was given.
42. If the rule is inflexible that the court should insist only on the exact words, more often as not,
this kind of evidence, sometimes more reliable and useful, will have to be excluded for, except
perhaps in the case of a person of good memory, many witnesses cannot repeat the exact words
of the accused.
43. It is for the court having regard to the credibility of the witnesses, his capacity to understand the
language in which the accused confessed, to accept the evidence or not.
44. In the circumstances, if the evidence of the witnesses is acceptable, there is no reason why the
extra-judicial confession made by the accused could not be acted upon.

2.2. Fair Trial.

45. Mr. Rajesh narrated the incident to Vicky. After hearing this, Vicky handed him over to the
police. Mr. Rajesh was then tried by the Sessions Court and without examining other witnesses,
only on the basis of extra judicial confession; he was convicted for offence punishable under
Section 302, IPC and sentenced to life imprisonment in 2019.
46. Section 164 of CRPC deals with the extra-judicial confession stating that: Sec 164 also states
that if the extra-judicial confession was made voluntarily the same can be used as a shred of
evidence. and is justified before the court once it is proved that the confession was made with
the free consent of the offender.
47. This extra-judicial confession is dealt with in Sections 24 and 27 of the Indiva Evidence Act,
1872.
The relevancy and admissibility of extra-judicial confession and discovery of facts are
governed by Section 24 and Sec 27 of the Indiva Evidence Act.
48. Sec 24 deals with the admissibility of confession made to a person in authority other than a
judicial authority and the conditions stipulated for their admissibility.
49. Sec 24 of the Indian Evidence Act states thus:

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 “a confession made by an accused person is irrelevant in criminal proceedings, if the making of
the confession appears to the court to have been caused by any inducement, threat or promise,
having reference to the charge against the accused person, proceeding from a person in authority
and sufficient in the opinion of the court, to give the accused person grounds, which would
appear to him reasonable, for supposing that by making it he would gain any advantage or avoid
any evil of a temporal nature about the proceedings against him”.
50. To attract the prohibition enacted in Section 24 the following facts must be established:
That the statement in question is a confession,
a. That such confession has been made by the accused,
b. That it has been made to a person in authority,
c. That the confession has been obtained because of any inducement, threat, or promise,
proceeding from a person in authority,
d. Such inducement, threat, or promise must have reference to the charge against the accused,
and
e. The inducement, threat, or promise must in the opinion of the court be sufficient to give
the accused ground, which would appear to him reasonable, for supporting that by making
it he would gain any advantage or avoid any evil of a temporal nature about the proceedings
against him.
51. Sec. 27 of the Indiva Evidence Act relates to the admissibility of fact discovered as a
consequence of information given, while the accused is in Police custody.
52. Sec 27 of the Indian Evidence Act states:
“Provided that when the fact is deposed to as discovered in consequence of information received
from a person accused of any offense in the custody of a Police Officer, so much of such
information whether it amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved”
53. The privy council dealt with the essentials of Sec 27 of the Indian Evidence Act and pointed out
thus:
a. The fact of which evidence is sought to be given must be relevant to the issue. The
relevancy of the fact discovered must be established according to the prescriptions relating
to the relevancy of other evidence connecting it with the crime to make the facts discovered
admissible.
b. The fact must have been discovered.
c. The discovery must have been in consequence of some information received from the
accused and not by the accused’s act.

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 d. The person giving the information must be accused of any offense He must be in the
custody of a Police Officer.
e. The discovery of a fact in consequence of information received from an accused in custody
must be deposed.
54. Therefore, only a portion of the information that relates distinctly or strictly to the fact discovered
can be proved. The rest is inadmissible.
55. In the circumstances, if the evidence of the witnesses is acceptable, there is no reason why the
extra-judicial confession made by the accused could not be acted upon.
56. The fact sheet states that the confession was made after Mr. Rajesh was entirely in his senses
and it was a voluntary admission of the crime and hence can be used as evidence.

2.3 MOTIVE
57. In the case of “Criminal Attempt”, it is the motive that makes the act wrongful though the act
was not itself wrongful
58. Usually, a person’s motive can be determined by looking at various factors leading up to the
commission of the crime. Although investigators may be able to determine a person’s motive,
that does not link them to the crime; the prosecutor does not have to prove the defendant had a
reason to engage in criminal behavior. However, a judge or jury may consider motive when
hearing the case.
59. Thus the Motives are –
a. A state of mind that accelerates or gives rise to intention.
b. An unexpressed intention.
c. An instigation to gear up the intention.
d. A clue or the reason or the thought behind the intention.
e. Not essentially there in a Criminal Case.
60. The motive may be considered as a circumstance which is relevant for assessing the evidence
but if the evidence is clear and unambiguous and the, circumstances prove the guilt of the
accused, the same is not weakened even if the motive is not a very strong.
61. In case of circumstantial evidence, generally proof of motive becomes irrelevant where the
strength of other circumstantial evidence is sufficient wherefrom a conclusion of guilt can be
drawn 13. Motive lacks its significance even in a case of circumstantial evidence if at all the other
proved circumstances undoubtedly pointing to the guilt of the accused.

13
Ramesh Kumar v. State, 2010 CrLJ 85 (91) (De-DB)

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 62. Even in case based on circumstantial evidence, when the facts are clear, it is material that no
motive has been proved 14. Merely because the witness have not stated anything about motive on
the part of appellant to commit crime is not by itself sufficient to discard their evidence.

2.4 INTENTION
63. One of the most important ingredient of a crime is Mens rea i.e. an intention to do a wrongful
act knowing the evil consequences of the same. The element of Mens rea is indicated by use of
words such as intention, malice, fraudulent, recklessness etc. There must be a mind at fault before
commission of an offence. Mens rea includes both the intention to do an act as well as abstaining
from doing an act which is required to be done. Mere intention to do a wrongful act is itself
prohibited by law. An accused will be held guilty if it’s proved that he had an intention to commit
the crime but the burden of proof lies on the opposite party and there should be sufficient
justification to conclude that intention existed.
15
64. The court in Ramachandra Gujar’s case held that intention can be only inferred from the
conduct of a person and the probable effect of such a conduct must be taken into account as well.
65. In State of Maharashtra vs M.H. George 16, the Supreme Court held that criminal intention is a
psychological fact which needs to be proved even with regards to offences under special acts
unless it’s specifically ruled out or ruled out by necessary implication.
66. In Hari Mohan Mandal vs. State of Jharkhand 17, Hon’ble Supreme Court held that it is not
essential that bodily injury capable of causing death should have been inflicted. Intention to kill
or knowledge that death will be caused is a question of fact which will be subject matter of trial.
67. In order to prevent a particular act from being committed, to forbid or rule out the element
of mens rea as a constituent part of a crime or of adequate proof of intention or actual knowledge.
68. The question is not what the word means but whether there are sufficient grounds for inferring
that the parliament intended to exclude the general rules that mens rea is an essential element
for bringing any person under the definition of ‘abet’.
69. The act itself does not make a man guilty unless his intentions were so. This maxim has been
applied by the supreme court in Sidhapal Kamala Yadav v. State of Maharashtra 18

2.5. No. Violation of fundamentals rights

14
Dhansukh Bhikhabhai Kapadi v. state of Gujrat, 2009 CrLJ 4319 (4327)( Guj0-DB)
15
Ramachandra Gujar’s case
16
State of Maharashtra vs M.H. George
17
Hari Mohan Mandal vs. State of Jharkhand
18
Sidhapal Kamala Yadav v. State of Maharashtra (2009) 1 SCC 124

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 70. In Appeal before the Supreme Court by Special Leave, the defence counsel argued that the
appeal against the punishment under Section 302, IPC for murdering his first wife is still pending
before the Hon’ble High Court of Maharajya and the punishment of life imprisonment u/s 302
of IPC only on the basis of extra judicial confession will vitiate the very purpose of justice. As
regards the second conviction, it was argued that Rajesh was not given a fair opportunity to
defend and therefore the entire trial is vitiated.
71. The jurisdiction vested in the Supreme Court is exercisable only for the enforcement of
fundamental rights conferred by Part 3 of the constitution. Where there is no question of the
enforcement of fundamental rights, Article 32 has no application.
72. While addressing the issue which was raised by the petitioner’s side stating that Mr. Rajesh was
violated his constitutional rights mentioned in the Art. 32 of the Constitution of Indiva.
And his trials were vitiated by illegalities and his execution would violate several provisions of
the Constitution of Indiva.
73. As per the fact sheet, Mr. Rajesh was allowed to exercise various remedies during his conviction.
Mr. Rajesh was allowed to appeal for the bail, was also allowed to appeal the Special leave, and
further highlighted that he was allowed to appeal for mercy. All the remedies available to a
convict were made available to him and were rightfully exercised by him but those remedies
were not accepted by the rightful authority.

74. Relying on BALCO Employees Union [Regd] vs. Union of India 19, the court has again reminded
that only the ground in which a person can maintain Public interest litigation is where there has
been an element of a violation of Article 21 on human rights or where the litigation has been
initiated for the benefit of the poor and the underprivileged who are unable to come to the court
due to some disadvantage.
75. In the present case, there is neither a violation of the fundamental rights of the petitioner nor of
the people on behalf of whom this particular petition was filed. It is submitted by the counsel for
the respondent and there is no violation of fundamentals rights hence there is no way of
approaching the court under Article 32 of the constitution of Indiva which provides remedies in
terms of violation.
76. We may also notice that public interest litigation would be maintainable only to remedy the
public wrong, injury and not for redressal of private or other disputes not genuinely concerned
with the public interest and the matters covered under the private field would hardly be made
subject matter of the public interest litigation.

19
BALCO Employees Union [Regd] vs. Union of India

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 77. Punishment: convicted for the offense under sec 300 and punished as per sec 302 of IPC which
was life imprisonment in this case.
78. Sec 300 of IPC deals with murder:
Murder. —Except in the cases hereinafter excepted, culpable homicide is murder,
a. If the act by which the death is caused is done to cause death, or
b. If it is done to cause such bodily injury as the offender knows to be likely to cause the death
of the person to whom the harm is caused, or
c. If it is done to cause bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death, or
d. If the person committing the act knows that it is so imminently dangerous that it must, in
all probability, cause death or such bodily injury as is likely to cause death, and commits
such act without any excuse for incurring the risk of causing death or such injury as
aforesaid
• Essential Ingredients:

The following are the important ingredients of Section 300:

a. Act by which the death is caused is done to cause death
b. To cause such bodily injury as the offender knows to be likely to cause death
c. To cause bodily injury to any person which is sufficient in the ordinary course of nature to
cause death
d. A person committing the act knows that it is so imminently dangerous that it must, in all
probabilities, cause death or such bodily injury as is likely to cause death. Without any
excuse for incurring the risk of causing death.
Sec 302 deals with the punishment for Sec 300:
Whoever commits murder shall be punished with death or 1 [imprisonment for life] and liable
to a fine.
79. During the year 2021, Mr. Rajesh started suspecting the fidelity of his wife. They got into a
heated argument regarding the same, in a state of anger Mr. Rajesh clubbed his wife to death
with an agricultural spade.
80. Sec 300 of IPC states that if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.
81. The matter was then tried by the Sessions Court. Where the defense lawyer did not cross-
examine witnesses of the prosecution nor did he produce any evidence on record.

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82. The examination of witnesses can be classified into three types as defined under, Section 137 of
the Indian Evidence Act, 1872 as follows:
a. Examination-in-chief means the examination of the witness by the party who calls him
b. Cross-Examination means the examination of a witness by the adverse party
c. Re-Examination means another examination of a witness, after the cross-examination, by
the party who called him.
83. There are three parts to the examination of witness and Section 138 of the Indian Evidence Act
states that the witness must be examined in the following order:
a. First, the party that called the witness examines him, this process is called examination-
in-chief as mentioned under Section 137 of the Evidence Act.
b. After the completion of the examination-in-chief, if the opposite party wants to, they can
take over the witness and cross-question him about his previous answers. The opposite
party may ask him any question regarding all the relevant facts and not merely the facts
discussed during examination-in-chief. This process has been described in Section 137 of
the act as cross-examination.
c. If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as
re-examination in Section 137 of the Indian Evidence Act, 1872.
84. To decide whether a case falls under the category of rarest of the rare or not was completely left
upon the court's discretion. However, the apex court laid down a few principles which were to
be kept in mind while deciding the question of sentence.
85. One of the very important principles is regarding aggravating and mitigating circumstances. It
has been the view of the court that while deciding the question of sentence, a balance sheet of
aggravating and mitigating circumstances in that particular case has to be drawn.
86. Full weightage should be given to the mitigating circumstances and even after that if the court
feels that justice will not be done if any punishment less than the death sentence is awarded, then
and then only then a death sentence should be imposed.
87. The SC has also discussed such aggravating and mitigating circumstances in various cases. one
of those circumstances states that if the victim is an innocent child, then the murder is to be
considered aggravating in its nature and can be included in rarest of the rare case resulting in the
death penalty for the offender.
88. In Appeal before the Supreme Court by Special Leave, the defense counsel argued that the
appeal against the punishment under Section 302, IPC for murdering his first wife is still pending
before the Hon’ble High Court of Maharajya and the punishment of life imprisonment u/s 302
of IPC only based on extra-judicial confession will vitiate the very purpose of justice. As regards

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MEMORANDUM ON BEHALF OF RESPONDENT
 the second conviction, it was argued that Rajesh was not given a fair opportunity to defend and
therefore the entire trial is vitiated.
89. When the Division Bench of the Supreme Court could not reach a consensus, the matter was
referred to a third judge. The third Judge felt that there was no reason to interfere in the matter
and confirmed the sentence of death in July 2021.
90. On 11th February 2022, the black warrant for the execution of Rajesh has been issued by the
appropriate authority.

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MEMORANDUM ON BEHALF OF RESPONDENT
 PRAYERS

Wherefore In The Light of the Issues Raised, Argument Advanced, Reasons Given And
Authorities Cited, This Hon’ble Court May Graciously Be Pleased To adjudge, hold and
declare:

1. The PIL is not maintainable.

2. To declare, that the act is constitutionally sound and that government has followed all
the necessary directives.
3. To declare, that there is no gross violation of any fundamental rights.

And pass any order that this Hon’ble Court may deem fit in the interest of equity, justice,
and good conscience. And for this act of kindness, the counsel for the respondent shall
Duty-bound forever pray.
S.d/-

(Counsel for the Respondent)

Memorandum for the Respondent 26