TC- “A01”

1st DR. BABASAHEB BHIMRAO AMBEDKAR NATIONAL MOOT COURT

COMPETITION, 2025
BEFORE THE SUPREME COURT OF TITAN
Under Article 132 of The Constitution of India

Criminal Appeal No. 591 of 2023

In matter of
William & ORS…………..………………………………..…….……………………Appellant
Versus
State of Oswalnia……………………………………………………………….…. Respondent

MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENT
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I. LIST OF
ABBREVIATIONS…………………………………………………………….....iv
II. INDEX OF AUTHORITIES…………………………………...……………………....…...v
III. STATEMENT OF JURISDICTION……………..………………...
……………................viii
IV. STATEMENT OF FACTS…………….…………………………..………………
……......ix
V. ISSUES RAISED…………………………………………………..
……………………......x
VI. SUMMARY OF ARGUMENTS…………………………….…………….……...
…...........xi
VII. ARGUMENTS ADVANCED……………………………………………..…………………
1

ISSUE 1. Whether the Sessions Court was justified in awarding death penalty to the
accused under the provisions of POCSO Act,
2012?..................................................................................1

1.1 Whether the present case falls under the category of rarest of rare cases or
not?.................1
1.2 Whether the session court follow the basic procedure while awarding the death
penalty?.7
ISSUE 2-Whether the conviction based primarily on circumstantial evidence, including the
identification parade and recovered evidence (silver anklets), meets the standard of proof
beyond a reasonable doubt?..........................................................................................................8
2.1. Whether circumstantial evidence is reliable enough to sustain a conviction beyond
reasonable
doubt?......................................................................................................................8
2.2 Whether the Identification Parade was Admissible and
Credible?....................................10
2.3 Whether the recovery of silver anklets from Harris establishes the guilt of all
accused or merely indicates possession without proving direct involvement in the
crime?.......................12
2.4 Whether the credibility of eyewitness testimony can be challenged based on
inconsistencies, lack of independent corroboration, or the possibility of mistaken

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identification?........................................................................................................................
..14
2.5Failure to Conduct Medical Examination and Non-Cross-Examination of Expert
Witnesses: A Violation of Fair Trial
Principles…………………………………………………………..….…15
2.6 Whether the Confession made by the accused is inadmissible in court?..........................17

ISSUE 3- Whether forcing the accused to participate in the identification parade

constituted a violation of their fundamental right against self-incrimination under Article
20(3) of the Constitution of
Oswalnia?..........................................................................................................18
3.1Whether the identification parade was conducted under coercion, violating the volntary
nature of legal proceedings…………………………………………………..………………...…….20
3.2 TIP as a Corroborative Tool Violates Article 20(3)……………….…………..……...………21
3.3 Whether refusal to participate in the identification parade can be used as an
inference of
guilt?......................................................................................................................................
..22

ISSUE 4- Whether the collection and recording of evidence during investigation suffered
from fatal procedural irregularities that vitiate the accused persons' right to a fair
trial?.....23

4.1 Did the collection of witness testimonies without formal summonses and the delayed
appointment of legal counsel constitute procedural irregularities that violated the accused's
right to a fair
trial?...................................................................................................................25
4.2 Does the expedited nature of a fast-track court compromise the accused’s right to a fair
trial by limiting time for defense preparation and due
process?.............................................28
4.3 Does preventing the accused from cross-examining medical and forensic experts violate
their right to a fair trial? Were there any procedural flaws in how forensic and physical
evidence was collected?..........................................................................................................29

VIII. PRAYER…………………………………………………….……………………………31

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§ Section
¶ Paragraph
AIR All India Reporter
ALL Allahabad
Am Re American Reports
ANR. Another
CAL Calcutta
CrLJ Criminal Law Journal
Fed Rep (2d) Fedreal Reporter, Second Series
HC High Court
HCJAC High Court of Justiciary Appeal Court
INSC Indian Supreme Court
Mad Madras
MWN Madras Weekly Notes
NCT National Capital Territory
NY Supp New York Supplement
ORS Others
R/W Read with
SC Supreme Court
SCALE Supreme court Almanac Law Encyclopedia
SCC Supreme Court Cases
SCR Supreme Court Report
SCW Supreme Court Weekly
TIP Test Identification Parardes
I. LIST OF ABBREVIATION

II. Index of Authorities

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Case Laws

1. Abdul Rehman Antulay and others v. R.S. Naik, AIR 1992 SC 1701
2. Akhtar v. State of Uttar Pradesh, (1999) 6 SCC 60
3. Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230
4. Amit v. State of Maharashtra, (2003) 8 SCC 93
5. Amrit Singh v. State of Punjab, (2006) 12 SCC 79
6. Anil @ Anthony Arikswamy Joseph v. State of Maharashtra, (2014) 4 SCC 69
7. Anokhilal v. State of Madhya Pradesh, (2019) 20 SCC 196
8. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580
9. Babu Ram v. State of Himachal Pradesh, Cr. Appeal No. 322 of 2021, H.P. High Court,
Sept. 26, 2024
10. Bantu alias Naresh Giri v. State of M.P., (2001) 9 SCC 615
11. Bashira v. State of U.P, AIR 1968 SC 1313
12. Bhagwani v. The State Of Madhya Pradesh, Jan. 18, 2022,
13. Bhaskar Virappa Kanchan v. State of Maharashtra, (2003) Bom CR (Cri) 1648
14. Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283
15. Budhsen v. State of U.P., 1970 Crl. L.J. 1149
16. CBI v. Paltan Mallah, (2005) 3 SCC 169
17. Chotkau v. State of Uttar Pradesh, 2022 SCC Online SC 1313
18. Collector of Customs v. Calcutta Motor and Cycle Co., AIR 1958 Cal 682
19. Daryao Singh v. State, AIR 1952 All. 59
20. Dhanraj v. State of Haryana, (2014) 6 SCC 745
21. Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547
22. Farid Ahmed v. The State, AIR 1960 Cal 32
23. Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, (2022) 12 SCC 657
24. Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343
25. Kailash Govindram Rathi v. State of Gujarat, (2008) 1 GLR 750
26. Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445
27. Kanan & Ors. v. State of Kerala, AIR 1979 SC 1127
28. Krishna Mochi v. State of Bihar, (2002) 6 SCC 81
29. Kumudi Lal v. State of Uttar Pradesh, (1999) 4 SCC 108
30. Malay Kumar Ganguly v. Sukumar Mukherjee & Ors., (2009) 9 SCC 221
31. Manoharan v. State, (2019) 7 SCC 716 : (2019) 3 SCC (Cri) 337
32. Manoj Kumar Mahanand v. State of Telangana, 2022 SCC OnLine TS 1234
33. Manoj Pratap Singh v. State of Rajasthan, (2022) 9 SCC 82
34. Matru v. State of U.P., (1971) 2 SCC
35. Mohd. Abdul Hafeez v. State of A.P., (1983) 1 SCC 143
36. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
37. Mulla v. State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150
38. Narayan Singh Amar Singh And Ors. v. Unknown, AIR 1965 MP 225
39. Nandini Satpathy v. P.L. Dani, 1978 SCR (3) 608
40. Parappa and Others v. Bhimappa and Another, ILR 2008 KAR 1840
41. Pawan Kumar @ Monu Mittal v. State of U.P., AIR 2015 SC 2050
42. Peare Lal Show v. The State, AIR 1961 Cal 531

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43. P. Pragasam v. State Represented by Inspector of Police Karaikal Town Police,

Pondicherry, (1981) 1 MLJ 345
44. Raju v. State of Haryana, (2001) 9 SCC 50
45. Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916
46. Rajendra Pralhadrao Wasnik v. State of Maharashtra, [2018] 14 S.C.R. 585
47. Rajesh v. State of Haryana, (2022) 5 SCC 234
48. Rameshbhai Chandubhai Rathod v. The State of Gujarat, (2011) 2 SCC 764
49. Ramesh Kumar v. State of Punjab, (1993) Cri L.J. 1800 SC
50. Ramanand v. State of Himachal Pradesh, (1981) 1 SCC 511
51. Ramkishan v. State, AIR 1955 SC 104
52. Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257
53. Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284
54. Re: Alla Nageswara Rao, Nov. 23, 1954
55. Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498 : (2009) 2 SCC (Cri)
1150
56. Sheikh Hasib Alias Tabarak v. State of Bihar, AIR 1972 SC 283
57. Sharad Birdhichand Sarda v. State of Maharashtra, 1985 SCR (1) 88
58. State v. Nalini, (1999) 5 SCC 253
59. State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808
60. State of Maharashtra v. Mansingh, (2005) 3 SCC 131
61. State of Maharashtra v. Suresh, (2000) 1 SCC 471
62. State of Madhya Pradesh v. Anokhilal, CRRFC No. 6 of 2022, M.P. High Court, Sept.
11, 2023
63. Suraj Pal v. State of Haryana, (1995) 2 SCC 64
64. Surendra Pal Shivbalak v. State of Gujarat, (2005) 3 SCC 127
65. Tulsiram Kanu v. The State, 1951 AIR 51 SC 41
66. Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors, (2004) 4 SCC 15
Statues
1. The Code of Criminal Procedure, 1973, No. 2 Acts of Parliament, 1974 (India).
2. The Protection of Children from Sexual Offences Act, 2012, No. 32 Acts of Parliament,
2012 (India).
3. The Indian Evidence Act, 1872, No. 1 Acts of Parliament, 1872 (India)
Journals and Websites

1. Dr. Kalpna Sharma, "Concept of a Fair Trial", available at https://lc2.du.ac.in/DATA/fair

%20trial%20(Dr.%20Kalpna%20Sharma).pdf (last visited Feb. 9, 2025).
2. Fast Track Courts and the Right to a Fair Trial under Article 21, International Journal of
Law and Legal Research, available at https://www.ijllr.com/post/fast-track-courts-and-
the-right-to-a-fair-trial-under-article-21 (last visited Feb. 9, 2025).
3. Ms. Shivangi Vyas and Mr. Shubham Kejriwal, "Critical Analysis of the Relevancy of
the Medical and Forensic Evidences in the Rape Cases", Manupatra (Feb. 6, 2024, 9:30
AM), available at https://docs.manupatra.in/newsline/articles/Upload/7C915974-C7F3-
4D20-80AC-E6D84FA0344F.pdf.

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4. Mr. Md Jiyauddin, "An Examination of the Acceptability of Expert Testimony under The
Indian Evidence Act", Lawctopus (Feb. 6, 2024, 10:00 AM), available at
https://www.lawctopus.com/academike/an-examination-of-the-acceptability-of-expert-
testimony-under-the-indian-evidence-act/.
5. National Judicial Academy, "Right to Fair Trial, Handout", available at
https://nja.gov.in/Concluded_Programmes/2019-20/P-1163_PPTs/1.Right%20to%20Fair
%20Trial_Handout.pdf (last visited Feb. 9, 2025).
6. Due Process of Law, available at https://www.manupatra.com/roundup/323/Articles/due
%20process%20of%20law.pdf (last visited Feb. 9, 2025).

Books

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III. STATEMENT OF JURISDICTION

It is humbly submitted that the appellants have filed an appeal under Article 132 of The
constitution of India.

132. Appellate jurisdiction of the Supreme Court in appeals from High Courts in certain cases—
(1) An appeal shall lie to the Supreme Court from any judgment, decree, or final order of a High
Court in the territory of India, whether in a civil, criminal or other proceeding, 3 [if the High
Court certifies under article 134A] that the case involves a substantial question of law as to the
interpretation of this Constitution.

(2)* * * * *

(3) Where such a certificate is given, 2 *** any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid has been wrongly decided 2 ***.
Explanation.—For this article, the expression “final order” includes an order deciding an issue
which, if decided in favor of the appellant, would be sufficient for the final disposal of the case.

The Appeallants very humbly submit to the jurisdiction of this Hon’ble Court.

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IV. STATEMENT OF FACT

1. The Republic of Oswalnia has seen rapid urbanization, leading to a rise in slum dwellings.
These areas lack basic safety measures, exposing residents to risks and raising concerns
about the state’s obligation to ensure safety.

2. Mr. James Macllan (45), a construction supervisor, lived in Toscow Slum Complex with his
wife, Sarah (38), and daughter, Misau (12-13 years), in a 10x12 ft. makeshift dwelling. Due
to extreme weather, the family slept on a shared concrete platform (bandstand) outside their
dwelling. On October 23, 2023, the family slept on the bandstand. At 4:30 AM on October
24, Mr. Macllan found Misau missing, with her blanket dragged toward an alley.

3. After searching, Mr. Macllan reported Misau’s disappearance to the Toscow Police Station.
A missing person FIR (Crime No. 591 of 2023) was lodged.

4. Misau’s torn clothing was found near an abandoned construction site. Three days later, her
body was discovered in a wooded area five kilometers away. The autopsy confirmed she
was gang-raped and brutally murdered.

5. CCTV footage and witness statements led to the arrest of William (24), Michael (21), and
Harris (27). Two more accomplices, Neil and Calvin, were later arrested. Misau’s silver
anklets were recovered from Harris.

6. The night watchman identified the accused, who refused to participate, alleging a violation
of their rights. Their plea was rejected.

7. The Sessions Court convicted all five accused based on circumstantial evidence, including
eyewitness testimony, CCTV footage, and the recovered anklets. They were sentenced to
death.

8. The accused appealed to the High Court, alleging procedural irregularities and violations of
their rights. The High Court upheld the verdict. They then appealed to the Supreme Court of
Oswalnia.

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V. ISSUES RAISED

ISSUE 1

1. Whether the Sessions Court justified in awarding the death penalty to the accused under the
provisions of the POCSO Act, 2012?

ISSUE 2

2. Whether the conviction based primarily on circumstantial evidence, including the

identification parade and recovered evidence (silver anklets), meet the standard of proof beyond
reasonable doubt?

ISSUE 3

3. Whether forcing the accused to participate in the identification parade constituted a violation
of their fundamental right against self-incrimination under Article 20(3) of the Constitution of
Oswalnia?

ISSUE 4

4. Whether the collection and recording of evidence during investigation suffered from fatal
procedural irregularities that vitiate the accused persons' right to a fair trial.

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VI. SUMMARY OF ARGUMENT

ISSUE 1. Whether the Sessions Court was justified in awarding death penalty to the
accused under the provisions of POCSO Act, 2012?

It is most humbly submitted before the honorable court that session court was not justified in
awarding death penalty to the accused under the provisions of POCSO Act, 2012 as the present
case doesn’t falls under the category of rarest of rare case and session court has made basic
procedural irregularities while imposing death penalty.

ISSUE 2-Whether the conviction based primarily on circumstantial evidence, including the
identification parade and recovered evidence (silver anklets), meets the standard of proof
beyond a reasonable doubt?

It is most humbly submitted before hon’ble court that respondent relies on flawed circumstantial
evidence, coerced TIP, unreliable eyewitness testimony, and inadmissible confessions. The
recovery of anklets lacks direct proof of guilt, and failure to conduct a medical examination or
cross-examine experts weakens forensic evidence. The conviction fails to meet the standard of
proof beyond reasonable doubt.

ISSUE 3- Whether forcing the accused to participate in the identification parade

constituted a violation of their fundamental right against self-incrimination under Article
20(3) of the Constitution of Oswalnia?

It is humbly submitted before the Court that compelling the accused to participate in the Test
Identification Parade (TIP) violates their fundamental right against self-incrimination under
Article 20(3) of the Constitution of Oswalnia. It guarantees the fundamental right against self-
incrimination, ensuring that no person accused of an offense shall be compelled to be a witness
against themselves. This protection is essential to safeguard the accused from coercive
investigative practices and ensures the fairness of legal proceedings.

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ISSUE 4- Whether the collection and recording of evidence during investigation suffered
from fatal procedural irregularities that vitiate the accused persons' right to a fair trial?

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VII. ARGUMENT ADVANCED

ISSUE 1. Whether the Sessions Court was justified in awarding death penalty to the
accused under the provisions of POCSO Act, 2012?

[¶1.] It is most humbly submitted before the honorable court that session court was not justified
in awarding death penalty to the accused under the provisions of POCSO Act, 2012 as the
present case doesn’t falls under the category of rarest of rare case and session court has made
basic procedural irregularities while imposing death penalty.

1.1 Whether the present case falls under the category of rarest of rare cases or not?

[¶2.] It is humbly submitted before the honorable court that the present case doesn’t fall under
the category of rarest or rare case. The principles for determining the rarest of rare cases were
laid down in the Bachan Singh case and synthesis of the death penalty with the rarest of rare
principles was done in Machi Singh v. State of Punjab.

[¶3.] In Manoharan v. State, (2019), The expression “rarest of rare” literally means rarest even in
the rare i.e., a rarest case of an extreme nature. The expression and the choice of words mean that
punishment by death is an extremely narrow and confined rare exception. Thus, capital
punishment is awarded and invoked only if the facts and material produced by the prosecution
disdainfully and fully establish that the option of imprisonment for life will not suffice and is
wholly disproportionate and therefore the case belongs to the “rarest of rare” category. 1 The facts
and circumstances of the present are far away from the meaning of the rarest of principles.

[¶4.] In Bachan Singh v. State of Punjab, this Court, while upholding the constitutionality of the
death penalty for murder under Section 302 IPC, which deprives the accused of his life, is an
exception to be imposed only in the “rarest of rare” cases, when the first option of imposing
imprisonment for life is foreclosed and for which special reasons must be recorded. 2The
following principles were laid down in this case:

(i) The extreme penalty of death need not be inflicted except in the gravest cases of
extreme culpability.

1
Manoharan v. State, (2019) 7 SCC 716 : (2019) 3 SCC (Cri) 337.
2
Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580.

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[¶5.] Kumudi Lal v. State of Uttar Pradesh was a case of rape and murder of a 14-year-old.
Supreme Court was of the view that the applicability of the rarest of rare principles did not arise
in this case apparently because the crime had no ‘exceptional’ feature.3

[¶6.] In Bantu alias Naresh Giri v. State of M.P., Supreme Court commuted the death sentence to
that of life imprisonment in a case where a girl of 6 years was raped and murdered by a boy of
less than 22 years. Though the Supreme Court found that the act was heinous and required to be
condemned, it could not be said to be one of the rarest of rare categories. The accused was not
required to be eliminated from society.4

[¶7.] In the present case, merely on the basis that rape and murder which not even attract the
gravest cases of extreme culpability, the session court has imposed the death penalty without
considering that the mitigating factor far outweighs the aggravating factor.
(ii) Life imprisonment is the rule and death sentence is an exception. In other words, the
death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of the
crime, and provided, and only provided, the option to impose a sentence of
imprisonment for life cannot be conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant circumstances.

[¶8.] In the State of Maharashtra v. Mansingh, the accused was acquitted by the High Court of
the offense of rape and murder of the victim. In a brief order, the Supreme Court noted this fact
as well as the fact that this was a case of circumstantial evidence, and, therefore, the death
sentence was converted to imprisonment for life to meet the ends of justice.5

[¶9.] Death sentence is disproportionate and inadequate as the fact of present case is not
sufficient and conviction was on the basis of circumstantial evidence. Even if life imprisonment
would be injustice for the accused according to the principle of “life imprisonment is the rule and
death sentence is an exception”, death penalty would be miscarriage of justice in this instant
case.
(iii) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just
3
Kumudi Lal v. State of Uttar Pradesh, (1199) 4 SCC 108.
4
Bantu alias Naresh Giri v. State of M.P, (2001) 9 SCC 615.
5
State of Maharashtra v. Mansingh ,(2005) 3 SCC 131.

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balance has to be struck between the aggravating and the mitigating circumstances
before the option is exercised.
[¶10.] Following circumstances has been recited in the case of Manoj Pratap Singh v. State of
Rajasthan for determining aggravating and mitigating circumstance.6

Aggravating circumstances: (Crime test)

1. The offenses relating to the commission of heinous crimes like murder, rape, armed dacoity,
kidnapping, etc. by the accused with a prior record of conviction for capital felony or offenses
committed by the person having a substantial history of serious assaults and criminal
convictions.

2. The offense was committed while the offender was engaged in the commission of another
serious offense.

[¶11.] In Surendra Pal Shivbalak v. State of Gujarat Supreme Court commuted the death
sentence to that of life imprisonment in a case where the accused aged 36 years had committed
rape and murder of a minor girl. Supreme Court noticed at the time of occurrence, that the
accused had no previous criminal record and held would not be a menace to the society in
future.7

[¶12.] In Amit v. State of Maharashtra, the death penalty awarded to the accused for the rape and
murder of an eleven-year-old child was converted to imprisonment for life for the reason that he
was a young man of 20 years when the incident occurred; he had no prior record of any heinous
crime; and there was no evidence that he would be a danger to society.8

[¶13.] In present case, accused had no criminal antecedents of heinous crime nor have record of
offence committed while the offender was engaged in the commission of another serious offence,
therefore accused are out of these aggravating factors and cannot be given death penalty.

3. The offense was committed to create a fear psychosis in the public at large and was committed
in a public place by a weapon or device which clearly could be hazardous to the life of more than
one person

6
Manoj Pratap Singh v. State of Rajasthan, (2022) 9 SCC 82.
7
In Surendra Pal Shivbalak v. State of Gujarat, (2005) 3 SCC 127.
8
Amit v. State of Maharashtra, (2003) 8 SCC 93.

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[¶14.] In present case there is no such intention to create a fear in public at large or was
committed in public place by a weapon or device which clearly could be hazardous to the life of
more than one person.
4. The offense of murder was committed for ransom or like offenses to receive money or
monetary benefits.
5. Hired killings

[¶15.] In the present case, there is nothing like that the offenses were done to receive money or
monetary benefit or hired killing. Therefore, the present case is out of these factors.

6. If the murder has been committed after previous planning and involves extreme brutality.

7. When murder is committed for a motive which evidences total depravity and meanness.

[¶16.] Amrit Singh v. State of Punjab, a 6 or 7-year-old child was raped and murdered by a 31-
year-old. Supreme Court took the view that though the rape may be brutal and the offense
heinous, “it could have been a momentary lapse” on the part of the accused and was not
premeditated. The victim died “as a consequence of and not because of any overt act” by the
accused. Consequently, the case did not fall in the category of rarest of rare cases.9

[¶17.] Satishbhushan Bariyar v. State of Maharashtra, it was stated that the brutality of how the
crime was committed may not be the sole ground for judging whether the case is one of the
“rarest of rare”. Every murder is perceived as brutal and for murder to be treated as the “rarest
of the rare” case, additional factors required to be considered are the mitigating and aggravating
circumstances featuring around the murder, which would include the intensity of bitterness that
had prevailed and the escalation of simmering thoughts into a thirst for revenge or retaliation. 10

[¶18.] Kumudi Lal v. State of Uttar Pradesh was a case of rape and murder of a 14-year-old.
Supreme Court was of the view that the applicability of the rarest of rare principles did not arise
in this case apparently because the crime had no ‘exceptional’ feature.11

[¶19.] In the present case, there was no motive nor previous planning, the death of the girl was
merely an accidental and momentary lapse. Therefore, it can be concluded that there is no such
aggravating factor that attracts the imposition of the death penalty.
9
Amrit Singh v. State of Punjab, (2006) 12 SCC 79.
10
Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498: (2009) 2 SCC (Cri) 1150
11
Kumudi Lal v. State of Uttar Pradesh, (1199) 4 SCC 108.

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Mitigating Circumstances: (Criminal test)

1. The age of the accused is a relevant consideration but not a determinative factor by itself.

[¶20.] In Rameshbhai Chandubhai Rathod v. The State of Gujarat, Supreme Court commuted the
death sentence to life imprisonment for the accused committing the rape and murder of a girl of 8
years. It was noticed that the accused at the time of the commission of the crime was 27 years
and the possibility of reformation could not be ruled out.12

In the present case, the ages of the accused William is 24, Michael is 21, and Harris 27 are young
and cannot be such an extreme death penalty at such an early age.

2. The chances of the accused not indulging in the commission of the crime again and the
probability of the accused being reformed and rehabilitated.

[¶21.] In Amit v. State of Maharashtra13, the Supreme Court commuted the death sentence to life
imprisonment in a case where the accused aged 28 years had raped and murdered a girl of 11-12
years. Supreme Court noticed that the accused had no previous criminal track record and also
there was no evidence that he would be a danger to the society in future.

[¶22.] In present case, respondent have failed to show that the accused can never be reformed
and It cannot be said that the accused is a hardened criminal, who cannot be reformed. The
possibility of the accused, if given the chance of being reformed, cannot be ruled out.14

3. Where the Court upon proper appreciation of evidence is of the view that the crime was not
committed in a preordained manner that the death resulted in the course of the commission of
another crime and that there was a possibility of it being construed as consequences to the
commission of the primary crime.

[¶23.] Akhtar v. State of Uttar Pradesh was a case of rape and murder of a young girl. The
sentence of death awarded to the accused was converted to one of life imprisonment since he
took advantage of finding the victim alone in a lonely place and her murder was not
premeditated.15

12
Rameshbhai Chandubhai Rathod v. The State of Gujarat, (2011) 2 SCC 764.
13
Amit v. State of Maharashtra (2003) 8 SCC 93.
14
Rabbu v. State of M.P., 2024 SCC OnLine SC 2933
15
Akhtar v. State of Uttar Pradesh ,(1999) 6 SCC 60.

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[¶24.] From the fact of the present case, it is clear that the death was accidental and not
premeditated, Autopsy report clearly states that the cause of death is trauma and injury, therefore
it can be concluded that the crime was not committed in a preordained manner and that the death
resulted in the course of the commission of another crime.

[¶25.] In Mulla v. State of U.P., it was held that the socioeconomic factors relating to the crime
and the criminal should be taken into consideration and may amount to a mitigating factor. 16

[¶26.] In the present case all the accused belong to economically weaker sections as William is
an auto-rickshaw driver, Michael an unemployed youth residing in the slum complex and Harris
is a part-time delivery boy,17 Therefore their economic condition should be considered as a
mitigating factor.

[¶27.] Raju v. State of Haryana was a case in which the Supreme Court took into account three
factors for converting the death sentence of the accused to imprisonment for life for the rape and
murder of an eleven-year-old child. Firstly, the murder was committed without any
premeditation (however, there is no mention of the rape is not premeditated); secondly, the
absence of any criminal record of the accused; and thirdly, there is nothing to show that the
accused could be a grave danger to society.18

[¶28.] In Ramnaresh v. State of Chhattisgarh, the Supreme Court converted the death penalty of
the accused to imprisonment for life as the possibility of the death of the victim being accidental;
and the accused not being a social menace with the possibility of reforming themselves. It was
held, while modifying the sentence that the accused serve a term of imprisonment of 21 years.19

[¶29.] On balancing aggravating and mitigating factors, it can concluded that mitigating factor
clearly outweighs aggravating factors, also on applying principles laid down in the Bachan Singh
case it can be concluded that the imposition of the death penalty is unjustified and the present
case is out of rarest of rare case.

1.2 Whether the session court follow the basic procedure while awarding the death penalty?

16
Mulla v. State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri) 1150.
17
Factual Matrix para 11.
18
Raju v. State of Haryana, (2001) 9 SCC 50.
19
Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257.

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[¶30.] It is humbly submitted before the honorable court that the session court had not followed
the basic procedure while awarding the death penalty. One of the important procedures while
granting the death penalty is to give a special reason for such punishment. The right to have a
fair trial and cross-examination of witnesses are some basic procedures that are required to be
followed. Session court also convicted the accused based on the confession made before a police
officer.

[¶31.] Section 354(3) states that when the conviction is for an offense punishable with death or,
in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special
reasons for such sentence.20 In Rajendra Prasad v State of Uttar Pradesh, the Court recognized
the arbitrary nature of sentencing in death penalty cases while defining the ambit of special
reasons within Section 354(3) of the Criminal Procedure Code 1973 (“CrPC”) 21.In the present
case also court has imposed the death penalty arbitrarily without stating the special reason.

[¶32.] In Zahira Habibullah Sheikh and ors. v/s. The state of Gujarat and Ors, the Supreme
Court of India stated that "everyone has an innate right to be treated fairly in a criminal
prosecution."22Hon'ble Apex Court held that a "fair trial" includes truthful and right opportunities
allowed by way of law to prove her innocence. 23In the present case, the appointment of counsel
was done a day before the commencement of the hearing. 24 This curtails opportunities to prove
their innocence as there is no time for preparation of the defense, also defense has asked for a
cross-examination of the medical expert and DNA report expert, but both appear for the same. 25
and later without examination session court delivered a guilty verdict, so it against the principle
of right to have fair trial guaranteed under Article 21.

[¶33.] In the present case, Neil and Calvin were also given the death penalty merely based on a
confession given in front of a police officer. 26 Which has no evidentiary value under Section 25 27

20
The Code of Criminal Procedure, 1973, § 354(3), No. 02, Acts of Parliament, 1974 India).
21
Rajendra Prasad v State of Uttar Pradesh, AIR 1979 SC 916.
22
Zahira Habibullah Sheikh and ors. Vs. State of Gujarat and ors, (2006) 3 SCC 374
23
Mrs. Kalyani Baskar vs Mrs. M. S. Sampoornam, (2007) 2 SCC 258.
24
Factual Matrix Para 16
25
Factual Matrix Para 17
26
Factual matrix Para 12
27
The Indian Evidence Act,1872, § 25, No. 01, Acts of Parliament, 1872 (India).

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Of Evidence Act. Also it is well well-settled principle that statement made by an accused before
a police official which amount to confession is barred under Sec.25 of the Indian Evidence Act. 28

[¶34.] In summary, it can be concluded that session court has not followed the basic procedure
while imposing death penalty , also the present case is not rarest of rare case as mitigating factor
far outweighs aggravating factor, Hence the Sessions Court was not justified in awarding death
penalty to the accused under the provisions of POCSO Act, 2012.

ISSUE 2. Whether the conviction based primarily on circumstantial evidence, including the
identification parade and recovered evidence (silver anklets), meet the standard of proof
beyond reasonable doubt?

[¶35.] It is most humbly submitted before hon’ble court that respondent relies on flawed
circumstantial evidence, coerced TIP, unreliable eyewitness testimony, and inadmissible
confessions. The recovery of anklets lacks direct proof of guilt, and failure to conduct a medical
examination or cross-examine experts weakens forensic evidence. The conviction fails to meet
the standard of proof beyond reasonable doubt.

2.1. Whether circumstantial evidence is reliable enough to sustain a conviction beyond

reasonable doubt?

It is humbly submitted before this Hon’ble Court that the case is built primarily on
circumstantial. When a case based on circumstantial evidence must prove beyond reasonable
ground to establish the guilt of the accused. There must be no break in proving the chain of
circumstantial evidence.

The circumstantial evidence presented by the respondant is unreliable, incomplete, and

insufficient to establish the guilt of the accused beyond a reasonable doubt. In Sharad
Birdhichand Sarda v. State of Maharashtra 29, the Supreme Court laid down the five golden
principles for convicting an accused based on circumstantial evidence, emphasizing that

(1) the circumstances must be firmly established,

(2) they must unerringly point toward the guilt of the accused,

(3) they must exclude every other possible hypothesis except guilt,
28
Pawan Kumar @ Monu Mittal v. State of U.P., AIR 2015 SC 2050.
29
Sharad Birdhichand Sarda v. State of Maharashtra 1985 SCR (1) 88.

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(4) the chain of evidence must be complete, and

(5) the circumstances must be inconsistent with innocence.

Similarly in Hanumant Govind Nargundkar v. State of M.P. 30, the Court held that circumstantial
evidence must be so conclusive as to exclude every reasonable hypothesis except the guilt of the
accused.

Break in the chain of circumstantial evidence.

Misau was last seen at approximately 1:15 AM by Mr. Daniel, who testified that the family was
asleep. Mr. Macllan noticed her missing at 4:30 AM. This leaves a 3-hour and 15-minute
window during which the crime could have occurred. However, there is no direct evidence
linking the accused to the crime during this specific time frame.

The CCTV footage captures the accused near the crime scene, but it does not establish their
presence at the exact time of the crime. The footage could merely show their presence in the
vicinity, which is not uncommon given that they reside in the same slum complex.

Mr. David, the night watchman saw three young men lurking near the bandstand at 3:45 AM.
David positively identified William, Michael, and Harris as individuals he had previously
observed in proximity to his residence before the incident not in proximity to the crime scene
further, his identification during the parade occurred after the accused were already in custody,
raising questions about the reliability of his testimony.

While the silver anklets were recovered from Harris's possession, does not conclusively prove
Harris's and other accused involvement in the crime.

The discovery of Misau's torn clothing near the abandoned construction site does not directly
implicate the accused. There is no forensic evidence (e.g., DNA, fingerprints) linking the
accused to the clothing or the site.

Mr. Sammy's testimony that he saw three men carrying a small bundle at approximately 4:00 AM
is inconclusive. He did not identify the accused at the time, and his description of the bundle
does not definitively link it to Misau.

30
Hanumant Govind Nargundkar v. State of M.P AIR 1952 SC 343.

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The respondant has failed to prove the guilt of the accused beyond a reasonable doubt.

2.5 Whether the Identification Parade was Admissible and Credible?

It is humbly submitted before this Hon’ble Court that the Test Identification Parade (TIP)
conducted in the present case suffers from serious procedural and legal infirmities, rendering it
unreliable and inadmissible as evidence.

TIP are governed by Section 54A31 CrPC, 1973, provides for the holding of TIPs, which are
intended to test the memory and reliability of witnesses in identifying the accused.

Furthermore, the sanctity of TIPs is governed by Section 9 32 Of the Indian Evidence Act, 1872.
The Supreme Court, in Sheikh Hasib Alias Tabarak v. State of Bihar 33, clarified that TIPs are
investigative tools and cannot independently form the basis for conviction.

In the present case, the TIP conducted suffers from serious procedural and legal infirmities that
undermine its reliability and admissibility. Firstly, there was an unjustified delay in conducting
the TIP, which was held long after the FIR was registered and after the alleged confession and
recovery of the silver anklet. TIP was conducted when the accused was already in the custody of
the police. This delay is fatal to the reliability of the identification, as it increases the likelihood
of memory fading or being influenced by external factors. In Narayan Singh Amar Singh And
Ors. v. Unknown34 The Court emphasized that TIPs must be conducted promptly to ensure
that the witness’s memory is fresh and untainted. Any delay without a convincing explanation
renders the TIP unreliable.

Moreover, the accused were coerced into participating in the TIP, which violates their
fundamental rights under Article 20(3)35 Of the Constitution. The refusal of the accused to
participate in the TIP cannot be held against them, as it is their right to protect themselves from
self-incrimination. In Rajesh v. State of Haryana 36 (2021), the Supreme Court held that an
accused’s refusal to undergo a TIP does not imply guilt, especially when there are doubts about
the reliability of the prosecution’s case.

31
The Criminal procedure code, 1973 § 9, No. 2, Acts of Parliament, 1974 (India).
32
Indian Evidence Act, 1872 § 9, No. 1, Acts of Parliament, 1872 (India).
33
Sheikh Hasib Alias Tabarak v. State of Bihar AIR 1972 SC 283.
34
Narayan Singh Amar Singh And Ors. v. Unknown AIR1965 MP 225.
35
Indian Constitution, art. 20, cl.3.
36
Rajesh v. State of Haryana (2022) 5 SCC 234.

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In the present case, the respondant heavily relies on the testimony of Mr. David, the night
watchman, who claimed to have seen three young men near the bandstand area at 3:45 AM. 37
However, the credibility of his observation is questionable for several reasons:

o Mr. David admitted to regularly seeing similar movements in the slum, indicating that
such activity was not unusual.

o His failure to raise an alarm or report his suspicion immediately casts doubt on the
seriousness of his observations.

o During the Test Identification Parade (TIP), Mr. David identified William, Michael, and
Harris not as the individuals lurking near the bandstand, but as those he had previously
seen near his residence.

o This distinction is crucial, as it weakens the direct link between the accused and the crime
scene at the relevant time.

o The individuals identified by Mr. David were residents of the same locality, raising
concerns that his identification was not based on a fresh recollection but on prior
familiarity. Budhsen vs. State of U.P. 38 it was held that “They are generally held during the
course of investigation if the primary object enabling the witnesses to identify persons
concerned in the offence, who were not previously known to them. Ramesh Kumar v.
State of Punjab39 (1993) Cri L.J. 1800 (SC) it was held that, there is no need for
identification parade where the witnesses already knew who the assailants were.

o Given Mr. David’s age (60 years), there is a higher possibility of memory fade, further
questioning the reliability of his identification. Ramanand v. State of Himachal Pradesh 40,
(1981) 1 SCC 511, held that identification of accused persons at night without proper
lighting is highly unreliable. Kanan & Ors. v. State of Kerala 41, AIR 1979 SC 1127, the
Court ruled that poor lighting conditions severely compromise a witness’s ability to
observe and recall details, making such testimony inherently unreliable.

37
Factual matrix para 6.
38
Budhsen vs. State of U.P. 1970 Crl. L.J. 1149.
39
Ramesh Kumar v. State of Punjab (1993) Cri L.J. 1800 SC.
40
Ramanand v. State of Himachal Pradesh (1981) 1 SCC 511.
41
Kanan & Ors. v. State of Kerala AIR 1979 SC 1127.

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Therefore, it is respectfully urged that the TIP conducted in this case is unreliable, inadmissible,
and tainted by procedural and legal infirmities.

2.3 Whether the recovery of silver anklets from Harris establishes the guilt of all accused or
merely indicates possession without proving direct involvement in the crime?

It is humbly submitted before this Hon’ble Court that the conviction of the appellant, based on
the recovery of stolen articles, suffers from serious legal infirmities and does not satisfy the
standard of proof beyond reasonable doubt. The respondent has failed to establish a direct link
between all accused in the alleged crime, and mere possession of stolen property cannot be the
sole basis for conviction, particularly for serious offenses such as murder and robbery. The
recovery of the anklets from Harris possession does not establish a direct link between all the
accused and the crime of rape and murder. There is no evidence to show how the anklets came
into Harris’s possession or whether they were planted.

The recovery of stolen property alone is not sufficient to establish the guilt of the accused for a
crime such as murder or rape. The Hon’ble Supreme Court, in Dhanraj v. State of Haryana42 held
that the recovery of stolen property merely establishes possession and does not prove that the
accused committed the murder or other serious offenses. The Court emphasized
that circumstantial evidence must form a complete chain that excludes every hypothesis of
innocence.

In Tulsiram Kanu v. The State43 (1951 AIR 51 SC 41), the Supreme Court held that mere
possession of stolen property is not sufficient to convict a person for a more serious offense
unless other corroborative evidence establishes a direct link to the crime. The failure of the
accused to prove ownership of the stolen property does not shift the burden of proof to the
defense.

The identification and recovery of the anklets in the custody of the police is hit by Section 16244
of the CrPC, which renders statements made to the police during investigation inadmissible as
evidence. In Khabiruddin v. Emperor,45 the Court held that the identification of stolen property in

42
Dhanraj v. State of Haryana (2014) 6 SCC 745.
43
Tulsiram Kanu v. The State 1951 AIR 51 SC 41.
44
The Criminal procedure code, 1973 § 9, No. 2, Acts of Parliament, 1974 (India).
45
Khabiruddin v. Emperor AIR 1925 Cal 484.

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the presence of the police amounts to a statement made to the police, which is inadmissible under
Section 162.

The Hon’ble Supreme Court, in CBI v. Paltan Mallah, 46 discussed the 94th Law Commission
Report and held that evidence collected illegally or in violation of procedural law will not be
reliable. The Court emphasized that the prosecution must prove the chain of custody of the
recovered property to establish its reliability.

The Allahabad High Court, in Daryao Singh v. State, 47 AIR 1952 All. 59, followed the Calcutta
High Court's ruling that identification of stolen articles by witnesses during investigation, if
conveyed to the police, amounts to a statement barred by Section 162 CrPC. The distinction
made by the courts is crucial:

 The mental act of identification is not barred.

 However, communicating the identification to a police officer, whether orally, by
gestures, or by pointing out the articles, is inadmissible in evidence.

Moreover, respondent has failed to prove that the accused/Harris had exclusive possession of
the recovered articles. Mere recovery of stolen goods from a locality shared by multiple
individuals does not prove that the accused had possession or knowledge of those items. the
burden of proving ownership of recovered articles does not rest on the accused. The failure of the
accused to claim ownership does not aid the prosecution in proving guilt.48

Therefore, the recovery of the silver anklets from the Harris possession, in the absence of any
direct evidence linking the all accused to the crime, is insufficient to sustain a conviction. The
respondent has failed to establish the guilt of the appellant beyond a reasonable doubt.

2.4Whether the credibility of eyewitness testimony can be challenged based on inconsistencies,

lack of independent corroboration, or the possibility of mistaken identification?

It is humbly submitted before this Hon’ble Court that the prosecution’s reliance on the
eyewitness testimony of Mr. Sammy is legally and factually flawed. The testimony suffers from
vagueness, poor visibility conditions, lack of corroboration, and absence of a prior TIP all of

46
CBI v. Paltan Mallah (2005) 3 SCC 169.
47
Daryao Singh v. State AIR 1952 All. 59.
48
Tulsiram Kanu v. The State 1951 AIR 51 SC 41.

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which render it unreliable and inadmissible as substantive evidence. Courts have consistently
held that such uncorroborated and weak identification evidence cannot sustain a conviction,
especially in cases based on circumstantial evidence.

The respondent’s case relies heavily on the eyewitness account of Mr. Sammy, who allegedly
saw three men carrying a bundle resembling a child at 4:00 AM. 49 However, several factors cast
serious doubt on the credibility of his testimony. Firstly, Mr. Sammy failed to provide specific
identifying features of the accused, making his testimony ambiguous and unreliable. In Mohd.
Abdul Hafeez v. State of A.P. 50 the Supreme Court held that an eyewitness account lacking a
precise description of the accused has no evidentiary value. Similarly, in Binay Kumar Singh v.
State of Bihar51 the Court ruled that it is unsafe to rely on general and vague testimony without
specific reference to the identity of the individuals involved.

Secondly, the Mr. Sammy (35), who saw three men carrying what appeared to be a small bundle
towards the construction site at approximately 4:00 AM in the early morning hours, where low
visibility due to insufficient lighting significantly impairs a witness’s ability to recognize
individuals. In Kanan & Ors. v. State of Kerala 52, the Court ruled that poor lighting conditions
severely compromise a witness’s ability to observe and recall details, making such testimony
inherently unreliable.

Thirdly, no independent witnesses or additional evidence support Mr. Sammy’s version of

events. Courts have repeatedly rejected convictions based solely on uncorroborated eyewitness
accounts. in Krishna Mochi v. State of Bihar 53, the Court emphasized that eyewitness testimony
must be free from doubt and supported by other evidence to satisfy the standard of proof beyond
a reasonable doubt. There is no other corroborative piece of evidence connecting the said
accused with the crime. Hence, he is required to be given benefit of doubt.

Another significant omission is the failure to conduct a Test Identification Parade (TIP).
Since the accused were previously unknown to Mr. Sammy, a TIP was necessary to test his
ability to recall and recognize the suspects. In Ravi Kapur v. State of Rajasthan 54, the
49
Factual matrix para 14.
50
Mohd. Abdul Hafeez v. State of A.P. (1983) 1 SCC 143.
51
Binay Kumar Singh v. State of Bihar (1997) 1 SCC 283.
52
Kanan & Ors. v. State of Kerala AIR 1979 SC 1127.
53
Krishna Mochi v. State of Bihar (2002) 6 SCC 81.
54
Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284.

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Supreme Court ruled that when the accused are strangers to the witness, the absence of a
TIP casts serious doubt on the reliability of in-court identification. if a witness identifies an
accused for the first time in court without a prior TIP, the testimony is wholly unreliable.55.

Applying these legal principles to the present case, the eyewitness testimony of Mr. Sammy is
unreliable and fails to meet the standard of proof beyond reasonable doubt. As his description of
the accused is vague, making it impossible to establish their identity. The poor lighting
conditions at 4:00 AM severely impacted visibility, raising doubts about the accuracy of his
observation. His testimony is uncorroborated by any independent witness. No prior Test
Identification Parade (TIP) was conducted, making his in-court identification questionable. The
risk of misidentification is high, given the lack of procedural safeguards and the psychological
factors affecting human memory. Therefore, the testimony of Mr. Sammy fails to proven the
identity of the accused beyond reasonable doubt.

2.5Failure to Conduct Medical Examination and Non-Cross-Examination of Expert

Witnesses: A Violation of Fair Trial Principles

It is humbly submitted before this Hon’ble Court that the conviction of the appellant is vitiated
by two major procedural lapses: (i) Failure to conduct a medical examination of the accused, and
(ii) Failure to present critical expert witnesses for cross-examination..

Courts have consistently held that scientific and forensic evidence plays a crucial role in sexual
offense cases, especially where the victim is deceased and the case is based on circumstantial
evidence.56 Under Sections 53A57 of the Code of Criminal Procedure (CrPC), 1973, the
respondent has a statutory obligation to conduct a medical examination of the accused in cases of
sexual offenses. The purpose of such an examination is to collect scientific and biological
evidence that can either corroborate or refute the allegations. The absence of a medical
examination means that there is no forensic link between the accused and the alleged crime. 58

55
Kanan & Ors. v. State of Kerala AIR 1979 SC 1127.
56
Anokhilal vs state of Madhya Pradesh 2019 INSC 1399.
57
The Criminal procedure code, 1973 § 53A, No. 2, Acts of Parliament, 1974 (India).
58
Ms. Shivangi Vyas and Mr. Shubham Kejriwal, CRITICAL ANALYSIS OF THE RELEVANCY OF THE
MEDICAL AND FORENSIC EVIDENCES IN THE RAPE CASES, Manupatra (Feb. 6, 2024, 9.30 AM)
https://docs.manupatra.in/newsline/articles/Upload/7C915974-C7F3-4D20-80AC-E6D84FA0344F.pdf

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The Hon’ble Supreme Court in Chotkau v. State of Uttar Pradesh 59 categorically held that failure
to conduct a medical examination of the accused in a rape case, particularly where the victim is
deceased and the case relies on circumstantial evidence, is fatal to the prosecution’s case. The
Court emphasized that medical evidence assumes great importance in such cases, and its absence
creates a gaping hole in the prosecution’s version, making it unsafe to convict the accused.

2.51 Failure to Produce Expert Witnesses for Cross-Examination

In addition to the absence of a medical examination, the respondent further weakened its case by
failing to present the medical and forensic experts for cross-examination. Courts have repeatedly
held that expert testimony must be subjected to judicial scrutiny through cross-examination,
failing which the probative value of such evidence is significantly diminished.60

The Hon’ble Supreme Court in Malay Kumar Ganguly v. Sukumar Mukherjee & Ors. 61 held that
a document becomes inadmissible unless its author is examined in court, and its contents cannot
be treated as proved unless the expert is available for cross-examination. The same principle was
reiterated in Manoj Kumar Mahanand v. State of Telangana 62, where the court observed that the
prosecution’s failure to examine the doctor who issued a medical report was a critical lapse. The
doctor’s testimony was essential to:

 Authenticate the medical report.

 Explain the observations and conclusions.

 Allow the accused to cross-examine the doctor, a fundamental right under the principle of
natural justice.

The Supreme Court in Ramesh Chandra Agrawal v. Regency Hospital Ltd. 63 held that cross-
examination of expert witnesses is essential to establish the credibility of forensic evidence.

59
Chotkau v. State of Uttar Pradesh 2022 SCC Online SC 1313.
60
Mr Md Jiyauddin , An Examination of the Acceptability of Expert Testimony under The Indian Evidence Act, Law
octopus (Feb. 6, 2024, 10.AM AM) https://www.lawctopus.com/academike/an-examination-of-the-acceptability-of-
expert-testimony-under-the-indian-evidence-act/
61
Malay Kumar Ganguly v. Sukumar Mukherjee & Ors. (2009) 9 SCC 221.
62
Manoj Kumar Mahanand v. State of Telangana 2022 SCC OnLine TS 1234.
63
Ramesh Chandra Agrawal v. Regency Hospital Ltd. (2009) 9 SCC 709

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The failure to conduct a medical examination and non-examination of experts amounts to

procedural irregularity, violating the fundamental right to a fair trial under Article 21 64 of the
Constitution.

Similarly, the Supreme Court in Rajendra Pralhadrao Wasnik v. State of Maharashtra 65 observed
that while the absence of DNA evidence does not automatically exonerate the accused, the
prosecution’s failure to produce such evidence, especially when facilities are available, leads to
adverse consequences for the prosecution. The absence of expert testimony further reinforces the
presumption of innocence in favor of the accused.

Therefore, Failure to Conduct Medical Examination and Non-Cross-Examination of Expert

Witnesses vitiate the conviction of all accused.

2.6 Whether the Confession made by the accused is inadmissible in court?

It is humbly submitted before this Hon’ble Court that the confession of the accused in the present
case is inadmissible under Sections 25 66 and 2667 of the Indian Evidence Act, 1872, as it was
obtained in police custody and was not made in the immediate presence of a Magistrate.

Section 25 of the Indian Evidence Act explicitly states that no confession made to a police officer
shall be proved against a person accused of an offense. Similarly, Section 26 bars the
admissibility of confessions made while in police custody, unless recorded in the immediate
presence of a Magistrate. In P. Pragasam v. State68, the Hon’ble Court held that a confession that
does not lead to recovery is inadmissible in law, and a charge sheet based solely on such a
confession has no legal basis and is liable to be quashed. Applying this principle, the appellant
submits that the confession extracted in police custody without a Magistrate’s presence is
inadmissible, and any charge based on such an admission is unsustainable.

Similarly, in Dipakbhai Jagdishchandra Patel v. State of Gujarat 69 (2019), the Supreme Court
reiterated that statements made in police custody cannot form the sole basis of conviction unless

64
Indian Constitution, art.21.
65
Rajendra Pralhadrao Wasnik v. State of Maharashtra [2018] 14 S.C.R. 585.
66
Indian Evidence Act, 1872 § 25, No. 1, Acts of Parliament, 1872 (India).
67
Indian Evidence Act, 1872 § 26, No. 1, Acts of Parliament, 1872 (India).
68
P. Pragasam v. State Represented by inspector of Police Karaikal Town Police, Pondicheny. (1981) 1 MLJ 345.
69
Dipakbhai Jagdishchandra Patel v. State of Gujarat (2019) 16 SCC 547.

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corroborated by independent evidence. In the present case, no such corroboration exists, making
the confession legally worthless.

In Aloke Nath Dutta v. State of West Bengal 70 held that conviction cannot be based solely on the
confession of a co-accused in the absence of substantive evidence as it is inadmissible and
insufficient to prove guilt beyond a reasonable doubt. In the present case, the prosecution’s case
against the two appellant Neil and calvin are built solely on the alleged confession of co-accused
individuals, and there is no independent corroborative evidence linking the appellant to the
crime. As held in State v. Nalini71, a co-accused’s confession does not have evidentiary value
unless it is corroborated by substantial independent evidence. Thus, the charge against the
appellant collapses due to lack of admissible and substantive evidence.

Additionally, it is respectfully submitted that statements recorded under Section 161 72 of the
Criminal Procedure Code (CrPC) cannot be used as evidence against the accused, except to
contradict prosecution witnesses during trial. In Kailash Govindram Rathi v. State of Gujarat 73
(2007), the Gujarat High Court held that statements of co-accused recorded under Section 161
CrPC are inadmissible in evidence and cannot form the basis of conviction. Extra-judicial
confession was termed as “weak” without any other facts and evidence present to back up the
claim that was made in the confession under section 27 of the evidence

Therefore, it is respectfully submitted that the prosecution’s case against the appellant Neil and
Calvin is built on inadmissible and unreliable evidence confession.

3. Whether compelling the accused to participate in the identification parade amounts to

testimonial compulsion under Article 20(3)

It is humbly submitted before the Court that compelling the accused to participate in the Test
Identification Parade (TIP) violates their fundamental right against self-incrimination under
Article 20(3)74 of the Constitution of Oswalnia. It guarantees the fundamental right against self-
incrimination, ensuring that no person accused of an offense shall be compelled to be a witness

70
Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230.
71
State v. Nalini (1999) 5 SCC 253
72
The Criminal procedure code, 1973 § 161, No. 2, Acts of Parliament, 1974 (India).
73
Kailash Govindram Rathi v. State of Gujarat (2008)1GLR750.
74
India Constitution. art. 20, cl 3.

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against themselves. This protection is essential to safeguard the accused from coercive
investigative practices and ensures the fairness of legal proceedings.

The Supreme Court, in M.P. Sharma v. Satish Chandra75 held that the protection against self-
incrimination applies broadly to all forms of testimonial compulsion, not just oral testimony,
including documents, physical objects, and bodily gestures. Thus, the forced participation of the
accused in the TIP amounts to testimonial compulsion as it actively contributes to proving their
identity and involvement in the crime. The mere act of being placed in a lineup for identification
is a positive volitional evidentiary act, which, if compelled, violates Article 20(3).

The concept of testimonial compulsion was further clarified in State of Bombay v. Kathi Kalu
Oghad,76 where the Court held that compulsion includes both physical and psychological
coercion. If an accused is forced to perform an act that provides evidence against themselves,
such as participating in a TIP, it amounts to testimonial compulsion and is unconstitutional.

Further, in Farid Ahmed v. The State77 the Court emphasized the distinction between passive
submission and a positive volitional evidentiary act. the Court held that compelling an accused to
perform any act that actively contributes to evidence against them amounts to testimonial
compulsion. If evidence can only be procured through an accused’s active participation,
compelling them to perform that act violates Article 20(3).

In present case the accused’s forced presence in the TIP directly aided the prosecution in linking
them to the crime. Their participation was not passive but an affirmative evidentiary act, as their
identification was based solely on their presence in the lineup.

As held in Ramkishan v. State78, bodily gestures or acts of identification in a TIP amount to

making statements to the police, violating Article 20(3).

Thus, forcing them to participate in TIP would be unconstitutional.

3.1Whether the identification parade was conducted under coercion, violating the voluntary
nature of legal proceedings

75
M.P. Sharma v. Satish Chandra AIR 1954 SC 300
76
State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10.
77
Farid Ahmed v. The State AIR 1960 Cal 32.
78
Ramkishan v. State AIR 1955 SC 104.

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 MEMORIAL on behalf of APPELLANT

It is humbly submitted that the Test Identification Parade (TIP) in the present case was conducted
under coercion, which undermines its evidentiary value and renders it unreliable. The Supreme
Court in Bhaskar Virappa Kanchan v. State of Maharashtra 79 held that TIPs must be conducted
in a fair and impartial manner, ensuring that there is no coercion or undue influence on the
accused.

The key procedural safeguards for conducting a fair TIP include:80

1. The TIP must be conducted under the supervision of a Magistrate, ensuring that the
police do not interfere in the process.

2. Objections raised by the accused at the time of the TIP must be recorded and considered.

3. The accused must not be shown to the witnesses prior to the TIP, preventing suggestive
identification.

However, in the present case, these essential safeguards were completely disregarded as the
accused were forced to participate, and their objections were not recorded, violating the principle
of procedural fairness.

In Nandini Satpathy v. P.L. Dani,81 the Supreme Court expanded the scope of compulsion to
include psychological coercion, such as:

 Environmental pressure
 Intimidatory tactics that wear down the accused’s resistance.
 Overbearing and unfair police methods used to force participation.
In Krishnarayana Babu v. State82 the Court held that if an accused objects a TIP, the Magistrate
must record it and ensure procedural fairness. In this case, the accused’s objections were ignored,
and they were compelled to participate under police coercion, making their identification
involuntary. The absence of judicial oversight further allowed manipulation of the identification
process, making it unreliable.

79
Bhaskar Virappa Kanchan v. State of Maharashtra (2003) Bom CR (Cri) 1648.
80

81
Nandini Satpathy v. P.L. Dani 1978 SCR (3) 608.
82
Krishnarayana Babu v. State 1996 Cri L.J. 4484 Mad.

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 MEMORIAL on behalf of APPELLANT

Therefore, TIP in this case was conducted under coercion, violating the voluntary nature of legal
proceedings.

3.2 TIP as a Corroborative Tool Violates Article 20(3)

It is respectfully submitted before this Hon’ble Court that the Test Identification Parade (TIP), is
used as corroborative evidence and when the accused is forcefully compelled to participate in the
TIP constitutes a direct violation of this constitutional guarantee under article 20(3).

Under Section 983 of the Indian Evidence Act, 1872 (IEA), In Ramkishan v. State of Bombay84 the
Supreme Court held that during an investigation, the police may conduct identification parades to
help witnesses recognize either the property involved in the offence or the individuals accused of
committing the crime. The primary purpose of a TIP is to assist the investigating agency in
verifying whether their inquiry is progressing in the right direction, particularly when the
accused is unknown to the witness.85

In State of Maharashtra v. Suresh86 further clarified that TIPs are meant for the purpose of
investigation and cannot be the sole basis for conviction, reinforcing that they must be conducted
in a fair and impartial manner to maintain their evidentiary value. That means accused should not
compelled to participate in TIP.

In Farid Ahmed v. The State 87 the Court distinguished between passive submission and a positive
volitional evidentiary act, holding that compelling an accused to actively participate in the
evidentiary process constitutes testimonial compulsion, which is barred under Article 20(3).

However, in the present case, the accused’s forced presence in the Test Identification Parade
(TIP) directly assisted the prosecution in linking them to the crime. Their participation was not
passive but an affirmative evidentiary act, as their identification was solely based on their
compelled presence in the lineup. Since self-incrimination under Article 20(3) extends beyond
verbal statements to include bodily gestures or physical presence in an identification process, 88

83
Indian Evidence Act, 1872, § 9, No. 1, Acts of Parliament, 1872 (India).
84
Ramkishan v. State of Bombay [1955] 1 S.C.R. 903.
85
Matru v. State of U.P (1971)2 SCC.
86
State of Maharashtra v. Suresh (2000) 1 SCC 471.
87
In Farid Ahmed v. The State AIR 1960 Cal 32.
88
Peare Lal Show vs The State AIR1961CAL531.

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the coerced TIP participation amounts to testimonial compulsion and thus violates their
constitutional rights.

This principle is reinforced by the ruling in State of Bombay v. Kathi Kalu Oghad 89 (AIR 1961
SC 1808), where the Hon’ble Supreme Court held that "compulsion" under Article 20(3)
includes duress—both physical and psychological—that forces an accused to provide self-
incriminating evidence. Applying this to the present case, the forced participation of the accused
in TIP was not voluntary but a result of police coercion, making it a clear violation of Article
20(3).

Therefore, Forcing the accused to participate in TIP violated Article 20(3) and rendered the TIP
inadmissible as evidence.

3.4 Whether refusal to participate in the identification parade can be used as an inference of
guilt?

It is respectfully submitted that the refusal of the accused to participate in the Test Identification
Parade (TIP) should not be construed as an inference of guilt. Article 20(3) of the Constitution
guarantees an absolute right against self-incrimination, which includes the right to refuse any act
that may contribute to one's own prosecution.

Exercising this right cannot be held against the accused, as any form of compelled participation
in an investigative procedure that aids in proving guilt would amount to testimonial
compulsion.90

The Supreme Court, in Suraj Pal v. State of Haryana91 explicitly held that an accused has the
right to refuse participation in a TIP, and such refusal cannot be interpreted as an admission of
guilt. The judgment underscores the principle that an individual cannot be forced to become a
witness against themselves, and their non-cooperation with investigative measures such as a TIP
should not be used against them. Additionally, in Collector of Customs v. Calcutta Motor and
Cycle Co.,92 the Supreme Court clarified that the protection under Article 20(3) applies as soon as
a person is named in an FIR or identified as a suspect. The Court held that the prosecution cannot

89
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.
90
Miranda v. Arizona, 384 U.S. 436 (1966).
91
Suraj Pal v. State of Haryana (1995) 2 SCC 64
92
Collector of Customs v. Calcutta Motor and Cycle Co., AIR1958CAL682.

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force an accused to provide self-incriminating evidence, and any refusal to participate in such
processes cannot be used as evidence of guilt.

Therefore, it is respectfully submitted that the accused’s refusal to participate in the TIP cannot
be used as an inference of guilt, as it is a valid constitutional right under Article 20(3).

ISSUE 4. Whether the collection and recording of evidence during investigation suffered
from fatal procedural irregularities that vitiate the accused persons' right to a fair trial.

The right to a fair trial aims to ensure the administration of justice and is a fundamental
guarantee of human rights and the rule of law. A fair trial includes fair and proper opportunity, as
Article 14 of the International Covenant on Civil and Political Rights mentions.93:

 Everyone charged with a criminal offense has the right to be presumed innocent until
proven guilty as per law.94.
 To have adequate time and facilities for the preparation of his defense and to
communicate with his counsel.95.
 To be informed if he does not have any legal assistance his right to have legal assistance.

In the landmark judgment of Maneka Gandhi v. Union of India, the Supreme Court held that the
right to life and personal liberty includes the right to live with dignity. The court also emphasized
that the Procedure established by law must be fair, just, and reasonable.96.

Principles of Fair Trial include the presumption of innocence, the Right to free legality, and the
right against self-incrimination, etc. Article 6 of the European Convention on Human Rights
provides minimum rights, adequate time and facilities to prepare their defense, access to legal
representation, right to examine witnesses against them or have examined the right to free
assistance of an interpreter to everyone charged with a criminal offense97.

93
National Judicial Academy, Right to Fair Trial, Handout, https://nja.gov.in/Concluded_Programmes/2019-20/P-
1163_PPTs/1.Right%20to%20Fair%20Trial_Handout.pdf. (last visited Feb. 9, 2025).
94
National Judicial Academy, Right to Fair Trial, Handout, https://nja.gov.in/Concluded_Programmes/2019-20/P-
1163_PPTs/1.Right%20to%20Fair%20Trial_Handout.pdf.(last visited Feb. 9, 2025).
95
National Judicial Academy, Right to Fair Trial, available at https://nja.gov.in/Concluded_Programmes/2019-20/P-
1163_PPTs/1.Right%20to%20Fair%20Trial_Handout.pdf.(last visited Feb. 9, 2025).
96
Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 S.C.C. 158, available at
https://indiankanoon.org/doc/1199182/.(last visited Feb. 9, 2025).
97
Dr. Kalpna Sharma, Concept of a Fair Trial, available at https://lc2.du.ac.in/DATA/fair%20trial%20(Dr.
%20Kalpna%20Sharma).pdf.(last visited Feb. 9, 2025).

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 MEMORIAL on behalf of APPELLANT

In Bashira v. State of U.P.98, the Court concluded that the appellant’s conviction in a trial
conducted in violation of the Rule, along with the imposition of the death sentence, would lead to
the deprivation of life in violation of the procedure established by law. The importance of a fair
trial was addressed by the Court in Zahira Habibulla H. Sheikh & Anr. Vs. State of Gujarat &
Ors99. The Court made the following points: “Failing to give a fair hearing to either the accused
or the prosecution violates basic standards of due process. The concept of due process means that
condemnation should only come after a proper trial, where the hearing is genuine and not a mere
formality or a mock process. A trial that is rushed, manipulated, or biased can violate the right to
a fair hearing”.

The right to a Fair trial is a fundamental safeguard to ensure that individuals are protected from
unlawful or arbitrary deprivation of their human rights and freedoms, most importantly of the
liberty and security of the person100. In Best Bakery, the Court emphasized that a fair trial is an
evolving concept, balancing the interests of the accused, victim, and society. Denying fairness
harms all involved. A rushed or manipulated trial is meaningless. The Court’s focus was solely
on whether the appellant received effective legal aid, not on the merits of the case. In the case
of Kamlesh v. State of Rajasthan101, The Court held that the Trial Judge must balance swift
justice for the victim with protecting the accused’s rights. Both must be respected separately to
prevent a miscarriage of justice. Authorities must act lawfully, reasonably, and fairly. In this
case, while the presiding officer may not have meant to act wrongly, their actions were
unreasonable, unfair, and not in line with the law 102. The Court emphasized natural justice,
particularly audi alteram partem—both sides must be heard before judgment. A fair hearing
must be genuine, not a formality. Therefore, the accused in criminal cases has the right to be
heard impartially by the judge and to be given a fair opportunity at every stage of the trial to
defend their rights and freedoms103.

98
Bashira v. State of U.P, AIR 1968 SC 1313
99
Zahira Habibulla H. Sheikh & Anr. Vs. State of Gujarat & Ors (2004) 4 SCC 158
100
Dr. Kalpna Sharma, Concept of a Fair Trial, available at https://lc2.du.ac.in/DATA/fair%20trial%20(Dr.
%20Kalpna%20Sharma).pdf.(last visited Feb. 9, 2025).
101
Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445
102
Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445
103
Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445

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If the methods used to conclude don’t align with legal principles, the result cannot be justified.
An individual is part of a family, and a family is part of society, so laws are made for the greater
good of society. Therefore, if the charges are serious, the accused must be given a real
opportunity to defend their rights, not just a superficial one 104. There should be no rush or
competition among trial judges to finish a case quickly. A balanced approach is needed, ensuring
that the trial proceeds in an orderly and systematic manner, without rushing or causing
unnecessary delays105. The phrase "procedure established by law" is crucial, as unfair processes
can threaten life and liberty. Fair, stable, and reasonable procedures uphold justice, ensuring
legal safeguards and the fundamental right to a hearing.

4.1 Did the collection of witness testimonies without formal summonses and the delayed
appointment of legal counsel constitute procedural irregularities that violated the accused's
right to a fair trial?

As per para 14 within 15 days excluding Sunday testimonies were gathered without issuing a
summon106. As here the due process of law is not followed as due process is a basic
constitutional right that ensures all legal proceedings are fair. It means that before the
government can take away a person's life, freedom, or property, they must be given notice and a
chance to be heard. It also guarantees that laws must be fair, reasonable, and not random or
unjust107. Quick justice can become weak justice if it is not carried out following the proper legal
procedures and standards. While a trial needs to be completed quickly to preserve the memory of
witnesses, in this case, the testimonies and statements were recorded too hastily, which ended up
retraumatizing the victim and violating the accused’s right to a fair and just trial free from bias 108.

In the case of Babu Ram v. State of Himachal Pradesh109 From the start, the trial proceeded on a
day-to-day basis, except on weekends, and all the prosecution witnesses were presented without
summons. One key witness, Sunil, was ordered to be brought from District Jail, Dhar, but was
never examined, and there's no record of the witness being excluded. Sunil was named as a
104
Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445
105
Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445
106
Moot problem para 14
107
https://www.manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf (last visited Feb. 9, 2025).
108
Kamlesh v. State of Rajasthan, 2023 SCC OnLine Raj 5445
109
Babu Ram v. State of Himachal Pradesh, Cr. Appeal No. 322 of 2021, at 1 (H.P. High Ct. Sept. 26, 2024),
available at https://indiankanoon.org/doc/139907294/(last visited Feb. 9, 2025).

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suspect in the FIR, so his absence created a significant gap in the prosecution's case 110.The public
prosecutor should not exercise the discretion to "select" their witnesses, as they must remain
impartial to the court and, by extension, to the truth 111. In this case also in para 6 of moot
problem where Mr Daniel also saw the same suspicious activity around his residence over ten to
eleven days112 his examination was not conducted although he was the material witness.

In the same case accused was not able to present his witnesses, yet he was required to have them
present the very next day. When he couldn't produce the witnesses, his defenses were closed, and
the case was set for final arguments after a break 113. As in para no. 16 of the moot problem the
court instructed the accused to secure the attendance of their witness within three days 114. In the
case of Abdul Rehman Antulay and others v R.S. Naik 115 and another conclusion drawn by the
Supreme Court in which it was also said by the SC that it is neither practicable nor advisable to
fix any time limit for the trial of offence, it depends on the fact and circumstances of each case.

The 245th report emphasizes a striking balance between the time taken and the quality of justice
delivered. Fixing time standards unlike time frames could be one possible way of striking a
balance. As legal experts say, just like justice delayed is justice denied, justice hurried is
buried116. In the moot problem para 16 the court-appointed counsel merely a day before the
commencement of hearings on the request of the accused 117, which also procedural irregularities
that vitiate the accused person's right to a fair trial. In the case of State of Madhya Pradesh v.
Anokhilal118, The Court emphasized that the accused must be given a fair opportunity to defend
himself, especially in serious cases. Since the time given was insufficient, the conviction and

110
Anokhilal v. State of Madhya Pradesh, Cr. Appeal No. 11421 of 2022, at 1 (M.P. High Ct. Oct. 19, 2023),
available at https://indiankanoon.org/doc/34705863/.(last visited Feb. 9, 2025).
111
Babu Ram v. State of Himachal Pradesh, Cr. Appeal No. 322 of 2021, at 1 (H.P. High Ct. Sept. 26, 2024),
available at https://indiankanoon.org/doc/139907294/.(last visited Feb. 9, 2025).
112
Moot problem para 6
113
Anokhilal v. State of Madhya Pradesh, Cr. Appeal No. 11421 of 2022, at 1 (M.P. High Ct. Oct. 19, 2023),
available at https://indiankanoon.org/doc/34705863/(last visited Feb. 9, 2025).
114
Moot problem para 16
115
Abdul Rehman Antulay and others v R.S. Naik, AIR 1992 SC1701
116
Fast Track Courts and the Right to a Fair Trial under Article 21, International Journal of Law and Legal Research,
available at https://www.ijllr.com/post/fast-track-courts-and-the-right-to-a-fair-trial-under-article-21.(last visited
Feb. 9, 2025).
117
Moot problem para 16
118
State of Madhya Pradesh v. Anokhilal, CRRFC No. 6 of 2022, at 1 (M.P. High Ct. Sept. 11, 2023), available at
https://mphc.gov.in/upload/jabalpur/MPHCJB/2022/CRRFC/6/CRRFC_6_2022_FinalOrder_11-Sep-2023.pdf.(last
visited Feb. 9, 2025).

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sentence were overturned, and the case was sent back for a fresh trial with a reasonable
opportunity for the accused to prepare his defense119.

In the case of Bashira vs. the State of U.P120., a situation similar to the present case arose when
the trial was conducted in just 13 days. Addressing the defense counsel's argument regarding the
lack of sufficient time to prepare, the Court stated, “The record shows no evidence that the
counsel was given adequate time to prepare the defense. The trial proceeded immediately after
his appointment, leaving minimal time for preparation. The court failed in its duty to ensure
sufficient time, violating the Rule’s requirements”. “In this regard, we can refer to the decisions
of two High Courts where similar situations arose. In the case of Re: Alla Nageswara Rao121,
Subba Rao, Chief Justice, speaking for the Bench, held that...” "A mere formal adherence to this
rule does not fulfill its intended purpose. Sufficient time must be provided to the advocate
representing the accused to prepare and present the case properly. We are convinced that the time
given was inadequate, and under these circumstances, the accused was not given a genuine
opportunity to defend himself." This view was based on the fact that the advocate was engaged
only two hours before the trial. The Kerala High Court in Mathai Thommen v. State criticized the
late appointment of defense counsel, noting that engaging an advocate just before trial
undermines the right to a fair defense. The court emphasized that counsel should ideally be
appointed 10 to 15 days before trial with access to case records to ensure proper representation.

In Anokhilal vs. State of Madhya Pradesh122, the Court, referring to Best Bakery, made the
following observations in paragraphs 21 to 23: In this case, the Amicus Curiae was appointed on
19th February 2013, and on the same day, the counsel was asked to defend the accused when the
charges were framed. It is clear that the Amicus Curiae did not have enough time to go through
the basic documents or discuss the case with the accused, nor did they have time to reflect on the
matter. Before the Amicus Curiae could properly understand the case, the charges were already
framed. In this case, the appellant's right was denied as the process was rushed. Charges were
framed and the trial was completed within two weeks, making legal assistance ineffective. The

119
State of Madhya Pradesh v. Anokhilal, CRRFC No. 6 of 2022, at 1 (M.P. High Ct. Sept. 11, 2023), available at
https://mphc.gov.in/upload/jabalpur/MPHCJB/2022/CRRFC/6/CRRFC_6_2022_FinalOrder_11-Sep-2023.pdf.(last
visited Feb. 9, 2025).
120
Bashira v. State of U.P, AIR 1968 SC 1313
121
Re: Alla Nageswara Rao on 23 Nov, 1954
122
Anokhilal vs. State of Madhya Pradesh (2019) 20 SCC 196

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Court also established guidelines for cases where the accused is represented by counsel
appointed through legal aid. These guidelines, stated in paragraph 31 of the judgment, are as
follows:

 For death sentence confirmations, the High Court should consider appointing Senior
Advocates as Amicus Curiae.
 Amicus Curiae must be given sufficient time to prepare, typically at least seven days
considered appropriate and adequate123.

While a speedy trial is crucial, this Court now highlights the importance of free legal aid, a
constitutional right under Article 21 and Article 22, ensuring legal representation and protection
of life and liberty.

4.2 Does the expedited nature of a fast-track court compromise the accused’s right to a fair
trial by limiting time for defense preparation and due process?

Fast-track courts failed to live up to the quality of justice that should be rendered under a fair
trial. To ensure the right to a fair trial under Article 21 the courts need to ensure that how the trial
is carried out is fair and reasonable. In some instances, fast-track courts appear to fail the notion
of speedy trial based on the unreasonable expectations made by a court. As per section 167 124 of
the Criminal Procedure Code police can have 90 days to conclude the investigation and courts
can send it back for revaluation so that sufficient evidence can be presented. Also, the reports
from forensic labs alongside second opinions from medical experts are essential to determine the
nature of the offense jumping to a hasty conclusion could be problematic. The special fast-track
court does deal with cases of rape and POCSO but it does not guarantee that cases of such nature
always be transferred to this court125.

It is a miscarriage of justice that the appellant was not given a fair chance to defend himself. This
case highlights a troubling trend where trial courts rush through criminal cases involving rape
and murder. It is a well-established law that an accused person has the right to a fair trial, which
123
Anokhilal vs. State of Madhya Pradesh (2019) 20 SCC 196
124
Code of Criminal Procedure, § 167, No. 2, Acts of Parliament, 1973 (India).
125
Fast Track Courts and the Right to a Fair Trial under Article 21, International Journal of Law and Legal Research,
available at https://www.ijllr.com/post/fast-track-courts-and-the-right-to-a-fair-trial-under-article-21(last visited Feb.
9, 2025).

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is guaranteed under Article 21126 of the Constitution of India. Regarding the conviction and
sentence being given on the same day, Section 235 (2) 127 of the Criminal Procedure Code aims to
ensure the accused is given a chance to present a defense before the sentence is passed. Separate
hearings for conviction and sentencing are needed to give the accused a fair opportunity. The
trial court must also allow the accused to present relevant material regarding the death
sentence128.

4.3 Does preventing the accused from cross-examining medical and forensic experts violate
their right to a fair trial? Were there any procedural flaws in how forensic and physical
evidence was collected?

The right to a fair trial is a fundamental legal principle that ensures an accused person has the
opportunity to defend themselves effectively. One crucial aspect of this right is the ability to
cross-examine witnesses, including medical and forensic experts whose testimonies significantly
impact the case. Denying the accused this right raises serious concerns about procedural fairness
and the integrity of the judicial process.

In the moot problem, paragraph 17 states that the defense requested the examination of medical
and forensic experts who authored critical post-mortem and DNA reports 129. However, both
experts failed to appear, depriving the defense of the opportunity to challenge their findings. This
situation directly contradicts the principles outlined in Parappa and Others vs. Bhimappa and
Another130 where the Karnataka High Court emphasized that expert evidence must not only be
presented but also subjected to cross-examination before it becomes admissible. Without this, the
evidence remains unreliable, weakening the prosecution’s case. The Supreme Court has also
reinforced this stance, asserting that DNA reports and forensic evidence lose their credibility if
the experts who prepared them are not examined in court. The trial court is obligated to ensure
that expert witnesses testify and are cross-examined to uphold the accused’s right to a fair trial.
The ability to question expert witnesses is as essential to the defense as the lumbar spine is to the

126
Indi. Const. art. 21
127
Code of Criminal Procedure, § 235(2),No. 2, Acts of Parliament, 1973 (India).
128
Bhagwani vs The State Of Madhya Pradesh on 18 January, 2022 available at
https://indiankanoon.org/doc/18289604/ (last visited Feb. 9, 2025).
129
Moot problem para 17
130
Parappa and Others vs. Bhimappa and Another (ILR 2008 KAR 1840),

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human body—it supports and strengthens the case, allowing the accused to challenge the
prosecution’s claims131.

Sections 137132 and 138133 of the Indian Evidence Act outlines the necessity of cross-
examination. These sections establish that an examination is incomplete unless the opposing
party has had a chance to cross-examine the witness. In this case, the trial was rushed, leaving
the defense lawyer with insufficient time to understand the accused’s perspective and prepare an
effective cross-examination. The lawyer’s ability to challenge the prosecution’s evidence was
severely impacted, violating Section 138 134 of the Code of Criminal Procedure (CrPC), which
mandates a fair and structured examination of witnesses.

In Anil @ Anthony Arikswamy Joseph vs. State of Maharashtra 135, the Court noted that DNA
profiling plays a crucial role in forensic investigations. However, its reliability depends on
proper quality control measures. If the methods used to collect and analyze DNA evidence are
not verified, the results become questionable. The High Court’s dismissal of the accused’s
challenge to the DNA report, despite the defense not having an opportunity to cross-examine the
experts, was a procedural flaw that undermined the fairness of the trial. The case of Ghulam
Hassan Beigh vs. Mohammad Maqbool Magrey136 The Supreme Court emphasized that medical
experts are advisors, not witnesses of fact. They provide technical insights to aid judgment.
Without cross-examination, their reports cannot be blindly relied upon, as it denies the accused a
chance to challenge their findings.

131
Parappa and Others vs. Bhimappa and Another (ILR 2008 KAR 1840),
132
The Indian Evidence Act, 1872, § 137, No. 1, Acts of Parliament, 1872 (India).
133
The Indian Evidence Act, 1872, § 138, No. 1, Acts of Parliament, 1872 (India).
134
Code of Criminal Procedure, § 138,No.2, Acts of Parliament, 1973 (India).
135
Anil @ Anthony Arikswamy Joseph vs. State of Maharashtra, (2014) 4 SCC 69
136
Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey (2022) 12 SCC 657

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VIII. PRAYER

It is hereinafter humbly prayed before this Hon’ble Supreme Court of Titan that in the light of
issue raised, argument advanced, authorities cited and pleadings made, the Hon’ble Court may be
pleased to adjudge and declare that:

 Firstly, the Sessions Court was not justified in awarding death penalty to the accused
under the provisions of POCSO Act, 2012.
 Secondly
 Thirdly,
 Fourth,.

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 APPELLANT SHALL
FOREVER PRAY.

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 MEMORIAL on behalf of APPELLANT

Place: Union of Titan

Respectfully Submitted,

Counsels on behalf of the

Appellant

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