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CHHATRAPATI SHRI SHIVAJI MAHARAJ THIRD STATE LEVEL MOOT COURT

COMPETITION 2022

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

(UNDER ARTICLE 134 OF THE CONSTITUTION OF INDIANA)

CRIMINAL APPEAL

IN THE MATTER OF:

STATE OF MAHADESHYAM ..................................................................... PETITIONER

V.

KARAN DHAKNE & ORS. .......................................................................... RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

MEMORIAL FOR THE RESPONDENT

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TABLE OF CONTENTS

S.NO. HEADING PAGE

NO.

I LIST OF ABBREVIATIONS 3

II INDEX OF AUTHORITIES 4-7

A ACTS & LEGISLATIONS 4

B BOOKS 5

C LAW DICTIONARY/ LEXICON 5

D ONLINE DATABASES 5

E OTHER AUTHORITIES 5-6

F LIST OF CASE LAWS 6-7

III STATEMENT OF JURISDICTION 8

IV STATEMENT OF FACTS 9

V ISSUES RAISED 11

1. WHETHER THE APPEAL IS MAINTAINABLE? 13

2. WHETHER THE HON9BLE HIGH COURT IS JUSTIFIED IN COMUTING 19

THE DEATH SENTENCE INTO LIFE IMPRISONMENT?

3. WHETHER THE DEATH PENALTY IS UNCONSTITUTIONAL? 23

VI SUMMARY OF ARGUMENTS 12

VII ARGUMENTS ADVANCED 13-26

VIII PRAYER 27

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LIST OF ABBREVIATIONS

S.NO. ABBREVIATION FULL FORM

1. & And
2. Sec. Section
3. p. Page
4. AIR All India Record
5. Ors. Others
6. Anr. Another
7. Art./Art Article
8. Vs. Versus
9. IPC Indian Penal Code
10. POCSO Protection of Children against sexual offences
11. ILR Indian Law Review
12. e.g. for example
13. ed./eds. Editor/Editors/Edition
14. Govt. Government
15. Hon9ble Honorable
16. Ibid. The same
17. ILR Indian Law Reports
18. CrPc Criminal Procedure Code
19. SC Supreme Court
20. SCC Supreme Court Cases
21. SCR Supreme Court Reports
22. CriLJ Criminal Law Journal
23. Vol. Volume
24. AIR All India Reporter
25. v. Versus
26. Prof. Professor
27. Dr. Doctor
28. KLT Kerala Law Times

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INDEX OF AUTHORITIES

A. ACTS AND LEGISLATIONS

S.NO ACTS / LEGISLATIONS

1. Art. 134 of The Constitution of India, 1949

2. Section 354 of Criminal Procedure Code
3. Art. 21, The Constitution of India, 1949
4. Article 376 of The Indian Penal Code

B. BOOKS
S.NO BOOKS CITED / REFERRED

1. Justice M.R. Mallick Criminal Manual (Criminal Major Acts) containing CrPc, 1973
IPC (45 of 1860) Indian Evidence Act, 1872

2. Constitutional Law of India, Dr. J. N. Pandey

3. Prof. (DR.) T. Bhattacharya The Indian Penal Code, 1860

4. The Indian Penal Code Bare Act With Short Comments

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C. LAW DICTIONARIES/ LEXICONS

I. Aiyer, Ramanatha P., Advanced Law Lexicon, Third Edition, 2005, Wadhwa,
Nagpur.
II. Garner Bryan A., Black9s Law Dictionary, Seventh Edition 2002.
III. Oppe A.S., Wharton9s Law Lexicon, Fourteenth Edition 2003.
IV. Sethi R.P., Supreme Court on Words and Phrases, 2004, Ashoka Law House.
V. Venkatramaiya, Law Lexicon, Second Edition 2005, Law Publishers (India) Pvt
Ltd.

D. ONLINE DATABASES
VI. Manupatra [www.manupatra.com]
VII. LexisNexis [www.lexisnexisadvance.com]
VIII. SCC Online [www.scconline.com]
IX. TheHindu.com
X. Theleaflet.in

E. OTHER AUTHORITIES

XI. LAW COMMISSION OF INDIA Report No.262 The Death Penalty August 2015

XII. Oxford Dictionary of English (3rd ed. 2010)

XIII. Capital Punishment for Rape

www.legalserviceindia.com/legal/article-677-capital-punishment-for-rape.html

XIV. Seven Reasons why we shouldn9t demand the death penalty for rape
https://thewire.in/women/rape-death-penalty

XV. Why the death penalty is not the solution to India9s rape problem

https://www.article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-
s-rape-problem

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XVI. Rape is wrong but death penalty, castration, not the answer.

https://news.un.org/en/story/2020/10/1075452

XVII. Should those who rape minors get the death penalty?

https://www-thehindu-
com.cdn.ampproject.org/v/s/www.thehindu.com/opinion/op-ed

XVIII. SC Commutes death sentence of accused in a rape and murder

https://theleaflet.in/sc-commutes-death-sentence-of-accused-in-a-rape-and-
murder-case-to-30-year-life-imprisonment-without-remission/

XIX. Nirbhaya Verdict: What Does 8Rarest of the Rare9 Actually Mean?

https://www.thequint.com/voices/blogs/nirbhaya-verdict-death-sentence-indian-
judiciary-legal-system-rarest-of-the-rare-cases

XX. A reflection of the death penalty for rape in India

https://theleaflet.in/a-reflection-on-the-death-penalty-for-rape-in-india/

XXI. Constitutional validity of death penalty

https://www.legalserviceindia.com/legal/article-5346-constitutional-validity-of-
capital-punishment.html

XXII. Whether the death sentence is violative of article 21

https://lawcorner.in/whether-death-sentence-is-violative-of-article-21/

XXIII. Increasing rape on minors and psychology of rapists

Legalserviceindia.com

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F. LIST OF CASE LAWS

S.NO NAME OF THE CASE

1. Maneka Gandhi v. Union of India [1978] AIR 597

2. Macchi Singh v. The State of Punjab [1983] SCR (3) 413

3. Santosh Kumar Bariyar vs. State of Maharashtra [2009] SCC (6) 498

4. Parsuram vs. state of Madhya Pradesh LQ/SC/2021/2794

5. Mohd. Mannan vs. State of Bihar (2011) 8 S.C.C 65

6. Rajkumar vs. the state of Madhya Pradesh 1990 (0) MPLJ 289

7. Sebastian Chevithiyan vs. State of Kerala 2016(3) KLT 348

8. Pappu vs. the State of Uttar Pradesh 1998 CriLJ 122

9. Sachin Kumar Singhraha vs. The State of Madhya Pradesh (2016) 9 SCC 675

10. Furman vs. Georgia 408 U.S. 238 (1972)

11. Dhari Kumar Jamatia vs. State Of Tripura (1981)1 SCC 560

12. State Of Tamil Nadu Etc.Perajmal vs. Suresh (A-2) & Anr.

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STATEMENT OF JURISDICTION

The Hon'ble Supreme Court of Indiana has jurisdiction to hear the instant matter under:

Article 134 of the Constitution of Indiana

Article 134 of the Constitution of Indiana reads as: –

Appellate jurisdiction of Supreme Court in regard to criminal matters

(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has withdrawn
for trial before itself any case from any court subordinate to its authority and has in such trial
convicted the accused person and sentenced him to death; or

(c) Certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided
that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that
behalf under clause (1) of Article 145 and to such conditions as the High Court may establish or
require

(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear
appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the
territory of India subject to such conditions and limitations as may be specified in such law

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STATEMENT OF FACTS

• The Republic of Indiana is a federal country. The state of Mahadeshyam is one of the states
of Indiana.

• Kumari Mansi Ghorpade is the victim, aged 14 years (minor). She was a citizen of Indiana,
and was residing in a small village, Mojardi in the district of Punyanagar, Mahadeshyam
state.

• On 25th February 2020, Mansi was returning back home after school hours and was brutally
raped by three persons (accused) namely Karan (21 years), Kishore (23 years) and Sunil (22
years).

• Kumari Mansi Ghorpade was allegedly grievously injured by the accused which caused her
death on the same day (25th February 2020).

• Mrs. Sunita Sadabhau Ghorpade (the mother of the victim) after knowing the fact that her
daughter was raped, she had registered an FIR at the nearest police station. During the
police investigation it was found that the accused had been molesting the victim for 15 days
prior to her death.

• The autopsy of the victim had revealed that she had deep injuries on her body. A trial was
conducted by the sessions court of Punyanagar, during which the three accused were
convicted and were imposed a death sentence.

• Subsequently an appeal was filed by the accused in the High court of Mahadeshyam state
on 3rd December 2021. The high court commutated the death sentence into life
imprisonment.

• On 3rd January 2022, the state filed an appeal in the Hon9ble Supreme court of Indiana to
set aside the judgment of the high court of Mahadeshyam and pray for a death sentence.

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ISSUES RAISED

I.
WHETHER THE APPEAL IS MAINTAINABLE?

II.

WHETHER THE HON’BLE HIGH COURT IS JUSTIFIED IN COMMUTING THE

DEATH SENTENCE INTO LIFE IMPRISONMENT?

III.

WHETHER THE DEATH PENALTY IS UNCONSTITUTIONAL?

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SUMMARY OF ARGUMENTS

1. WHETHER THE APPEAL IS MAINTAINABLE?

It is humbly submitted before the Hon9ble Supreme court that the present appeal is not
maintainable. It is to be noted that the present case is does not fall under the substantive
question of law. It is to be noted that the present case does not fall under the category of the
<rarest of rare= and the high court has taken the decision after thorough and rigorous analysis
of the facts of the case and the backgrounds of the accused. The present appeal has been put
forth just to waste the time of the Hon9ble Supreme court and delay the course of Justice.

2. WHETHER THE HONB’LE HIGH COURT IS JUSTIFIED IN COMMUTING

THE DEATH SENTENCE INTO LIFE IMPRISONMENT?

It is most humbly submitted before this Hon9ble Court that the commuting of the death
sentence into life imprisonment is justified. This argument will be tackled in a twofold
manner which will be elaborated on further in the Statement of Arguments section. Firstly,
this particular case does not fall under the rarest of the rare category which is necessary to
award a death penalty. Secondly, there is a high possibility of the aspect of reform and
rehabilitation of the accused, especially considering the lack of criminal background.

3. WHETHER THE DEATH PENALTY IS UNCONSTITUTIONAL?

It is humbly submitted before this Hon9ble Court that awarding the capital punishment to the
accused is not constitutional. It is to be noted that the present case does not fall under the
category of <rarest of rare= and the <grievousness of the offence= is not up to the level to
award a capital punishment. Therefore awarding the capital punishment to the accused will be
a violation of their fundamental rights, in particular Article 21. It is to be noted that in the
present case the depravation of life and personal liberty is not in accordance to the procedure
established by valid law, as is required to constitutionally provide the death penalty. Thus,
commuting the life imprisonment sentence, to death penalty will be in violation of the
constitutional rights provided to every citizen of Indiana.

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ARGUMENTS ADVANCED

ISSUE 1 - WHETHER THE APPEAL IS MAINTAINABLE?

It is humbly submitted before this Hon9ble court that the present appeal is not maintainable.
Article 134A of the Indian constitution states that-

Appellate jurisdiction of Supreme Court in regard to criminal matters

(A) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court has on appeal
reversed an order of acquittal of an accused person and sentenced him to death; or has
withdrawn for trial before itself any case from any court subordinate to its authority and has
in such trial convicted the accused person and sentenced him to death

Under the aforementioned article it is clearly evident that this appeal is not maintainable. In
the present case the High Court has not imposed the capital punishment on the accused, as is
required by the article, rather the High Court has overturned the judgment of Death penalty
by the trial court and has awarded the accused with the sentence of life imprisonment.

The sections under which the accused have been booked also provide the highest punishment
to be life imprisonment. Therefore, the appeal to transform the life imprisonment sentence to
that of capital punishment is not maintainable.

Additionally, the present case does not fall under the category of a substantive question of
law. There are several previous judgments, for e.g State Of Tamil Nadu Etc. Perajmal vs
Suresh (A-2) & Anr.1 in which this Hon9ble court has set aside the judgment of death penalty and
have in turn awarded the sentence of life imprisonment

Furthermore it is to be noted that the present case does not fall under the category of the
<rarest of rare= and the high court has taken the decision after thorough and rigorous analysis
of the facts of the case and the backgrounds of the accused.

1
State of Tamil Nadu, etc Perajmal vs Suresh (A-2) & Anr.
2
A reflection of the death penalty for rape in India https://theleaflet.in/a-reflection-on-the-death-penalty-for-
rape-in-india/

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The present appeal has been put forth just to waste the time of the Hon9ble Supreme court and
delay the course of Justice.

Hence, it is maintained by the counsel that the petition at hand is not maintainable

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ISSUE 2- WHETHER THE HON’BLE HIGH COURT IS JUSTIFIED IN

COMMUTING THE DEATH SENTENCE INTO LIFE IMPRISONMENT?

It is humbly submitted before this Hon9ble court that in the instant case the high court is
justified in commutating the death sentence into life imprisonment because death penalty is
not an appropriate punishment for the offence committed by the respondents as it is a cruel
and unusual punishment and does not serve any achievable goals in the society. This
argument will be tackled in a twofold manner

In the first leg of the argument it is to be argued that the death penalty is unsustainable as the
facts of the present case do not qualify under the guidelines set to award the said penalty,
namely the <rarest of rare= criteria is not met by the present case. It is important to note that
the death penalty should be imposed in rarest of the rare case as is the standard guideline set
by the landmark judgment of Macchi Singh vs. The State of Punjab3. The legal precedent
set by the aforementioned case clearly states that the death sentence cannot be imposed
except in the rarest of rare cases, for which special reasons have to be recorded, as mandated
in Section 354(3) of the Criminal Procedure Code. In deciding whether a case falls within the
category of the rarest of rare, the brutality, and/or the gruesome and/or heinous nature of the
crime is not the sole criterion. It is not just the crime which the Court is to take into
consideration, but also the criminal, the state of his mind, his socio-economic background,
etc. Awarding death sentence is an exception, and life imprisonment is the rule. It is stated
that

I The Manner of Commission of the crime when the crime is committed in an extremely
brutal, grotesque, diabolical. Revolting, or dastardly manner so as to arouse intense and
extreme indignation of the community.

II Anti-Social or Socially abhorrent nature of the crime.

3
Macchi Singh vs. the State of Punjab [1983] SCR (3) 413
4
Seven Reasons why we shouldn9t demand the death penalty for rape https://thewire.in/women/rape-death-
penalty

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Furthermore it is to be noted that

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

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be
taken into consideration along with the circumstances of the 'crime'

(iii)Life imprisonment is the rule and death sentence is an exception. In other words 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 sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of the crime and all
the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances has to be accorded full weightage and a just balance
has to be struck between the aggravating and the mitigating circumstances before the option
is exercised.

It is to be noted that present case does not fall under any of the aforementioned guidelines set
in place by the landmark judgment. This makes it clearly evident that the case at hand is not
of the <rarest of rare= kind and thus the accused cannot be awarded capital punishment for the
same.

In another case, Santosh Kumar Bariyar vs. State of Maharashtra5 it was stated that the
background analysis leading to the conclusion that the case belongs to rarest of rare category
must conform to highest standards of judicial rigor and thoroughness as the norm under
analysis is an exceptionally narrow exception.

A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification
of aggravating and mitigating circumstances relating both to the crime and the criminal. It
was in this context noted:

5
Santosh Kumar Bariyar vs. The state of Maharashtra [2009] SCC (6) 498
6
Should those who rape minors get the death penalty?

https://www-thehindu-com.cdn.ampproject.org/v/s/www.thehindu.com/opinion/op-ed

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"The expression "special reasons" in the context of this provision, obviously means
"exceptional reasons" founded on the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal"

The accused have gone under investigation and through several legal proceedings, all of
which pointed to the fact that the case at hand does not fall under the category of the <rarest
of rare=. The high court in its proceedings has thoroughly and rigorously gone through the
facts of the case and the backgrounds of the accused and has reached the conclusion that a life
imprisonment sentence is more apt. Therefore, it is clearly evident based on previous
investigations, proceedings and the aforementioned judgments that the present case is not of
the <rarest of rare= kind and thus a death penalty is unwarranted.

Furthermore in a similar case, namely Parsuram vs. state of Madhya Pradesh7, it was
stated that the Court made the following O R D E R <Having regard to the totality of the facts
and circumstances of the case, more particularly when the accused has taken advantage of his
relationship with the family of the victim as a tutor, though we find that the instant case does
not fall in the category of the rarest of rare cases deserving imposition of the death penalty.

The interest of justice would be met if the appellant herein is sentenced to undergo
imprisonment of 30 years (without any remission)=.

Thus similarly in the present case, relying on this previous judgment we can state that the
particular instance is not of the kind to justify capital punishment.

In the second leg of the argument it is to be argued that due to the lack of criminal
background of the accused, and the nature of the case there is a high probability of reform and
rehabilitation.

In the case of Mohd. Mannan vs. State of Bihar8, the bench had observed that <before
imposing the extreme penalty of death sentence, the Court should satisfy itself that death
sentence is imperative, as otherwise the convict would be a threat to the society, and that
there is no possibility of reform or rehabilitation of the convict=

7
Parsuram vs. state of Madhya Pradesh LQ/SC/2021/2794

8
Mohd. Mannan vs. State of Bihar (2011) 8 S.C.C 65

9Nirbhaya Verdict: What Does 8Rarest of the Rare9 Actually Mean?

https://www.thequint.com/voices/blogs/nirbhaya-verdict-death-sentence-indian-judiciary-legal-system-rarest-of-

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It is to be noted that in the present case, there is a high chance of rehabilitation. The
significantly young age of the accused should be taken into consideration and the fact none of
them have any criminal background is of note. There has been nothing to suggest that these
young men cannot be reformed. Neither has it been proven beyond doubt that accused will be
or are of any harm or pose any kind of threat to the society. It is the duty of the law to provide
a chance at rehabilitation and reform, and the accused are prime candidates for rehabilitation
as they have no criminal background and after serving the appropriate sentences will not pose
as any threat to society, thus the imposition of the death penalty is not appropriate for the
matter at hand.

It is to be argued, that providing the death penalty in such cases places the convicts at the risk
of being subjected to <retributive justice=. They often are placed at the risk of being subjected
to the public opinion, rather than giving light on the fact to consider the dignity and the life of
each individual. The dehumanization of the convicts by the public deprives them of a fair
chance of rehabilitation.

Furthermore, there is no evidence to state that providing capital punishment in such cases will
deter other people from committing the same crimes. In fact, it is evident that providing such
harsh and grave judgments in such cases does not decrease the number of the crime being
committed, in actuality it leads to less number of people coming forward after facing such
issues or even the perpetrators making sure that the victims are in no position to complain
against them. The practice of giving the death penalty in such cases, which do not qualify
under the 8rarest of rare=, the cases in which there is a high chance of rehabilitation may even
act as a deterrent to the aspirations of eradicating such crimes altogether.

Law is present to protect and serve all, including the victims and the convicts. Providing the
death penalty and depraving them of the chance to reform and rehabilitate and function as
upholding citizens of the society is deterrent to the course of law.

In the case similar to the one present at hand, namely Rajkumar vs. the state of Madhya
Pradesh10, the court stated <taking into consideration the aforesaid judgments, we are of the
view that in spite of the fact that the appellant had committed a heinous crime and raped an
innocent, helpless and defenseless minor girl who was in his custody, he is liable to be
punished severely but it is not a case which falls within a category of rarest of rare cases.

10
Rajkumar vs. the state of Madhya Pradesh1990 (0) MPLJ 289

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Hence, we set aside the death sentence and award life imprisonment.

The appellant must serve a minimum of 35 years in jail without remission, before
consideration of his case for pre-mature release. However, it would be subject to clemency
power of the Executive= and thus overturned the judgment of the sessions court of a death
penalty and in turn giving the life imprisonment sentence.

In a case of Sebastian Chevithiyan vs. State of Kerala11 which was concerning the rape and
murder of a minor, the court converted the sentence of death penalty into that of life
imprisonment. The court in that particular case stated <In the light of the discussions made
above we are clearly of the view that there is a good and strong basis for the Court to
substitute a death sentence by life imprisonment or by a term in excess of fourteen years and
further to direct that the convict must not be released from the prison for the rest of his life or
for the actual term as specified in the order, as the case may be."

In a recent case, namely Pappu vs. the State of Uttar Pradesh12, the Hon9ble Supreme court
taking into consideration the lack of criminal background of the accused and the poor socio-
economic background he belonged to, commuted his death sentence into that of life
imprisonment. The court stated that “When the appellant is not shown to be a person having
criminal antecedents and is not a hardened criminal, it cannot be said that there is no
probability of him being reformed and rehabilitated. His unblemished jail conduct and having
a family of wife, children and aged father would also indicate towards the probability of his
reformation.=

In yet another case, i.e., Sachin Kumar Singhraha vs. The State of Madhya Pradesh 13, the
Hon9ble Supreme court stated that <Life imprisonment is the rule to which the death penalty
is the exception.

The death sentence must be imposed only when life imprisonment appears to be an altogether
inappropriate punishment, having regard to the relevant facts and circumstances of the
crime=. In the aforementioned case the court held that <With regard to the totality of the facts
and circumstances of the case, we are of the opinion that the crime in question may not fall
under the category of cases where the death sentence is necessarily to be imposed.=

11
Sebastian Chevithiyan vs. State of Kerala 2016(3) KLT 348

12
Pappu vs. the State of Uttar Pradesh 1998 CriLJ 122

13
Sachin Kumar Singhraha vs. The State of Madhya Pradesh (2016) 9 SCC 675

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From the various cases cited above it is evident that even though the case at hand is that of a
grave and heinous kind, it is not of the <rarest of rare= and the accused can be reformed and
rehabilitation.

Hence, it is maintained that the Hon9ble High court was justified in commuting the death
penalty into the sentence of life imprisonment

ISSUE 3- WHETHER THE DEATH PENATLY IS UNCONSTITUTIONAL?

It is humbly submitted before the Hon9ble Supreme court that the order of death penalty is
unconstitutional and in violation of the constitutional rights of the accused. The accused have
been convicted under 376(2) (g) and Section 376(D) (a) of IPC.

Section 376(2) (g) state that- <commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years but which may be for life and
shall also be liable to fine: Provided that the Court may, for adequate and special reasons to
be mentioned in the judgment, impose a sentence of imprisonment of either description for a
term of less than ten years=

Section 376da states that-

<Where a woman under sixteen years of age is raped by one or more persons constituting a
group or acting in furtherance of a common intention, each of those persons shall be deemed
to have committed the offence of rape and shall be punished with imprisonment for life,
which shall mean imprisonment for the remainder of that person9s natural life, and with fine.=

It is to be noted that the victim was of 14 years of age. In the above mentioned articles and
sections it is clearly stated that life imprisonment is the highest form of punishment to be
imposed in such a case. Thus providing the death penalty in such a case is unconstitutional
and in violation of Article 21.

14
Whether the death sentence is violative of article 21 https://lawcorner.in/whether-death-sentence-is-violative-
of-article-21/
15
Why the death penalty is not the solution to India9s rape problem

https://www.article-14.com/post/why-the-death-penalty-is-not-a-solution-to-india-s-rape-problem

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Article 21 guarantees the right to life and personal liberty which includes the right to live
with dignity. According to this article, no person shall be deprived of his life and personal
liberty except according to the procedure established by law. A person may be deprived of his
life or personal liberty in accordance procedure established by valid law.

However in the present case the depravation of life and personal liberty is not in accordance
to the procedure established by valid law. Under the aforementioned sections, which is
directly related to the present case, it is clearly stated that highest form of punishment to be
provided in such grievous situations shall be life imprisonment. Awarding the capital
punishment in such a situation is in direct violation of article 21, as the convicts are being
depraved of their right to life and personal liberty without being in accordance to the
procedure established by the valid law.

Moreover, awarding the capital punishment under the Indiana constitution, should only occur
in the rarest of rare case. In the previous argument we have proved that the case at hand does
not fall under the category of <rarest of rare= case.

The US Supreme Court held in the case of Furman vs. Georgia16 that death penalty was
unconstitutional as being unusual and a cruel form of punishment.

Furthermore in a similar case, namely Dhari Kumar Jamatia vs. State Of Tripura17 the
three (03) appellants, were convicted for offence punishable under Section 376D, and
sentenced to RI for Twenty (20) years which is the minimum sentence prescribed for the
offence and fine of Rupees Five thousand (Rs.5000/-)

16
Furman vs Georgia 408 U.S. 238 (1972)
17
Dhari Kumar Jamatia vs. State Of Tripura (1981)1 SCC 560
18
LAW COMMISSION OF INDIA Report No.262 The Death Penalty August 2015
19
Constitutional Law of India, Dr. J. N. Pandey

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payable to the victim with default stipulation and though the appellants were separately. Such
a case and its judgment is more apt and constitutionally valid for the present case rather than
the capital punishment.

It is therefore maintained that awarding the death penalty in the present case in
unconstitutional and in violation of the fundamental rights of the accused.

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PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, the Counsels for the Respondent humbly prays before this Hon9ble Court as
per the principles of natural justice, equity and good conscience, to kindly declare that

1. The appeal is not maintainable

2. The Hon9ble High court is justified in commutating the death sentence into life
imprisonment
3. The capital punishment is unconstitutional

And/or

Pass any other remedy/ ruling that the Hon’ble Court deems fit in the light of justice, equity
and good conscience and for this act of kindness, the Respondent as in duty bound shall
forever pray.

S/d
Counsel for the Respondent

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