Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Community
Ask the community for help and clear up your study doubts
Discover the best universities in your country according to Docsity users
Free resources
Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors
Moot Court Memorial on death penalty
Typology: Exercises
1 / 15
On special offer
Age: XX years, R/o village Khairlanji,
Tal: Warasione, District: Nagpur
(At present convicted to death penalty)
Age: XX years, R/o village Khairlanji, APPELLANT
Tal: Warasione, District: Nagpur
(At present convicted to death penalty)
Age: XX years, R/o village Khairlanji
Tal: Warasione, District: Nagpur
(At present convicted to death penalty)
Ltd Limited
L.J Law Journal
1 Indian Penal Code 1860 2 Evidence Act 3 Criminal Procedure Code
SUPREME COURT CASES
The appellant has filed an appeal to the Hon’ble Court of Bombay to review the judgement passed by the Sessions Judge
The Hon’ble High Court has the jurisdiction to hear the matter under Section 374(2) of the Criminal Procedure Code,
Section 374 appeal from conviction
In the present case act of the three accused brutally raping and murdering the deceased Sayali falls into the category of “rarest of rare” cases. It is significant to mention that there is no hard and fast criterion of “rarest of rare” cases and special circumstances has to be taken into consideration. However, Apex Court has time to time enumerated certain factors which have to be taken into consideration by court for putting an incident in category of “rarest of rare case” which are: manner of commission of the crime, socially abhorrent nature of the crime and such act which shocks the collective conscience of the community. In other words, it is the nature and gravity of the crime which are germane for consideration of appropriate punishment in a criminal trial. In the present case, act of the accused fulfils all the criterion of the doctrine of “rarest of rare” cases.
4)In addition to the above all three accused are habitual drinkers and have also have committed sexual assaults many times. If we see at the pattern of brutal rape and murder committed by them there is high probability that they will commit such heinous crime again.
The Apex Court has upheld the death penalty awarded to the accused of Nirbhaya rape-cum- murder case after calling it as “rarest of rare” case and extreme punishment is granted for the sake of ensuring justice. In a criminal trial, the nature and gravity of the crime are taken into consideration for determining a suitable punishment. The Court shall be deemed to have failed in discharging its duty if proportionate punishment has not been awarded for those
crimes which are committed not only against one particular individual but can be said to have been committed against the society at large. Therefore, weight age is given to the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”. [1] That is to say, the existence of such extraordinary grounds under which the Court has no other resort than to effect a capital punishment for the survival of the State as well as society.
Evolution of Rarest of Rare Doctrine
In Maneka Gandhi v Union of India , the Supreme Court has ruled that the death penalty can be awarded only in special cases. It constitutes an exceptional punishment which will be imposed only with special reason and must be properly conferred by the High Court.
In Rajendra Prasad v State of Uttar Pradesh , Justice Krishna Iyer observed that “ If the murderous operation of a die-hard criminal jeopardises social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated ”[5].
Iin Santosh Kumar Bariyar v. State of Maharashtra , Justice S B Sinha in his majority judgment has imposed a duty upon the court that “ appropriate punishment is to be determined on a case-by-case basis. The death sentence is not to be awarded save in the `rarest of rare’ case where reform is not possible .”
Basing reliance on Bachan Singh case, the following can be considered as aggravating circumstances:-
that it was a prima facie that three accused has committed rape and murder with common criminal intention falls under the category of rarest of rare cases.The three accused has got opportunity of being heard.The three accused were heard on the sentence and were represented by counsel of their own choice.Therefore it can be said that no prejudice has been caused to the appellants.
The three accused has got opportunity of being heard and they were represented by counsel of their choice.There has been no delay in hearing their matter and they have confessed to their crimes to Sessions court.The law sees Death penalty as the extreme means by which the convict is irreversibly removed from the society wherein he / she is deemed ‘not fit to live’. Put differently, ‘sentence to death’ is pronounced if and only if the convict, in the view of the Court, is so dangerous a threat to the society that his freedom, even in distant future, can’t be afforded. Moreover, by committing the crime that he / she is accused and found guilty of, the convict had violated the ‘right to life’ of the victim(s) thereof. By committing the crime, the criminal is deemed as having virtually forfeited his / her rights. Hence, the penalty imposed can’t be treated as violation of the convict’s rights.
The constitutionality of death sentence was canvassed for the first time before the apex court in the case of Jagmohan Singh v State of Uttar Pradesh. Section 302 of IPC was challenged as violative of Article 14, 19 and 21 of the Constitution. The Court upheld the sentence of death as constitutional and held, that even after assuming that right to life is the foundation stone of the freedom enumerated under Article 19 and that no law can be enacted which takes away the life of a person unless it is reasonable and in public interest. So, it is difficult to hold that capital punishment as such was unreasonable or not required in public interest. If the entire procedure for a criminal trial under the CrPC for arriving at a sentence of death is valid then the imposition of the death sentence in accordance with the procedure established by law cannot be said to be unconstitutional.
In Bachan Singh, the Supreme Court reaffirmed its earlier decision in Jagmohan case by 4: majority. It was argued that the Supreme Court in Maneka Gandhi v Union of India has given a new interpretative dimension to articles 14, 19 and 21, and their interrelationship in every law of punitive detention both in its procedural and substantive aspect must pass the test of all three articles. However, the Court rejected this argument. It was held that article 19 unlike article 21, does not deal with the right to life and personal liberty and is not applicable for judging the constitutionality of the provisions of section 302 IPC. As regards article 21, it was recognized that in the said article, the founding fathers recognized the right of the State
to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by law, and there are several indications in the Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty, such as, Entries 1 and 2 in List II, article 72(1)(c), article 161 and article 34.
In T.V. Vatheeswaram v State of T.N. , it was held that delay exceeding two years in the execution of death sentence entitles a convict to get it commuted to life imprisonment. But it was overruled in Sher Singh v State of Punjab , that no such limit could be fixed for the execution of death sentence without regard to the facts of every case.
Mukesh & Anr vs State for NCT of Delhi & Ors
The Supreme Court confirmed the death sentence awarded to the four convicts in the 16 December, 2012 gangrape and murder case, terming it the 'rarest of rare', most brutal, barbaric and diabolical attack on the 23-year-old paramedic student.
The case sent a "tsunami of shock" all over, the apex court said, adding that the convicts treated the victim as an object of enjoyment, with the single purpose of ravishing her.
A three-judge bench, through a unanimous verdict, upheld the Delhi High Court judgment that had concurred with the trial court decision.
Those who will face the gallows are Mukesh (29), Pawan (22), Vinay Sharma (23) and Akshay Kumar Singh
The Respondent, therefore, pray that:-