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DBRANLU 1st INTRA MOOT COURT COMPETITION 2019

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BEFORE THE HON’BLE SUPREME COURT OF INDIA


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VIRES OF SETION 29 AND SECTION 30 OF THE PROTECTION OF CHILDREN FROM


SEXUAL OFFENCES ACT (“POCSO”) 2012

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MR. RAMBO…………………………………………………………………..APPELLANT

V.

UNION OF INDIA…………………………………………………………RESPONDENT

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BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE

AND HIS COMPANION JUDGES OF

THE HON’BLE SUPREME COURT OF INDIA

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MEMORIAL ON THE BEHALF OF RESPONDENT

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MEMORIAL ON THE BEHALF OF RESPONDENT


DBRANLU 1st INTRA MOOT COURT COMPETITION 2019

TABLE OF CONTENTS
LIST OF ABBREVIATION:………………………………………………………………3

INDEX OF AUTHORITY:……………………………………………………………….5

STATEMENT OF JURISDICTION:…………………………………………………..

STATEMENT OF FACTS:………………………………………………………………

STATEMENT OF ISSUES:…………………………………………………………….

SUMMARY OF ARGUMENTS:……………………………………………….......

ARGUMENT ADVANCED:……………………………………………………………

ISSUE 1 ……………………………………………………………………………………

WHETHER SECTION 29 AND SECTION 30 OF Protection of Children


from Sexual Offences Act, 2012 IS VIOLATION OF MR. RAMBO’S
FUNDAMENTAL RIGHTS.

ISSUE 2 ……………………………………………………………………………….

GRANTING PERMISSION TO MR. RAMBO FOR A VOLUTARY NARCO


ANALYSIS/ POLYGRAPH/ BRAIN MAPPING TEST TO PROVE HIS
INNOCENCE.

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LIST OF ABBREVIATIONS:
Cr msc. Criminal Miscellaneous

A.I.R. All India Report

Del. Delhi

I.C. Indian Cases

r/w Read with

S.C. Supreme Court

Art. Article

V. Versus

u/s Under Section

Sec. Section

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INDEX OF AUTHORITIES:
[A].INDIAN CASE LAWS

1.

2.

[B].STATUTES

1.

2.

[C].BOOKS

1. CONSTITUTION OF INDIA BY J. N. PANDEY

[D].WEBSITES

1. WWW.MANUPATRA.COM

2. WWW.LAWLIVE.IN

3.WWW.INDIANKANOON.COM

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has jurisdiction to hear the


instant matter under
Section 29 and Section 30 of Protection of Children from Sexual Offences
Act (Pocso), 2012.

Article 32 of the Constitution of India reads as:

Art. 32 :: Remedies for enforcement of rights conferred by this Part

1) The right to move the Supreme Court by appropriate proceedings for the
enforcement

of the rights conferred by this Part is guaranteed.

2) The Supreme Court shall have power to issue directions or orders or writs,
including

writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and

certiorari, whichever may be appropriate, for the enforcement of any of the rights

conferred by this Part.

3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and

(2), Parliament may by law empower any other court to exercise within the local
limits of

its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause

(2).

4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution.

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Section 29 of Protection of Children from Sexual Offences Act (Pocso) reads as:

where a person is prosecuted for committing or abetting or attempting to commit any offence
under section 3, 5, 7 and section 9 of this Act, the Special court shall presume, that such person
has committed or abetted or attempted to commit the offence, as the case may be , unless the
contrary is proved.

Section 30 of Protection of Children from Sexual Offences Act (Pocso) reads as:

(1). In any prosecution for any offence under this Act which require a culpable mental state
on the part of the accused, the Special court shall presume the existence of such mental
state but it shall be a defense for the accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in that prosecution.

(2). For the purposes of this section, a fact is said to be proved only when the Special Court
believes it to exist beyond reasonable doubt and not only merely when its existence is
established by a preponderance of probability.

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STATEMENT OF FACTS

1. On 12.01.2018 Chintu a boy aged 11 years, made an allegation of sexual abuse

against his tutor Mr. Rambo ( India citizen who used to take his private classes for

Mathematics.

2. On 12.01.2018,upon returning from his tuition, Chintu who was then crying loudly

alleged that between 6:00 - 7:00 pm Mr. Rambo had inserted a pencil in his anus. The

said allegation was narrated by Chintu to his parents. Upon hearing of the said incident,

Chintu's parents rushed to Mr. Rambo's house situated 300 mts from their residence.

Upon arriving at Mr. Rambo's house, they discovered that he was putting away a

blackboard containing some Mathematics problems. Thereafter, Chintu's parents started

thrashing Mr. Rambo. Upon hearing the commotion, police arrived at the scene of crime

and took away Mr. Rambo, Chintu's parents and Chintu to the Police Station.

3. Thereafter the Police recorded the statements of Chintu's parents, Mr. Hari and Mr.

Raja (who had seen Chintu leave Mr. Rambo's house crying) and Chintu. Thereafter on

the same day an FIR was registered against Mr. Rambo under Section 6 of the Protection

of Children from Sexual Offenses Act, 2012 [ ''POCSO, 2012'' ] and Section 377 r/w

Section 511 of the Indian Penal Code, 1860 [''IPC, 1860''] and Mr. Rambo was taken

into custody and has since been in jail.

4. Thereafter, Chintu's medical examination was conducted at SUPERMAN MEDICAL

HOSPITAL. Upon Chintu's medical examination the doctor issued a Medicolegal Certificate

being MLC no. 98765/18 wherein he noted ''THERE ARE NO SIGNS WHICH SUGGESTS

INSERTION OF PENIS OR PENIS LIKE OBJECT INTO ANAL CAVITY, CERTAIN REDDISHNESS

OBSERVED AROUND THE ANAL CAVITY''.

5. The Prosecuting Agency conducted an investigation and recorded statements of

Chintu, his mother, father, Mr. Raja and Mr. Hari under Section 161 of the Code of

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Criminal Procedure, 1973 (''CrPC, 1973'') . Further Chintu's statement under Section 164

of CrPC, 1973 was recorded wherein he narrated the above-mentioned incident.

Thereafter Charge sheet. (Final Report under Section 173 of CrPC, 1973 dated

10.03.2018 for the offences punishable under Section 377 and Section 511 of the IPC,

1860 and Section 6 of the POCSO Act was filed in the Court of the Ld. Additional Session

Judge, Delhi ( ''LD. ASJ'') .

6. The Ld. ASJ was pleased to take cognizance of the offences as alleged within the said

Final Report. Mr. Rambo pleaded not guilty and the Ld. ASJ proceeded to frame charges

against Mr. Rambo under Section 6 read with Section 5 of the POCSO, 2012 and under

Section 377 and Section 511 of the IPC.

7. Mr. Rambo filed a bail application along with an application requesting the Processing

Agency to conduct the Polygraph/Narco-analysis/ Brain Mapping Test in order to rebut

the presumption against himself. The Ld. ASJ relying upon Section 29 read with Section

30 of POCSO, 2012 rejected the bail application filed by Mr. Rambo. The Ld. ASJ

dismissed the application under Section 173(8 CrPC, 1973 seeking that his

Polygraph/Narco-analysis/Brain Mapping Test be conducted stating that the same was

inadmissible.

8. During the trial, the evidence of all the prosecution witnesses namely. PW 1 Chintu's

mother ( narrated that Chintu, came home crying and narrated the alleged incident ,

PW 2 Chintu's father ( narrated that Chintu came home crying and narrated the alleged

incident , PW 3 Chintu ( narrated the alleged incident , PW 4 Hari ( narrated that Chintu

left home crying ,PW 5 Raja ( narrated that Chintu leave home crying , PW 6 the Doctor

( exhibited the Medicolegal Report and PW 7 the Investigating Officer ( narrated the

entire process of investigation and exhibited all arrest memos, seizure memos, site plan

etc was recorded. It may be noted, that since Chintu was in the private tuition, only he

narrated the alleged incident in his evidence, all the other witnesses only arrested to his

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conduct upon him leaving Mr. Rambo's house.

9. During cross-examination, Chintu narrated that he had failed to do his homework as

given by Mr. Rambo on 11.01.2018. Chintu's parents denied having any altercation with

Mr. Rambo regarding fees. The fees register seized during the investigation from Mr.

Rambo's house indicates that Chintu's parents have not paid fees for the last five

months.

10. In his statement under Section 313 of the CrPC, 1973, Mr. Rambo stated that he did

not do the alleged act, and that he had been falsely accused of the said offence on

account of the altercation between Mr. Rambo and Chintu's parents regarding his fees,

and that he had slapped Chintu as he had not done the homework given to him on

11.01.2018.

11. Thereafter realizing that on account of the presumption under Section 29 read with

Section 30 it would be impossible to prove the negative that the alleged act had never

taken place, Mr. Rambo approached the Hon'ble Supreme Court of India under Article 32

of the Constitution of India to allow him to conduct a Polygraph/Narco-analysis/Brain

Mapping Test in order to prove his innocence.

12. On the first date of hearing i.e. 18.02.2019 notice was issued to the Union of India

and eight week time was granted for completion of pleadings. Pursuant to the

completion of pleadings on 20.04.2019 parties were heard by the Hon'ble Court and the

matter is put up for final arguments from 03.09.2019 to 05.09.2019. Further, the

parties are required to provide written submission in support of their, arguments on

the following issues.

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ISSUES

1) Whether Section 29 and Section 30 of POCSO, 2012 are in


violation of fundamental right of Mr. Rambo?

2) In alternative whether Mr. Rambo can be permitted to conduct


a voluntary Polygraph/Narco-analysis/Brain mapping Test in order
to prove his innocence?

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SUMMARY OF ARGUMENTS
Issue 1.
Whether Section 29 and Section 30 of POCSO, 2012 are in
violation of fundamental right of Mr. Rambo?
In this Act both the sections, section 29 and section 30 are not violation of
fundamental right of Mr. Rambo as because this case is not any ordinary
case of criminal cases where accused is not presumed to be guilt until the
guilt is proved against him which is mentioned in our law that is
“presumption of innocence” but here the case is against a child, who is just
eleven year old. Now as our law these kind of cases against children are
considered different from others criminal cases so these kind of cases are
dealt with “presumption of guilt”.

As in Article 32 Mr. Rambo approached the Supreme court of India says that
- The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed. But as the
right of convicted person mentioned in Fundamental right of our Constitution
which is Article 20 says that:

Protection in respect of conviction for offences:


1. No person shall be convicted of any offence except for violation of the law
in force at the time of the commission of the act charged as an offence, nor
be subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence.
2. No person shall be prosecuted and punished for the same offence more
than once.
3. No person accused of any offence shall be compelled to be a witness
against himself.

From here convicted person get more right which are mentioned in Code of
Criminal procedure.

But in this case conditions are different because the victim is a child not an
adult who are capable of understanding, capacities.

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So this pair-presumption under section 29 & 30 POCSO Act is a


complementary set of presumptions. This pair at first place makes a
presumption in favor of the victims who are children under the age of
eighteen years to absolve their burden of making their stand intact during
the legal intricacies during the course of trial. The first set out of this pair-
presumption takes care of the child who is victim of a sexual offence and has
limited capacities and capabilities of appreciation and understanding. A child
in quite incapable of appreciating and understanding the mental states of
others and even of himself. In all cases or most of the cases, in absence of
such a pair-presumption the victim might not find itself to give a complete
account of mental state and mental elements of the accused the victim
might have come across during the commission of the offence. Such
contingencies would have frustrated the legislation of the POCSO Act. The
legislature with a view to ensure the proper and smooth functioning of the
Act has provided this pair-presumption. This is just to ensure the just ends
of the statute.

Issue 2

In alternative whether Mr. Rambo can be permitted to


conduct a voluntary Polygraph/Narco-analysis/Brain
mapping Test in order to prove his innocence?
The apex court overruled various high court judgments and decided that use
of narco analysis, polygraph, and brain mapping test violated subject's right
against self-incrimination in contravention to Article 20(3) of Indian
Constitution. The article states that '' No person accused of an offence shall
be compelled to be a witness against himself ''.

As these test doesn’t guarantee that the person will always speak truth
that’s why these kind of test are not always admissible in court.

Narco-analysis: This test involves the intravenous administration of a drug


(such as sodium pentothal, scopolamine and sodium amatol) that causes the
subject to enter into various stages of anesthesia. In the hypnotic stage, the
subject becomes less inhibited and is more likely to divulge information,
which would usually not be revealed in the conscious state. He or she may
also divulge all his/her fantasies, personal wishes, impulses, instinctual

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drive, illusions, delusions, conflicts, misinterpretations, etc. The main


drawback of this technique is that some persons are able to retain their
ability to deceive even in the hypnotic state, while others can become
extremely suggestible to questioning. This is especially worrying, since
investigators may frame questions in a manner that may prompt
incriminatory responses. The drugs used do not guarantee that the subject
will speak only the truth. The statements made in a hypnotic state are not
voluntary and are also not in a clear state of mind; hence these have not
been admitted as evidence in the court of law. Narco-analysis “without
consent” raises certain issues such as (i) a physical assault on the body by
giving injections and also multiple painful stimuli such as slapping, pinching,
pushing, hitting, shaking the body and so forth to wake a person from
hypnotic state to answer the questions, and (ii) mental assault through the
effect of the injection on his/her mind and also an unrestricted access to the
utmost privacy, the privacy of his/her own mind. In the era of evidence-
based medicine, it does not have any significant role in the treatment of any
psychiatric conditions. Though this technique is known since the Second
World War, it has not been supported with adequate research to justify its
claim.
Polygraph: This is also called a lie detector test, but this term is a misnomer.
The theory behind polygraph tests is that a guilty subject is more likely to be
concerned with lying about the relevant facts about the crime, which in turn
produces a hyper-arousal state which is picked up by a person trained in
reading polygraph results. Measurement of hyper-arousal state is based on a
number of parameters such as heart rate, blood pressure, respiratory rate,
skin conductance and electromyography. The principle behind these tests is
questionable because the measured changes in arousal state are not
necessarily triggered by lying or deception. Instead, these could be triggered
by nervousness, anxiety, fear, confusion, hypoglycemia, psychosis,
depression, substance induced (nicotine, stimulants), substance withdrawal
state (alcohol withdrawal) or other emotions. This state has also been
attributed to the way the questions are asked by the investigating officers.
At the same time, it is not difficult to beat polygraph tests by a trained
person, who is able to control or suppress his/her arousal symptoms through
relaxation exercises, Yoga, meditation, etc. Hence, the reliability of the
polygraph test has been repeatedly questioned in empirical studies.
Brain mapping: It measures the changes in the electrical field potentials
produced by the sum of the neuronal activity in the brain by means of
electrodes placed on the surface of the skin covering the head and face. The
changes directly related to specific perceptual or cognitive events are called
event-related potentials. In simple words, it is based on the finding that the
brain generates a unique brain-wave pattern when a person encounters a

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familiar stimulus. Commonly used method in India is called as Brain


Electrical Activation Profile test, also known as the ‘P300 Waves test’.
During the test, subjects are exposed to auditory or visual stimuli (pictures,
videos and sounds) that are relevant to the facts being investigated
alongside other irrelevant words and pictures. Such stimuli can be broadly
classified as material ‘probes’ and neutral ‘probes’. The underlying theory is
that in the case of guilty suspects, the exposure to the material probes will
lead to the emission of P300 wave components which will be duly recorded
by the instruments. By examining the records of these wave components,
the examiner can make inferences about the individual's familiarity with the
information related to the crime. However, this measures only the memory
or knowledge of the crime scene and nothing else. For instance, a by-
stander who witnessed a murder could potentially be implicated as an
accused if the test reveals that the said person was familiar with the
information related to the same. Similarly, little is known about the impact
of viewing portrayal of crime scene in the media such as television, movies
and newspaper on brain mapping. Hence, this test cannot be used to
prosecute an accused but can be used by an innocent as an ‘alibi’ by proving
that he/she does not have any memory about the crime on this test.

In conclusion, DDT has faced a number of criticisms and it is still unclear to


what degree lie detectors and brain mapping can be used to reveal
concealed knowledge in applied real-world settings. The Supreme Court
judgment on involuntary DDTs is that it has no place in the judicial process.
On the contrary, it will disrupt proceedings, cause delays, and lead to
numerous complications which will result in no greater degree of certainty in
the process than that which already exists. Contemporary DDT needs to
undergo rigorous research in normative and pathological populations.
Premature application of these technologies outside research settings should
be resisted. The vulnerability of the techniques to countermeasures also
needs to be explored. It is also important to know the sensitivity and
specificity of these tests. There should be standard operating guidelines for
conducting DDT. The recent Supreme Court judgment on DDT is admirable
from the scientific, human rights, ethical, legal and constitutional
perspectives.
Even in some cases Supreme court also dismissed the petition of accused for
narco-analysis/polygraph/brain mapping test that is
“Sidhu yadav vs. state of NCT of Delhi” bench of Chief just. Dipak mishra
and Just. A.M.Khanwilkar and Just. D.Y.Charndrachud
In this case SC dismissed the plea of petitioner of the same case

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They also cited some cases to link the case which are as followed
“shyam charan dubey vs. state of uttar Pradesh”
In this case justice P. Basu stated that Neither the prosecution, that is,
informant, nor the accused could claim as a matter of right a direction from
the court commanding further investigation officer under section 173(8)
Cr.P.C. after a charge sheet had been filed.
The trial also relied on the privy council judgement in “Stephen v The king
(1936) wherein it has been held that it is wrong idea that the prosecution
should discharge the function both of prosecution and defence: it if does so,
confusion is very apt. to result.

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PRAYER

Wherefore in the light of the Issues Raised, Argument


Advanced and Authorities Cited,
the Hon’ble Supreme Court may be pleased to:

1.Declare that Section 29 and Section 30 of Protection of Children


from Sexual Offences Act (Pocso) Act,2012 does not violate
fundamental right of Mr. Rambo.

2.Does not permit Mr. Rambo to conduct voluntary


Polygraph/Narco-analysis/Brain mapping Test in order to prove
innocence.

AND/OR

Pass any other order, direction or relief that it deems fit in the

interest of Justice, Equity and Good Conscience .

For this act of kindness, the Appellants shall duty bound forever

Pray.

Sd/-

(Counsel for the Respondent)

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