R-7

IN THE SUPREME COURT OF INDIANA

IN THE CASE CONCERNING

Central Bureau of Investigation………….……..APPELLANT

V.
Pt. Kali Charan and Ors……………….…….RESPONDENT
(Cr. App. No. 1028 of 2018)
&
Pt. Kali Charan…………………………….….PETITIONER
V.
State of Indiana……………………………..RESPONDENT
(C. P. No. 111 of 2018)

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ II

LIST OF ABBREVIATIONS ....................................................................................................... IV

LIST OF AUTHORITIES............................................................................................................. VI

STATEMENT OF JURISDICTION.......................................................................................... VIII

STATEMENT OF FACTS ........................................................................................................... IX

ISSUES RAISED .......................................................................................................................... XI

SUMMARY OF ARGUMENTS ................................................................................................. XII

ARGUMENTS ADVANCED ........................................................................................................ 1

1. THAT PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM

ENTERING THE LORD JOGESHWARA TEMPLE IS NOT VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF INDIANA,
AND THE CLAIM FOR EXCLUSION OF WOMEN FROM RELIGIOUS WORSHIP
FOUNDED IN RELIGIOUS TEXT IS SUBORDINATE TO THE CONSTITUTIONAL
VALUES OF LIBERTY, DIGNITY AND EQUALITY ........................................................... 1

1.1. THAT THE INSTITUTION HAS A RIGHT TO MANAGE ITS OWN RELIGIOUS
AFFAIRS ................................................................................................................................. 1

1.2. THAT RELIGIOUS FREEDOM IS SUBJECT TO REASONABLE

RESTRICTIONS ..................................................................................................................... 3

1.3. THAT RELIGIOUS CUSTOMS ARE IMMUNE FROM BEING CHALLENGED

UNDER PART III OF THE INDIAN CONSTITUTION ....................................................... 5

1.4. THAT THE PREVAILING PRACTICE HAS BECOME USAGE AND CUSTOM . 6

1.5. THAT RELIGION IS A MUCH WIDER CONCEPT ................................................. 7

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2. THAT THE ACCUSED ARE NOT GUILTY OF ABDUCTION AND MURDER OF

REEMA AND RIYA .................................................................................................................. 8

2.1. THAT THE CASE IS BEYOND REASONABLE DOUBT ....................................... 9

2.2. THAT THERE IS UNRELIABILITY ON THE PART OF THE WITNESSES ....... 10

2.3. THAT THE GUILT CANNOT BE SOLELY BASED ON SUSPICION ................. 11

2.4. THAT THE CHAIN OF EVENTS IS NOT COMPLETE ......................................... 12

2.5. THAT THE ESSENTIALS OF CRIMINAL CONSPIRACY ARE NOT BEING

FULFILLED .......................................................................................................................... 14

3. THAT THE ACCUSED ARE NOT GUILTY FOR COMMITTING RAPE OF RIYA .. 15

3.1. THAT THE CASE CANNOT BE BASED ON CIRCUMSTANTIAL EVIDENCE 15

3.2. THAT DNA EXAMINATION IS NECESSARY TO ESTABLISH GUILT ............ 17

PRAYER ....................................................................................................................................... 18

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LIST OF ABBREVIATIONS

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Cr.P.C. Code of Criminal Procedure

CriLJ Criminal Law Journal

FIR First Information Report

HC High Court

Hon‟ble Honourable

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IPC Indian Penal Code

LRs
Lawyers

Ors. Others

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

V. Versus

Vol.
Volume

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LIST OF AUTHORITIES

Cases

Balvinder Singh v. State of Punjab ......................................................................................... 12, 13

Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa .......................................................................... 6
Bodh Raj v. State of Jammu and Kashmir .............................................................................. 12, 15
Chandra Mohan Tiwari And Anr vs State Of Madhya Pradesh ................................................... 10
Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra .................................................. 11
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt .................................................................................................................... 2, 3, 7
Dr. Subramanian Swamy v. State of T.N. & Ors. ....................................................................... 2, 3
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. ................................................ 2, 3
Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors. ..................................................... 6
Gambhir v. State of Maharashtra .................................................................................................. 13
Nirmal Kumar v. State of UP .......................................................................................................... 9
Padala Veera Reddy v. State Of Andhra Pradesh ......................................................................... 11
Palvinder Kaur v. The State of Punjab.......................................................................................... 11
Prem Thakur v. State of Punjab .............................................................................................. 12, 13
Ram Sunder Sen vs Narendra @ Bode Singh Patel & Anr .......................................................... 16
Rama Nand and Ors. v. State of Himachal Pradesh ............................................................... 12, 13
Riju Prasad Sharma & Ors. v. State of Assam & Ors. .................................................................... 5
S. P. Mittal v. Union of India & Ors. .............................................................................................. 2
Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. ..................................................................... 6
Sharad Birdhichand Sarda v. State of Maharashtra ...................................................................... 11
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. ....................................................... 7
State (NCT of Delhi) v. Navjot Sandhu ........................................................................................ 14
State Of Gujarat vs Ratansingh @ Chinubhai Anopsinh .............................................................. 16

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State of UP v. Dr. Ravindra Prakash Mittal .................................................................................... 9

Subramaniam Swamy v. A Raja ................................................................................................... 14
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. ............................................. 7

Constitutional Provisions

Article 13(1) .................................................................................................................................... 5

Article 13(3)(a) ............................................................................................................................... 6
Article 25 .................................................................................................................................... 3, 4
Article 25(1) .................................................................................................................................... 3
Article 25(2)(b) ............................................................................................................................... 4
Article 26(b) .................................................................................................................................... 1

Books

Basu, Durga Das, Shorter Constitution of India, Vol. 1, Lexis Nexis, 2011. ................................. 4
Basu, Durga Das, Shorter Constitution of India, Vol. 1, LexisNexis, 2011. .................................. 6
Pal, Samaraditya, India‟s Constitution (Origins and Evolution), Vol. 2, LexisNexis, 2015. ..... 1, 4
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 2017. ...................................... 8, 13, 15
Ratanlal & Dhirajlal, The Law of Evidence, LexisNexis, 2017. .................................................... 9
Ratanlal & Dhirajlal. The Code of Criminal Procedure. LexisNexis. 2018. ................................ 16

Journals

Shivangi Vyas, Critical Analysis of the Relevancy of the Medical and Forensic Evidences in the
Rape Cases ................................................................................................................................ 17

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STATEMENT OF JURISDICTION
The respondents have appeared before the Hon‟ble Supreme Court of Indiana in response to the
appeal filed by the appellant under Article 134 of the Constitution of India, and as a petitioner, in
Curative Petition filed under Article 137 of Indian Constitution. The memorandum of the
respondent sets forth the facts, contentions and arguments for the respondent in the present case.

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STATEMENT OF FACTS
BACKGROUND

Indiana is a land locked country in Central Asia comprising of 7 states, which consists of various
ethnic religions. Constitution of Indiana protects matters of religious doctrine or belief, as well
as, acts done in pursuance of religious rituals, observances, ceremonies and modes of worship.
Arya Pradesh is the largest state in Indiana both in terms of area and population. 80% of the
people residing in Arya Pradesh are disciples of Lord Jogeshwara whose temple is situated at
Katra. Lord Jogeshwara Trust is the governing and administrative body devoted towards
development of Lord Jogeshwara and all other temples in the premises of 1001 acres of land
named as Jogeshwara Akhada. Lord Jogeshwara is a deity depicting a hyper masculine God born
out of union of two male gods. The deity in the temple is in the form of Yogi or Bramhachari .

RESTRICTIONS ON ENTRY OF WOMEN

Since the deity is in the form of Nasthik Bramharya, it is therefore believed that young women
between the ages of 11 to 51 years should not offer worship in the temple. The people firmly
believe that if these women are allowed to offer prayers in the temple, then celibacy and austerity
observed by Lord Jogeshwara will be curtailed and the temple will lose its ancient cultural and
religious significance. Principles of religious tolerance and secular nature of Indiana‟s polity are
the essential elements of Constitution of India. The Parliament of Indiana, considering it
necessary and expedient in national interest enacted the Lord Jogeshwara Temple (Prohibition on
Entry of Women) Act in 1985.

DISPUTE

In the name of a NGO „KADAM EK PEHAL‟, a PIL was filed before the Supreme Court of
Indiana seeking issuance of direction to ensure entry of female devotees between the age group

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of 11 to 51 years to Lord Jogeshwara temple at Katra which had been denied to them, customs
and usages as unconstitutional being violative of fundamental rights, and pass directions for the
safety of women pilgrims. Hon‟ble Supreme Court of Indiana pronounced judgment with 2:1
majority and held that every place of worship shall be open to all classes and sections of people,
women being one of them, irrespective of any custom or usage to the contrary.

PUBLIC UNREST

Reema and Riya, along with some other women, tried to enter Lord Jogeshwara Temple for
offering prayers. They were stopped by protesters, including men and women, who were
shouting about the dire consequences if the women were to enter the temple. The next day, Mrs.
Radha, the mother of Reema and Riya, went to lodge a missing complaint of her daughters.
While patrolling, the police discovered a suspicious SUV in an abandoned jungle, near Mohini
Bazar. The next morning, Pt. Kali Charan called the police and informed about a dead body lying
near the Sanctum Sanctorum of the Temple. Mrs. Radha identified the body as that of Reema.
On the request of Mrs. Radha, a FIR was lodged against Pt. Kali Charan, Bhanu, Kalu, Bhawani
and Jagga, and the police subsequently arrested them . Later, a dead body was discovered from
the jungle near Mohini Bazar, which was of Riya . All the accused were subsequently charged
for rape and murder. The government of Indiana ordered CBI inquiry into the incident.

JUDGEMENT

The matter was tried by CBI court and the court found all accused guilty of abduction and
murder of Reema and Riya. An appeal was made against the order before the High Court,
whereby the High Court reversed the order of the Trial Court and acquitted all the accused on the
grounds that the prosecution had failed to establish its case beyond all reasonable doubts.

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ISSUES RAISED

-I-

Prohibiting women of a particular age group from entering the Lord Jogeshwara Temple is not
violative of the Fundamental Rights enshrined under the Constitution of Indiana, and the claim
for exclusion of women from religious worship founded in religious text is subordinate to the
Constitutional values of Liberty, Dignity and Equality.

-II-

The accused are not guilty of the abduction and murder of Reema and Riya

-III-

The accused are not guilty of committing rape of Riya

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SUMMARY OF ARGUMENTS

I. WHETHER PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM

ENTERING THE LORD JOGESHWARA TEMPLE IS NOT VIOLATIVE OF THE
FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF INDIANA,
AND THE CLAIM FOR EXCLUSION OF WOMEN FROM RELIGIOUS WORSHIP
FOUNDED IN RELIGIOUS TEXT IS SUBORDINATE TO THE CONSTITUTIONAL
VALUES OF LIBERTY, DIGNITY AND EQUALITY

It is humbly submitted before this Hon‟ble Court that in the instant matter: (1) the institution has
a right to manage its own religious affairs; (2) religious freedom is subject to reasonable
restrictions; (3) religious customs are immune from being challenged under Part III of the Indian
Constitution; (4) the prevailing practice has become usage and custom and (5) religion is a much
wider concept.

II. WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF

REEMA AND RIYA

It is submitted before this Hon‟ble Court that, under Section 302 and 364 of the IPC, the accused
are not guilty for the abduction and murder of Reema and Riya. The accused are also not liable
for criminal conspiracy under Sec. 120B of the IPC. The guilt in the instant matter cannot be
established as: (1) the case is beyond reasonable doubt; (2) there is unreliability on the part of the
witnesses; (3) the guilt cannot be solely based on suspicion; (4) the chain of events is not
complete and (5) the essentials of criminal conspiracy are not being fulfilled.

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III. WHETHER THE ACCUSED ARE GUILTY FOR COMMITTING THE RAPE OF RIYA

It is humbly submitted before this Hon‟ble Court that the accused are not guilty for committing
the rape of Riya under Sec. 376-D of the IPC as: (1) the case cannot be based on circumstantial
evidence and (2) DNA examination is necessary to establish guilt.

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ARGUMENTS ADVANCED

1. THAT PROHIBITING WOMEN OF A PARTICULAR AGE GROUP

FROM ENTERING THE LORD JOGESHWARA TEMPLE IS NOT
VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED UNDER
THE CONSTITUTION OF INDIANA, AND THE CLAIM FOR
EXCLUSION OF WOMEN FROM RELIGIOUS WORSHIP FOUNDED
IN RELIGIOUS TEXT IS SUBORDINATE TO THE
CONSTITUTIONAL VALUES OF LIBERTY, DIGNITY AND
EQUALITY

It is humbly submitted before this Hon‟ble Court that in the instant matter: (1) the institution has
a right to manage its own religious affairs; (2) religious freedom is subject to reasonable
restrictions; (3) religious customs are immune from being challenged under Part III of the Indian
Constitution; (4) the prevailing practice has become usage and custom and (5) religion is a much
wider concept.

1.1. THAT THE INSTITUTION HAS A RIGHT TO MANAGE ITS OWN

RELIGIOUS AFFAIRS

Under Art. 26(b)1 of the Constitution of India, the Lord Jogeshwara Trust has a right to manage
its own religious affairs, without state interference. Under this Article, as well as in the case of

1
Pal, Samaraditya, India‟s Constitution (Origins and Evolution), Vol. 2, LexisNexis, 2015.

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S. P. Mittal v. Union of India & Ors.2, in order to constitute a “religious denomination”, the three
conditions are-

(a) It must be a collection of individuals who have a set of beliefs or doctrines which they
regard as conducive to their spiritual well-being, i.e. a common faith.
(b) A common organization.
(c) Designation by a distinctive name.

In the instant case, the people in the Lord Jogeshwara Temple follow a common faith whereby
they all worship Lord Jogeshwara in the form of a Nasthik Brahmachari. It is therefore believed
that young women between the ages of 11 to 51 years should not offer worship in the temple, so
that even the slightest deviation from celibacy and austerity observed by the deity is not caused
by the presence of such women. In short, women after menarche up to menopause are not
entitled to enter the temple and offer prayer at any time of the year. The people of Arya Pradesh
firmly believe and promote this notion that if they are allowed to offer prayers in the temple, then
celibacy and austerity observed by Lord Jogeshwara will be curtailed and the temple will lose its
ancient cultural and religious significance3. They have a common organization, which is
designated by a distinctive name as “Lord Jogeshwara Trust”, which is the governing and
administrative body devoted towards the development of Lord Jogeshwara Temple, and all the
other temples in the premises of 1001 acres of land named as Jogeshwara Akhara.

Religious maths, religious sects, religious bodies, sub-sects or any section thereof have been held
to be religious denominations, according to Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt4; Durgah Committee, Ajmer &
Anr. v. Syed Hussain Ali & Ors.5, and Dr. Subramanian Swamy v. State of T.N. & Ors.6

2
S. P. Mittal v. Union of India & Ors. (1983) 1 SCC 51.
3
¶3, Moot proposition.
4
Commissioner., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
1954 AIR 282.
5
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors, 1961 AIR 1402.
6
Dr. Subramanian Swamy v. State of T.N. & Ors. (2014) 5 SCC 75.

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In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors7., this Court was called upon to
decide the Constitutionality of the Durgah Khwaja Saheb Act, 1955 in view of Articles 25 and
26, inter alia, at the instance of Khadims of the Tomb of Khwaja Moin-ud-din Chisti of Ajmer.
The Khadims claimed to be a part of a religious denomination by the name of Chishtia Soofies.

In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of

Sri Shirur Mutt8, the Court held that each of the sects or sub-sects of the Hindu religion could be
called a religious denomination, as such sects or sub-sects, had a distinctive name.

In Dr. Subramaniam Swamy v. State of Tamil Nadu9, the Podhu Dikshitars were held to
constitute a religious denomination in the context of the Sri Sabanayagar Temple at
Chidambaram.

1.2. THAT RELIGIOUS FREEDOM IS SUBJECT TO REASONABLE

RESTRICTIONS

Unlike Art. 25, which is subject to the other provisions of Part III of the Constitution, Art. 26 are
subject only to public order, morality, and health, and not to the other provisions of the
Constitution. As a result, the Fundamental Rights of the denomination is not subject to Articles
14 or 15 of the Constitution.

With respect to Art. 25(1), it was submitted that the worshippers of Lord Jogeshwara are entitled
to the freedom of conscience, and the right to profess, practice and propagate their religion. The
right to profess their faith by worshipping at the Lord Jogeshwara Temple, can be guaranteed
only if the character of the deity as a „Nasthik Brahmachari‟ is preserved. If women between the
ages of 11 to 51 years are permitted entry, it would result in changing the very nature of the

7
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors, 1961 AIR 1402.
8
Commissioner., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
1954 AIR 282.
9
Dr. Subramanian Swamy v. State of T.N. & Ors. (2014) 5 SCC 75.

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deity, which would directly impinge on the right of the devotees to practice their religion
guaranteed by Art. 25(1)10 of the Constitution.

The right of the devotees under Art. 25(1) cannot be made subject to the claim of the petitioners
to enter the temple under Articles 14 and 15 of the Constitution, since they do not profess faith in
the deity of this Temple, but claim merely to be social activists.

Art. 25(2)(b)11 declares that nothing in Art. 25(1) shall prevent the State from making any law
providing for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus. The „throwing open‟ to „all classes and
sections of Hindus‟ was intended to redress caste based prejudices and injustices in society.

Art. 25(2)(b) cannot be interpreted to mean that customs and usages forming an essential part of
the religion, are to be overridden. Art. 25(2)(b) would have no application since there is no ban,
but only a limited restriction during the notified period, based on faith, custom and belief, which
has been observed since time immemorial.

In the instant case, when Reema and Riya tried to enter the Lord Jogeshwara Temple, a group of
protestors tried stopping them by shouting that „IF ANY WOMEN WILL STEP INTO THE
TEMPLE OF LORD JOGESHWARA SHE WILL FACE DIRE CONSEQUENCES AND
THEIR ENTIRE FAMILY WILL BE KILLED‟. This led to a hindrance in the public order, and
since such a step of allowing women inside the temple was not welcomed by the devotees, it led
to discontent among the people. Hence, even allowing women from the age of 11 to 51 were
allowed on the grounds of religious freedom, it has to be subjected to the reasonable restrictions
mentioned under Art. 25 of the Constitution of India, on the account of public order.

Also, in this case, the right to freely practice one‟s religion under Art. 25(1), which the sub-
clause requires to be exercised subject to „morality‟, should in fact be subject to „public
morality‟. Here, constitutional morality cannot be accorded superiority over the morality of the

10
Pal, Samaraditya, India‟s Constitution (Origins and Evolution), Vol. 2, LexisNexis, 2015.
11
Basu, Durga Das, Shorter Constitution of India, Vol. 1, LexisNexis, 2011.

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society and that of the religious institution.

1.3. THAT RELIGIOUS CUSTOMS ARE IMMUNE FROM BEING

CHALLENGED UNDER PART III OF THE INDIAN CONSTITUTION

According to Art. 13(1), all laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void. “Law” includes any ordinance, order, by-
law, rule, regulation, notification, custom or usages having in the territory of India the force of
law.

However, Art. 13(1) applies only to such pre-constitution laws including customs which are
inconsistent with the provisions of Part III of the Constitution and not to such religious customs
and personal laws which are protected by the fundamental rights such as Articles 25 and 26. In
other words, religious beliefs, customs and practices based upon religious faith and scriptures
cannot be treated to be void. Religious freedoms protected by Articles 25 and 26 can be curtailed
only by law, made by a competent legislature to the permissible extent.

In the instant matter, reliance can be placed on the case of Riju Prasad Sharma & Ors. v. State of
Assam & Ors.12, whereby the SC held that just by the virtue of being a religious custom, it is
immune from being challenged under Part III of the Indian Constitution.

12
Riju Prasad Sharma & Ors. v. State of Assam & Ors.(2015) 9 SCC 461.

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1.4. THAT THE PREVAILING PRACTICE HAS BECOME USAGE AND

CUSTOM

Any practice started in hoary antiquity, and continued since time immemorial without
interruption, becomes a usage and custom. Reliance can be placed on cases like Ewanlangki-E-
Rymbai v. Jaintia Hills District Council & Ors.13, Bhimashya & Ors. v. Janabi (Smt) Alia
Janawwa14, and Salekh Chand (Dead) by LRs v. Satya Gupta & Ors.15

The custom and usage of restricting the entry of women in the age group of 11 to 51 years
followed in the Lord Jogeshwara Temple is pre-constitutional. As per Art. 13(3)(a)16 of the
Constitution, “law” includes custom or usage, and would have the force of law.

The characteristics and elements of a valid custom are that it must be of immemorial existence, it
must be reasonable, certain and continuous. The customs and usages, religious beliefs and
practices as mentioned above are peculiar to the Lord Jogeshwara Temple, and have admittedly
been followed since centuries.

The exclusion of women in this Temple is not absolute or universal. It is limited to a particular
age group in one particular temple, with the view to preserve the character of the deity. Women
outside the age group of 11 to 51 years are entitled to worship at the Lord Jogeshwara Temple.
The usage and practice is primarily to preserve the sacred form and character of the deity. Such
objection to this custom is not being raised by the worshippers of Lord Jogeshwara, but by social
activists.

The restriction on entry of women is a part of the essential practice of this Temple, and the
pilgrimage undertaken. It is clearly intended to keep the pilgrims away from any distraction
related to sex, as the dominant objective of the pilgrimage is the creation of circumstances in all
respects for the successful practice of the spiritual self-discipline.

13
Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors. (2006) 4 SCC 748.
14
Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa (2006) 13 SCC 627.
15
Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. (2008) 13 SCC 119.
16
Basu, Durga Das, Shorter Constitution of India, Vol. 1, LexisNexis, 2011.

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The limited restriction on the entry of women from 11 to 51 years, in the Lord Jogeshwara
Temple is a matter of „religion‟ and „religious faith and practice‟, and the fundamental principles
underlying the „prathishtha‟ (installation) of the Lord Jogeshwara Temple, as well as the custom
and usage of worship of the deity - Lord Jogeshwara.

A religion can lay down a code of ethics, and also prescribe rituals, observances, ceremonies and
modes of worship. These observances and rituals are also regarded as an integral part of religion.
If the tenets of a religion lay down that certain ceremonies are to be performed at certain times in
a particular manner, those ceremonies are matters of religion, and are to be protected as a
religious belief.

In the present case, the worshippers of this Temple believe in the manifestation of the deity as a
„Nasthik Brahmachari‟. The devotees of this Temple have not challenged the practices followed
by this Temple, based on the essential characteristics of the deity.

1.5. THAT RELIGION IS A MUCH WIDER CONCEPT

Religion is a matter of faith. Religious beliefs are held to be sacred by those who have faith.
According to the SC in Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt17, the definition of religion from an
American case was extracted i.e. “the term „religion‟ has reference to one‟s views of his relation
to his Creator and to the obligations they impose of reverence for His Being and character and of
obedience to His Will”.

17
Commissioner., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
1954 AIR 282.

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In the case of Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors18., it was observed as
follows: “The Gods have distinct forms ascribed to them and their worship at home and in
temples is ordained as certain means of attaining salvation.”

In Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors 19., emphasis was laid on
the mode of worship adopted when Lord Krishna was worshipped in the form of a child.

Religion does not merely lay down a code of ethical rules for its followers to accept, but also
includes rituals and observances, ceremonies and modes of worship which are regarded as
integral parts of the religion.

In the instant case, in order to preserve the character of the deity, and the sanctity of the idol at
the Lord Jogeshwara Temple, the limited restriction is imposed on the entry of women only
during the period notified by the Lord Jogeshwara Trust, i.e. women from the ages of 11 to 51
years. There is no absolute restriction on women per se. Such practice is consistent with the
“Nasthik Bramhcharya” of the deity. This being the underlying reason behind the custom, there
is no derogation of the dignity of women. It is only to protect the manifestation and form of the
deity, who is sacred and divine, and preserve the penance undertaken by the devotees, and in
order to follow the certain means ordained in order to attain salvation.

2. THAT THE ACCUSED ARE NOT GUILTY OF ABDUCTION AND

MURDER OF REEMA AND RIYA

It is humbly submitted before this Hon‟ble Court that, under Sec. 30220 and Sec. 36421 of the
IPC, the accused are not guilty for the abduction and murder of Reema and Riya. The accused

18
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., 1958 AIR 255.
19
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors., 1964 SCR (1) 561.
20
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 2017.
21
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 2017.

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are also not liable for criminal conspiracy under Sec. 120B of the IPC 22. The guilt in the instant
matter cannot be established as: (1) the case is beyond reasonable doubt; (2) there is unreliability
on the part of the witnesses; (3) the guilt cannot be solely based on suspicion; (4) the chain of
events is not complete and (5) the essentials of criminal conspiracy are not being fulfilled.

2.1. THAT THE CASE IS BEYOND REASONABLE DOUBT

As laid down under Sec. 2723 of the Indian Evidence Act, evidence should prove the guilt of the
culprit beyond a reasonable doubt. In State of UP v. Dr. Ravindra Prakash Mittal24, the SC had
laid down the essentials for adjudging circumstantial evidence:

 The circumstance from which the guilt is established should be proven;

 That each one the facts should be according to the hypothesis of the guilt of the
accused;
 That the circumstances should be conclusive in nature and tendency;
 That the circumstances ought to, to an ethical certainty, truly exclude each hypothesis
except the one projected to be evidenced.
 The evidence should prove the guilt of the culprit beyond a reasonable doubt.

In the instant case, the circumstances amounting to the guilt of the accused cannot be proven
beyond a reasonable doubt since mere threatening on the part of the accused or the recovery of
murder weapon from the temple premises do not amount to the fact that the circumstances are
conclusive in nature to establish the guilt of the accused. As in the case of Nirmal Kumar v.
State of UP25, the SC held that mere recovery of the murder weapon is not a proof that the
accused has committed the crime.

22
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 2017.
23
Ratanlal & Dhirajlal, The Law of Evidence, LexisNexis, 2017.
24
State of UP v. Dr. Ravindra Prakash Mittal, 1992 AIR 2045.
25
Nirmal Kumar v. State of UP, 1992 CriLJ 1426.

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2.2. THAT THERE IS UNRELIABILITY ON THE PART OF THE

WITNESSES

Under Sec. 118 of the Indian Evidence Act, all persons shall be competent to testify unless the
Court considers that they are prevented from understanding the questions put to them, or from
giving rational answers to those questions, by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same.

Explanation  A lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.

In the instant case, there is presence of three witnesses who provide some evidence, i.e. Mrs.
Radha Kishan, Mrs. Savita and Mr. Krishna Das.

Since Mrs. Savita, the wife of Bhawani, is suffering from some kind of dissociative disorder26,
which is a mental health disorder, wherein it is characterized by an involuntary escape from
reality characterized by a disconnection between thoughts, identity, consciousness and
memory. Hence, she falls within the category of a lunatic, since she cannot connect her thought
process, and cannot rationally understand the questions. Hence, it can be said the evidence put
forward by a lunatic witness is not credible.

Mrs. Radha Kishan is the mother of Reema and Riya, and hence, that makes her an interested
witness. In the case of Chandra Mohan Tiwari And Anr vs State Of Madhya Pradesh27, it was
emphasized by the SC that interested witnesses are not necessarily false witnesses, though the
fact that those witnesses have personal interest of stake in the matter must put the Court on its
guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must
assess the testimony of each important witness and indicate the reasons for accepting or rejecting
it, and that no evidence should be at once disregarded simply because it came from interested

26
¶2, Annexure 5, Moot proposition.
27
Chandra Mohan Tiwari And Anr vs State Of Madhya Pradesh, 1992 AIR 891.

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parties. Hence, the witness statement given by her should be assessed with close scrutiny in order
to avoid any falsification of evidence.

In the testimony of Krishna Das, it can be inferred that he is giving vague and inconclusive
statements. Hence, his statement should not be considered as it does not provide anything
conclusive in order to build a chain of circumstances and establish a case.

2.3. THAT THE GUILT CANNOT BE SOLELY BASED ON SUSPICION

The SC, in a series of its decisions, has held on to the fact that no one can be convicted on the
basis of mere suspicion, however strong it may be. In the cases of Palvinder Kaur v. The State of
Punjab28, Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra29 and Sharad
Birdhichand Sarda v. State of Maharashtra30, the SC has pointed out that the suspicion,
however, great it may be, cannot take the place of legal proof and that "fouler the crime higher
the proof", and that in cases depending on circumstantial evidence courts should safeguard
themselves against the danger of basing their conclusions on suspicions how so ever strong.

In the instant case, the mere suspicion arising from the fact that Pt. Kali Charan threatened the
girls or were jealous of them because they were protesting against this religious practice do not
lead to the rise of any substantial evidence against the accused. Since when Reema and Riya
tried entering the temple, they were stopped by a large crowd of protestors who were shouting
that “IF ANY WOMEN WILL STEP INTO THE TEMPLE OF LORD JOGESHWARA SHE
WILL FACE DIRE CONSEQUENCES AND THEIR ENTIRE FAMILY WILL BE KILLED”
and indicated that Lord Jogeshwara will not condone them for this sinful act and they will die
and face atrocities in hell31, it can also be inferred that since they were protesting against this

28
Palvinder Kaur v. The State of Punjab, 1952 AIR 354.
29
Chandrakant Ganpat Sovitkar and Anr. v. State of Maharashtra (1975) 3 SCC 16.
30
Sharad Birdhichand Sarda v. State of Maharashtra, 1984 AIR 1622.
31
¶10, Moot proposition.

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age-old religious practice, anybody from the group of protestors could have been angered or
could be guilty of this crime.

The circumstances appearing in this case, when examined in the light of the above principle,
enunciate by this Court do not lead to any decisive conclusion that either all these accused or any
of them committed the abduction and murder of the deceased32.

2.4. THAT THE CHAIN OF EVENTS IS NOT COMPLETE

In the case of Bodh Raj v. State of Jammu and Kashmir33, the SC held that there must be
completion in the chain of events that lead to the guilt of the accused. The ingredients for
circumstantial evidence were laid down here:

 The circumstances from where conclusion of guilt is to be drawn ought to be

established. The circumstances involved „must‟ or „should‟ and not „may be‟
established.
 The facts, therefore, established ought to be as per the hypothesis of the guilt of the
accused.
 Circumstances ought to be conclusive in nature and tendency.
 They ought to exclude each attainable hypothesis except the one to be tested.
 There should be a complete sequence of proof so as to not leave
any affordable ground for the conclusion in line with the innocence of
the defendant and should show that the act must have been done by the defendant.

In the instant case, the investigative agency i.e. the CBI has failed to draw logical conclusions
based on the chain of evidences that they discovered. Here, even though the murder weapon i.e.
daraati has been found in the temple premises and there‟s a strong suspicion that the accused is

32
Padala Veera Reddy v. State Of Andhra Pradesh, AIR 1990 SC 79.
33
Bodh Raj v. State of Jammu and Kashmir, 2002 (8) SCC 45.

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guilty for the offence, the CBI has failed to analyze or even collect the fingerprints on the murder
weapon and match them with those of the accused. The failure to connect the accused from the
murder weapon does not complete the chain of circumstances or a “complete sequence of proof”
to establish the guilt of the accused.

The SC in a series of decisions, like Rama Nand and Ors. v. State of Himachal Pradesh34, Prem
Thakur v. State of Punjab35, and Balvinder Singh v. State of Punjab36, has consistently held that
when a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently
and firmly established;

(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the
accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was committed by the
accused and none else; and

(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but should be inconsistent with his
innocence37.

In this case, most of the circumstances to prove the guilt of the accused and form a chain of
events are based on hypothesis, and there is absence of assurance that only the accused and no
one else has committed the crime. The circumstances leading to the guilt of the accused have not
been firmly established, and hence, the accused cannot be held guilty for the crime.

34
Rama Nand and Ors. v. State of Himachal Pradesh, 1981 AIR 738.
35
Prem Thakur v. State of Punjab, 1983 SCR (1) 822.
36
Balvinder Singh v. State of Punjab, 1996 AIR 607.
37
Gambhir v. State of Maharashtra, 1982 CriLJ 1243.

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2.5. THAT THE ESSENTIALS OF CRIMINAL CONSPIRACY ARE NOT

BEING FULFILLED

According to Sec. 120A of the IPC38, criminal conspiracy is defined as: When two or more
persons agree to do, or cause to be done —

(a) An illegal act; or

(b) An act which is not illegal by illegal means, such an agreement is designated a criminal
conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such
agreement in pursuance thereof.

Explanation — It is immaterial whether the illegal act is the ultimate object of such agreement,
or is merely incidental to that object.

However, it has to be kept in mind that the standard of proof for the act of criminal conspiracy is
the same as that of any other criminal offence i.e. beyond reasonable doubt.

In the case of State (NCT of Delhi) v. Navjot Sandhu39, AIR 2005 SC 3820, it was held that: “A
few bits here and a few bits there on which the prosecution relies cannot be held to be adequate
for connecting the accused in the offence of criminal conspiracy”.

In the case of Subramaniam Swamy v. A Raja40, it was held that, “suspicion cannot take the place
of legal proof and existence of a meeting between the accused persons is not by itself sufficient
to infer the existence of criminal conspiracy.”

38
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 2017.
39
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.

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According to the above stated precedents, in the instant case, existence of a meeting between the
accused persons in the form of Lord Jogeshwara Trust cannot be sufficient to infer the existence
of a criminal conspiracy and hypothesis of guilt on part of various accused persons cannot be
held adequate for connecting all of them to this offence.

3. THAT THE ACCUSED ARE NOT GUILTY FOR COMMITTING RAPE

OF RIYA

It is humbly submitted before this Hon‟ble Court that the accused are not guilty for committing
the rape of Riya under Sec. 376-D of the IPC41 as: (1) the case cannot be based on circumstantial
evidence and (2) DNA examination is necessary to establish guilt.

3.1. THAT THE CASE CANNOT BE BASED ON CIRCUMSTANTIAL

EVIDENCE

As mentioned by the Counsel in the above issue, in the case of Bodh Raj v. State of Jammu and
Kashmir42, the SC held that there must be completion in the chain of events that lead to the guilt
of the accused. The ingredients for circumstantial evidence were laid down here:

 The circumstances from where conclusion of guilt is to be drawn ought to be

established. The circumstances involved „must‟ or „should‟ and not „may be‟
established.
 The facts, therefore, established ought to be as per the hypothesis of the guilt of the
accused.
40
Subramaniam Swamy v. A Raja (2012) 9 SCC 257.
41
Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 2017.
42
Bodh Raj v. State of Jammu and Kashmir, 2002 (8) SCC 45.

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 Circumstances ought to be conclusive in nature and tendency.

 They ought to exclude each attainable hypothesis except the one to be tested.
 There should be a complete sequence of proof so as to not leave
any affordable ground for the conclusion in line with the innocence of
the defendant and should show that the act must have been done by the defendant.

In the instant case, based on the scanty evidence gathered by the investigative agency, it cannot
be ascertained as to whether the accused were guilty for the rape of Riya, since the case is solely
based on the incomplete chain of events, that is used to establish the relevance of the
circumstantial evidence.

In the case of State Of Gujarat vs Ratansingh @ Chinubhai Anopsinh43, the SC held that if the
prosecution could not establish a complete chain of circumstances to connect the accused with
the crime, it would be unwise to record conviction on the basis of such scanty, weak and
incomplete evidence. Since it was a case of circumstantial evidence and the prosecution had the
theory of last seen, it was still not able to conclusively and beyond reasonable doubt prove that
the deceased was last seen in the company of the respondent. As far as charge of rape was
concerned, the Court observed that there was no direct evidence and medical evidence of rape
and murder was by itself in such a case of circumstantial evidence was not enough to fasten guilt
on the accused.

In the case of Ram Sunder Sen vs Narendra @ Bode Singh Patel & Anr44, the SC held that the
links collected, as well as the deposition of the witnesses have not at all been proved by any
cogent evidence and, therefore, it was difficult to hold that it was the accused who committed
rape upon the deceased and thereafter killed her, since the prosecution had failed at the foremost
to link the accused with the incident. The culpability of the accused could have been established
if the blood samples were tested and matched.

43
State Of Gujarat vs Ratansingh @ Chinubhai Anopsinh (2014) 4 SCC 16.
44
Ram Sunder Sen vs Narendra @ Bode Singh Patel & Anr (2016) 15 SCC 440.

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3.2. THAT DNA EXAMINATION IS NECESSARY TO ESTABLISH GUILT

Under Sec. 53A of the Cr.P.C.45, the medical examination of the accused has been a mandatory
provision. In such a heinous crime like rape, it is the duty of the investigating officer to be more
vigilant, and collect proper evidence systematically and he has to provide proper proof which
established the fact beyond reasonable doubt that the victim has been raped by the accused46.

In the instant matter, no such medical examination was made on the accused in order to ascertain
and establish their guilt. No such traces of semen were found on the clothes of the victim, which
could connect the accused with the crime. Hence, the chain of events leading to the rape of Riya
cannot be established beyond a reasonable doubt, as medical evidence only form circumstantial
evidence which could be relied upon, but cannot be completely depended upon till the chain is
complete.

45
Ratanlal & Dhirajlal. The Code of Criminal Procedure. LexisNexis. 2018.
46
Shivangi Vyas, Critical Analysis of the Relevancy of the Medical and Forensic Evidences in the Rape Cases,
Bharati L. J., Mar. 2016, pg. 225.

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PRAYER

Wherefore, in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed and implored before the Hon‟ble Court that it may be
graciously pleased to adjudge and declare that:

1. Prohibiting women of a particular age group from entering the Lord Jogeshwara Temple
is not violative of the Fundamental Rights enshrined under the Constitution of Indiana,
and the claim for exclusion of women from religious worship founded in religious text is
subordinate to the Constitutional values of Liberty, Dignity and Equality.
2. The accused are not guilty of the abduction and murder of Reema and Riya
3. The accused are not guilty of committing rape of Riya

And pass any other order as it deems fit in the interest of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

FOR WHICH THE RESPONDENT SHALL FOREVER PRAY.

COUNSEL FOR THE RESPONDENT

COUNSEL ON BEHALF OF THE RESPONDENT