Amity Intra 2012 Petitioner

7/31/2019 Amity Intra 2012 Petitioner

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Amity Law SchoolII

Intra Moot Court Competition

In the Honourable High Court

Case Concerning, Honour Killing

Mr. Shanker and Others

..(Petitioners)

V.

The State Government

...(Respondents)

On Submission to the Honble High Court

Memorial on Behalf of the Petitioners


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Memorial on behalf of Petitioners

INDEX

Page No.

1.

Index of Authorities..2

2. Statement of Facts..3 3. Statement of Jurisdiction...44. Issues Presented....55. Summary of Arguments Advanced .66. Arguments Advanced...77. Prayers .1 1


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Index of Authorities Cited

1. Section 108, Indian Penal Code, 18602. Section 107, Indian Penal Code, 18603. Rome Statute of the International Criminal Court


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Statement of Facts

Miss Ramiya is a 20 year old woman. Her father is Mr. Shanker who is 52 years old and her

Uncle is Mr. Shyam who is 51 years old. Miss Ramiyas sister is 22 year old Ruhi.

Miss Ramiya had ended an abusive arranged marriage.

Miss Ramiya fell in love with a man who was from a different community, this enraged her

father.

She was becoming increasingly westernized according to her father and uncle.

Miss Ramiya was strangled with a boot lace, stuffed in a suitcase and buried in a garden.

Mr. Shyam and Mr. Shanker planned the killing at a family meeting, prosecutors told the court.

Two suspects have pleaded guilty and two others have fled the country.

Her sister Miss Ruhi testified verbal harassment by Mr. Shyam towards the victim.

The Court has found the accused guilty or murder.

An Appeal has been filed in the High Court.


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Statement of Jurisdiction

The Petitioners approach the Honorable High Court under Article 226 of the

Constitution of India, 1950. The respondents respectfully submit to this jurisdiction

invoked by the Petitioners.


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Issues Presented

1. Why they are being held guilty of committing murder and not for culpable homicide notamounting to murder?

2. Whether honour killing is a kind of offence which should be death under IPC or we needa separate piece of legislation to curb this menace?

3. Whether such heinous crimes can be referred to as crime against humanity?


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Summary of Arguments Advanced

1. The defendants in this case should be held guilty of Culpable Homicide not amounting tomurder and not murder. Mr. Shanker was under the influence of Mr. Shyam who was the culprit

who convinced him that killing his daughter was the only solution to the problem.

2. The issue of honour killing should be dealt exclusively under the Indian Penal Code sinceall the provisions for punishing an offender are already mentioned in the IPC, therefore it makes

no sense to pass new legislation. There should be an amendment that enables dealing with the

issues of honour killing under the Chapter XVI.

3. No, the crimes committed during an honour killing cannot be termed as a crime againsthumanity because it is fundamentally unsound to do so. A Crime against humanity is one that is

done on a much grander scale and more often than not, with the assistance of a government.

Such a small and isolated issue should not be confused with actual crimes against humanity such

as genocides or political killings.


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Arguments Advanced

1. Why they are being held guilty of committing murder and not for culpablehomicide not amounting to murder?

Mr. Shanker was against his daughter's ways. He believed that his daughter was becoming too

westernized and had adopted bad ways. Mr. Shanker was also angry at the fact that his daughter

had ended her arranged marriage which the family had fixed for her. She was also having an

affair with a man who was not from the same caste. What enraged her father was not that she

was in love with a man but that the man was not from the same caste and therefore it was wrong

for them both to be together.

Naturally any father would be filled with bitterness but was this bitterness enough for her father

to order her murdered in such a heinous way? Is it possible that the intentions of Mr. Shanker

were not as vengeful as the respondents would have us believe? Let us examine the facts of the

case.

Both the men accused the young woman of shaming her family by ending the marriage,

becoming too westernized and falling in love with a man from a different community. The key

word here is BOTH men. Not just her father alone. We also have Miss Ruhi's testimony. She

claims that her uncle had announced in front of her that if Ramiya was his daughter he would

have 'Burned her to Ashes'.

Clearly we are missing an important piece of the puzzle here. Why was Mr. Shyam not brought

into court and tried along with his brother? From the evidence above we can assume that Mr.

Shyam had the most important role in convincing Mr. Shanker to order Miss Ramiya dead. It is


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also stipulated in the facts of that case that the decision to kill Miss Ramiya was made at a family

meeting which means that Mr. Shyam was present while Mr. Shanker made his decision.

Mr. Shyam was the man who influenced Mr. Shanker to kill his daughter. He was a man of

violent nature as is seen in the facts of the case and it is obvious that he abetted the murder of

Miss Ramiya.

Under Section 108 of the Indian Penal Code, an abettor is a person who:

Abets an offence or the commission of an offence or the commission of an act which would be

an offence, if committed by a person capable by law of committing an offence with the same

intention or knowledge as that of the abettor1

Under Section 107 of the Indian Penal Code, A person abets the doing of a thing who:

Instigates any person to do that thing 2

It is clear from the supporting facts and law that Mr. Shyam is guilty of abetting the murder of

Miss Ramiya and therefore should be charged under the relevant sections by the court. Mr.

Shanker meanwhile should be charged u/s 299 instead of section 302 due to his actions not

completely being under his control but being instigated by Mr. Shyam.

1: Section 108, Indian Penal Code, 1860

2: Section 107, Indian Penal Code, 1860


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2. Whether honour killing is a kind of offence which should be death under IPC or weneed a separate piece of legislation to curb this menace?

An Honour killing also called a customary killing, is the murder of a family or clan member by

one or more fellow family members, where the murderers (and potentially the wider community)

believe the victim to have brought dishonor upon the family, clan or community. This perceived

dishonor is normally the result of :-

(a) utilizing dress codes unacceptable to the family

(b) wanting out of an arranged marriage or choosing to marry by own choice,

(c) engaging in certain sexual acts ,

(d) marriage within same gotra.

These killings result from the perception that defense of Honour justifies killing a person whose

behavior dishonours their clan or family.

Human Rights watch defines honour killingsas follows:

Honour crimes are acts of violence, usually murder, committed by male

family members against female family members, who are held to have brought dishonour upon

the family. A woman can be targeted by (individuals within) her family for a variety of reasons,

including: refusing to enter into an arranged marriage, being the victim of a sexual assault,

seeking a divorceeven from an abusive husbandor (allegedly) committing adultery. The

mere perception that a woman has behaved in a way that "dishonors" her family is sufficient to

trigger an attack on her life.

'Honour Killing' literally means murder committed to safeguard the Honour of the family but the

term has got a deeper meaning and serves a different motive in our villages the standard


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definition of Honour killing goes to like this- Honour killing is murder of womenfolk by family

members, generally male. Who are compelled to remove stains on their family's Honour. A

woman can cause that stain on the family due to several reasons like refusing an arranged

marriage, eloping with her beloved, being the victim of sexual assault or just because she wants

to get a divorce.

One of the recent incidents of honour killing involved a Dalit couple, who were allegedly

murdered by the womans uncle. "I have no regrets. I would punish them all over again," a

remorseless Om Prakash Saini, the suspected assailant, told the Indian media following his

arrest. And also in a similarly related incident, a New Delhi-based couple were shot dead by the

girls brother and his friends. Her cousin sister or female first cousin who was suspected of

playing Cupid for the slain couple, was also murdered. The slain man was a Rajput (the Hindu

warrior race) while the woman was a Gujjar, considered a backward class in India.The murdered

womens brother and cousin were arrested for the crime. During their capture, one of her

relatives went live on national television expressing support for the killing. "Murder is

unacceptable but in this case it is good for the society," he said.

It is quite clear from the above incidents, honor killing is more of a social evil as it is guided by

traditions and values prevalent in a society. What is truly required is proper implementation of

the existing legislation, promotion of social awareness and literacy, emphasis on preventive

policing rather than detective policing by the police department and increased vigilance in the

areas more prone to such dangers.

"The so-called honour-based violence occurs in Indian communities where the concepts of

honour and shame are fundamentally bound up with the expected behaviours of families and

individuals, particularly those of women," says Shakti Vahinis Kant.

In the Manoj-Babli Honour killing case, Kaithal District court found the accused guilty of

murder, kidnapping, conspiracy, and destroying evidence under sections 302, 364,120 B and 210


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of the IPC. Then, on March 30, 2010, in a first judgment of its kind the Harayna state, the court

announced a death penalty verdict in the double murder case for five accused and life sentence

to one for murdering a couple. All the accused were relatives of Babli, including her brother

Suresh, cousins Gurdev and Satish, paternal uncle Rajender, and maternal uncle Baru Ram. Khap

panchayat leader Ganga Ram (Ganga Raj) was given a life sentence for conspiracy, while the

driver, Manjeet Singh, held guilty of kidnapping, was given a jail term of seven years. The court

also asked the Haryana government to provide a compensation of Rs 1 lakh to Manojs family,

as he was the only earning member. The court also indicted six police personnel for dereliction

of duty and directed the SSP, Kaithal, to take action against them. They include ASI Jagbir

Singh, head constables Dharam Pal, Jai Inder and Ram Mehar, lady constable Usha Rani and

constable Satbir Singh, members of the escort party provided to the slain couple.

The public prosecutor later said, The leader (Ganga Ram) got away with death penalty because

he intentionally disappeared during the killing,. Deceased Manojs brother Narendar said, they

now plan to appeal in High Court for death penalty to the main accused, Ganga Ram.

Giving the judgment Karnal Additional District and Sessions Judge Vani Gopal Sharma said,

Khap panchayats have functioned contrary to the constitution, ridiculed it and have become a

law unto themselves.

Therefore, so far as the question of a new legislation is to be considered, practically speaking, we

do not need any law to regulate the commission of crime of honor killing.

The reason is that the existing remedy and penalty under INDIAN PENAL CODE (IPC) is

sufficient to punish the HONOR KILLING:-

Sections 299-304: Penalises any person guilty of murder and culpable homicide notamounting to murder. The punishment for murder is life sentence or death and fine. The

punishment for culpable homicide not amounting to murder is life imprisonment or

imprisonment for upto 10 years and fine.

Section 307: Penalises attempt to murder with imprisonment for upto 10 years and a fine.If a person is hurt, the penalty can extend to life imprisonment.


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Section 308: Penalises attempt to commit culpable homicide by imprisonment for upto 3years or with fine or with both. If it causes hurt, the person shall be imprisoned for upto 7 years

or fined or both.

Section 120A and B: Penalises any person who is a party to a criminal conspiracy. Sections 107-116: Penalises persons for abetment of offences including murder andculpable homicide.

Section 34 and 35: Penalises criminal acts done by several persons in furtherance ofcommon intention.

Murder is murder, whoever commits it and with whatever motive. The punishment for it is death.

It's not a question of involvement of a panchayat or an individual. Anyone involved in this actcan be brought to book under IPC provisions.

For instance, a person accused of honour killing can be booked under Section 302 (murder)

while those involved in planning it or being part of a conspiracy can be tried under Sections

120B (criminal conspiracy) and Section 34 (acts done by several persons in furtherance of

common intention). They will be equally liable to the punishment as provided for those

committing murder.

Thus, honor killing is an offence which can be dealt under IPC and there is no need to enact a

separate legislation to curb it.


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3. Whether such heinous crimes can be referred to as crime against humanity?

It is submitted that the term Crime against humanity has no where been defined underany of

Indian statute or law. The term crime against humanity is an international term and is described

in laws of international nature.

A general description of the term Crimes against humanity, is given by the Rome Statute of the

International Criminal Court Explanatory Memorandum, "are particularly odious offenses in

that they constitute a serious attack on human dignity or grave humiliation or a degradation of

one or more human beings. They are not isolated or sporadic events, but are part either of a

government policy (although the perpetrators need not identify themselves with this policy) or of

a wide practice of atrocities tolerated or condoned by a government or a de facto authority.

Murder; extermination; torture; rape; political, racial, or religious persecution and other

inhumane acts reach the threshold of crimes against humanity only if they are part of a

widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave

infringements of human rights, or depending on the circumstances, war crimes, but may fall

short of falling into the category of crimes under discussion."[1]

Human Rights Watch defines "honor killings" as follows:

Honor killings are acts of vengeance, usually death, committed by male family members against

female family members, who are held to have brought dishonor upon the family. A woman can

be targeted by (individuals within) her family for a variety of reasons, including: refusing to

enter into an arranged marriage, being the victim of a sexual assault, seeking a divorceeven

from an abusive husbandor (allegedly) committing adultery. The mere perception that a

woman has behaved in a way that "dishonors" her family is sufficient to trigger an attack on her

life.

Honor killings have been reported in northern regions of India, mainly in the Indian states of

Uttarakhand, Punjab, Rajasthan, Haryana, Uttar Pradesh, as a result of people marrying without
http://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Courthttp://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Courthttp://en.wikipedia.org/wiki/Human_dignityhttp://en.wikipedia.org/wiki/War_crimeshttp://en.wikipedia.org/wiki/Crimes_against_humanity#cite_note-Horton-0http://en.wikipedia.org/wiki/Crimes_against_humanity#cite_note-Horton-0http://en.wikipedia.org/wiki/Human_Rights_Watchhttp://en.wikipedia.org/wiki/Arranged_marriagehttp://en.wikipedia.org/wiki/Sexual_assaulthttp://en.wikipedia.org/wiki/Domestic_violencehttp://en.wikipedia.org/wiki/Adulteryhttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Uttarakhandhttp://en.wikipedia.org/wiki/Punjab_(Indian_state)http://en.wikipedia.org/wiki/Rajasthanhttp://en.wikipedia.org/wiki/Haryanahttp://en.wikipedia.org/wiki/Uttar_Pradeshhttp://en.wikipedia.org/wiki/Uttar_Pradeshhttp://en.wikipedia.org/wiki/Haryanahttp://en.wikipedia.org/wiki/Rajasthanhttp://en.wikipedia.org/wiki/Punjab_(Indian_state)http://en.wikipedia.org/wiki/Uttarakhandhttp://en.wikipedia.org/wiki/Indiahttp://en.wikipedia.org/wiki/Adulteryhttp://en.wikipedia.org/wiki/Domestic_violencehttp://en.wikipedia.org/wiki/Sexual_assaulthttp://en.wikipedia.org/wiki/Arranged_marriagehttp://en.wikipedia.org/wiki/Human_Rights_Watchhttp://en.wikipedia.org/wiki/Crimes_against_humanity#cite_note-Horton-0http://en.wikipedia.org/wiki/War_crimeshttp://en.wikipedia.org/wiki/Human_dignityhttp://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Courthttp://en.wikipedia.org/wiki/Rome_Statute_of_the_International_Criminal_Court


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their family's acceptance, and sometimes for marrying outside their caste or religion. In contrast,

honor killings are rare to non-existent in South India and the western Indian states of

Maharashtra and Gujarat. In some other parts of India, notably West Bengal, honor killings

ceased about a century ago, largely due to the activism and influence of reformists such as

Vivekananda, Ramakrishna, Vidyasagar and Raja Ram Mohan Roy.

Among Rajputs, marriages with members of other castes can provoke the killing of the married

couple and immediate family members. This form of honor killing is attributed to Rajput culture

and traditional views on the perceived "purity" of a lineage.

The Indian state ofPunjab has a large number of honor killings. According to data compiled by

the Punjab Police, 34 honor killings were reported in the state between 2008 and 2010: 10 in

2008, 20 in 2009, and four in 2010 .

Haryana and Uttarakhand are also notorious for incidents of honor killing, mainly in the upper

caste of society, among Rajputs and Jaats. Bhagalpur in the eastern Indian state ofBihar has also

been notorious for honor killings. Recent cases include a 16-year-old girl, Imrana, from Bhojpur

who was set on fire inside her house in a case of what the police called moral vigilantism. The

victim had screamed for help for about 20 minutes before neighbours arrived, only to find her

smouldering body. She was admitted to a local hospital, where she later died from her injuries. InMay 2008, Jayvirsingh Bhadodiya shot his daughter Vandana Bhadodiya and struck her on the

head with an axe.[96]

In June 2010 some incidents were reported even from Delhi.

In a landmark judgment in March 2010, Karnal district court ordered the execution of five

perpetrators ofan honor killing in Kaithal, and imprisoning for life the khap (local caste-based

council) chief who ordered the killings of Manoj Banwala (23) and Babli (19), a man and woman

of the same clan who eloped and married in June 2007. Despite having been given police

protection on court orders, they were kidnapped; their mutilated bodies were found a week later

in an irrigation canal.

In 1990 the National Commission for Women set up a statutory body in order to address the

issues of honor killings among some ethnic groups in North India. This body reviewed
http://en.wikipedia.org/wiki/Caste_system_in_Indiahttp://en.wikipedia.org/wiki/South_Indiahttp://en.wikipedia.org/wiki/Maharashtrahttp://en.wikipedia.org/wiki/Gujarathttp://en.wikipedia.org/wiki/West_Bengalhttp://en.wikipedia.org/wiki/Hindu_reform_movementshttp://en.wikipedia.org/wiki/Vivekanandahttp://en.wikipedia.org/wiki/Ramakrishnahttp://en.wikipedia.org/wiki/Ishwar_Chandra_Vidyasagarhttp://en.wikipedia.org/wiki/Raja_Ram_Mohan_Royhttp://en.wikipedia.org/wiki/Rajputhttp://en.wikipedia.org/wiki/Culturehttp://en.wikipedia.org/wiki/Punjab_(Indian_state)http://en.wikipedia.org/wiki/Haryanahttp://en.wikipedia.org/wiki/Uttarakhandhttp://en.wikipedia.org/wiki/Bhagalpurhttp://en.wikipedia.org/wiki/Biharhttp://en.wikipedia.org/wiki/Bhojpurhttp://en.wikipedia.org/wiki/Honor_killing#cite_note-95http://en.wikipedia.org/wiki/Honor_killing#cite_note-95http://en.wikipedia.org/wiki/Honor_killing#cite_note-95http://en.wikipedia.org/wiki/Delhihttp://en.wikipedia.org/wiki/Karnalhttp://en.wikipedia.org/wiki/Kaithal_honour_killing_casehttp://en.wikipedia.org/wiki/Kaithalhttp://en.wikipedia.org/wiki/Life_sentencehttp://en.wikipedia.org/wiki/National_Commission_for_Womenhttp://en.wikipedia.org/wiki/National_Commission_for_Womenhttp://en.wikipedia.org/wiki/Life_sentencehttp://en.wikipedia.org/wiki/Kaithalhttp://en.wikipedia.org/wiki/Kaithal_honour_killing_casehttp://en.wikipedia.org/wiki/Karnalhttp://en.wikipedia.org/wiki/Delhihttp://en.wikipedia.org/wiki/Honor_killing#cite_note-95http://en.wikipedia.org/wiki/Bhojpurhttp://en.wikipedia.org/wiki/Biharhttp://en.wikipedia.org/wiki/Bhagalpurhttp://en.wikipedia.org/wiki/Uttarakhandhttp://en.wikipedia.org/wiki/Haryanahttp://en.wikipedia.org/wiki/Punjab_(Indian_state)http://en.wikipedia.org/wiki/Culturehttp://en.wikipedia.org/wiki/Rajputhttp://en.wikipedia.org/wiki/Raja_Ram_Mohan_Royhttp://en.wikipedia.org/wiki/Ishwar_Chandra_Vidyasagarhttp://en.wikipedia.org/wiki/Ramakrishnahttp://en.wikipedia.org/wiki/Vivekanandahttp://en.wikipedia.org/wiki/Hindu_reform_movementshttp://en.wikipedia.org/wiki/West_Bengalhttp://en.wikipedia.org/wiki/Gujarathttp://en.wikipedia.org/wiki/Maharashtrahttp://en.wikipedia.org/wiki/South_Indiahttp://en.wikipedia.org/wiki/Caste_system_in_India


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constitutional, legal and other provisions as well as challenges women face. The NCW's activism

has contributed significantly towards the reduction of honor killings in rural areas of North India.

As abhorrent as honour killings are, they are not a crime against humanity.

First, they are not committed as part of a State or organizational policy. Murders in this context

are usually based on the perception that the honour of a family/community/clan has been

brought into disrepute by the acts of a woman. Killing, somehow, is supposed to restore it.

The general requirement for a crime to be termed as a crime against humanity includes a crime to

be widespread or systematic in nature. The term widespread requires large-scale action

involving a substantial number of victims, whereas the term systematic requires a high degree

of orchestration and methodical planning.It is difficult to place honour killings within the

context of a much larger attack. That is, they are sporadic and individual criminal acts, even if

they are numerous in number. They lack the necessary links to one another to be considered part

of a widespread or systematic attack. The people involved in these crimes would not perceive

themselves to be acting in the furtherance of such an attack. This is not to diminish their brutality

or inhumanity. They are heinous criminal acts, but they are clearly not a crime against humanity.

The Blaskic Judgment held that the term systematic requires, inter alia, the existence of a

political objective, a plan pursuant to which the attack is perpetrated or an ideology that aims to

destroy, persecute or weaken a community.

Terms and words, such as crimes against humanity convey meaning and carry a certain

gravitas. This is especially true when we are talking about international crimes (war crimes,

genocide, crimes against humanity) that inevitably bring with them international security

concerns.

If we think of reports we see on the evening news. One might not like murders, but one hears

about them often enough to acknowledge their existence and become socially adapted to their

occurrence. Thus, one is not so shocked when a murder is reported on the news. The fear is that

calling honour killings a crime against humanity, when it is not, may perhaps be adding to a

similar socialization of crimes against humanity. Thus, its stigma begins to erode because of
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the communitys greater exposure to it. When a crime against humanity actually takes place, that

same communitys call for action or demand that it end might not be as stern or as forceful as it

once was.

There are plenty of reports of crimes against humanity from around the world. But there are also

plenty of reports that just shouldnt call things crimes against humanity at all.

Thus it is contended that although honor killing comes under the category of heinous crime, but

as this crime is not widespread and systematic in nature, and also not committed as part of state

policy or organizational policy. Hence such a crime should not be referred as crime against

humanity.

Prayers


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In Lights of the facts, issues presented and arguments advanced, the Petitioners humbly pray

before the Honourable Court to:

I. Quash the arguments made by the Respondents since there is no clear violation of thelaws mentioned by the respondents.

II. Abolish the sentence given by the lower court and to release the accused.III. Pass any judgment or order that the court may deem fit in light of justice, equity and goodconscience.

Counsel for the Petitioners

Team


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Simar Pal Singh

Mohit Kaushik

Divya Raj

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