Amity Intra 2012 Petitioner

Amity Law School – II 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 Hon‟ble High Court Memorial on Behalf of the Petitioners

INDEX Page No. 1.

Index of Authorities……………………………….…………………………………….2

2.

Statement of Facts………………………………………………………………………..3

3.

Statement of Jurisdiction………………………………………………………………...4

4.

Issues Presented………………………………………………………………………....5

5.

Summary of Arguments Advanced ………………………………………………….…6

6.

Arguments Advanced…………………………………………………………………...7

7.

Prayers ……………………………………………………………………………….…11

1 Memorial on behalf of Petitioners

Index of Authorities Cited

1.

Section 108, Indian Penal Code, 1860

2.

Section 107, Indian Penal Code, 1860

3.

Rome Statute of the International Criminal Court

2 Memorial on behalf of Petitioners

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 Ramiya‘s 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.

3 Memorial on behalf of Petitioners

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.

4 Memorial on behalf of Petitioners

Issues Presented

1.

Why they are being held guilty of committing murder and not for ‗culpable homicide not

amounting to murder‘?

2.

Whether honour killing is a kind of offence which should be death under IPC or we need

a separate piece of legislation to curb this menace?

3.

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

5 Memorial on behalf of Petitioners

Summary of Arguments Advanced

1.

The defendants in this case should be held guilty of Culpable Homicide not amounting to

murder 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 since

all 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 against

humanity 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.

6 Memorial on behalf of Petitioners

Arguments Advanced 1.

Why they are being held guilty of committing murder and not for „culpable

homicide 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 7 Memorial on behalf of Petitioners

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 abettor”1

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

8 Memorial on behalf of Petitioners

2.

Whether honour killing is a kind of offence which should be death under IPC or we

need 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 killings”as 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 divorce—even from an abusive husband—or (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 9 Memorial on behalf of Petitioners

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 woman‘s 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 girl‘s 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 women‘s 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 Vahini‘s 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 10 Memorial on behalf of Petitioners

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 Manoj‘s 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 Manoj‘s 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 not

amounting 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. 11 Memorial on behalf of Petitioners



Section 308: Penalises attempt to commit culpable homicide by imprisonment for upto 3

years 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 and

culpable homicide. 

Section 34 and 35: Penalises criminal acts done by several persons in furtherance of

common 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 act can 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….

12 Memorial on behalf of Petitioners

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 under any 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 divorce—even from an abusive husband—or (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 13 Memorial on behalf of Petitioners

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 of Punjab 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 of Bihar 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. In May 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 of an 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

14 Memorial on behalf of Petitioners

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 15 Memorial on behalf of Petitioners

the community‘s greater exposure to it. When a crime against humanity actually takes place, that same community‘s 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 shouldn‘t 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 16 Memorial on behalf of Petitioners

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 the

laws 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 good

conscience.

Counsel for the Petitioners

Team

17 Memorial on behalf of Petitioners

Simar Pal Singh Mohit Kaushik Divya Raj

18 Memorial on behalf of Petitioners