8TH FYLC RANKA NATIONALMOOTCOURT

COMPETITION, 2018
Before,
THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTON

[UNDER ART. 136 OF THE CONSTITUTION OF INDIA]
SPECIAL LEAVE PETITION (CRIMINAL) NO: _____/2017
(AGAINST THE IMPUGNED JUDGMENT AND FINAL ORDER DATED…..PASSED
BY THE HONB’LE TRIAL COURT,….., RAJASTHAN IN CRIMINAL APPEAL _/18)

--IN THE MATTER OF—

MRS XYZ ABC KUMAR

VERSUS
STATE OF RAJASTHAN &OTHERS

CASE PERTAININGTO
THE VIOLATION OF THE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF
APPELLANTS AND THEIR CONVICTIONSIN THE MATTER
UNDERSECTIONS 376, 364, 364A/34OF THE INDIAN PENAL CODE,1860
READ WITH SECTION 25/27 OF THE ARMS ACT

ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT ON 12.08.18

-MEMORANDUM ON BEHALF OF THE RESPONDENTS-

8TH FYLC RANKA NATIONAL MOOT COURT COMPETITION COURT, 2018
 TABLE OF CONTENTS

 TABLE OF CONTENTS……………………………..…………………..…………....…I
 LIST OF ABBREVIATIONS………………………………………..…..……… ………III
 INDEX OF AUTHORITIES…………………………………………....………… ……..III
STATUTES
BOOKS
TABLE OF CASES
 STATEMENT OF JURISDICTION……………………………...…..…………………..VI
 STATEMENT OF FACTS…………………………………………...…..……………….VII
 ISSUES OF CONSIDERATION………………………………..………………………..IX
 SUMMARY OF ARGUMENTS……………………………..……………………………X
 ARGUEMENTS ADVANCED……………………………………………………………XII
1. MMM
2. MMMM
3. MMM
 PRAYER…………………………………………………………………………………..XXII.

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LIST OF ABBREVIATION

 ABBREVIATION  EXPANSION
 AIR  All India Reporter
 Art.  Article
 &  And
 Anr.  Another
 Ed.  Edition
 Govt.  Government
 Ltd.  Limited
 Ors.  Others
 ¶  Paragraph
 Sec.  Section
 SC  Supreme Court
 SCC  Supreme Court Cases
 i.e.  That is
 Vol.  Volume
 v.  Versus

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INDEX OF AUTHORITIES

LIST OF STATUTES/REGULATIONS/RULES REFERRED

1. Indian Penal Code,1860

2. Criminal Procedure Code,1973
3. Indian Evidence Act,1872
4. Constitution Of India
5. The Juvenile Justice (Care and Protection of Children) Act,2000
6. The Arms Act

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TABLE OF CASES REFERRED

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BOOKS AND COMMENTARIES

 K.D. Gaur, A Textbook on the Indian Penal Code, 4th Edition,2012, Universal Publishing Co. Pvt.
Ltd.
 K.D. Gaur, Criminal Law: Cases and materials, 6th Edition,2009, Lexis Nexis Butterworth
Wadhwa, Nagpur
 Paras Diwan, Family Law of Marriage and Divorce in India, Allahabad Law Agency.
 Paras Diwan, Modern Hindu Law, Allahabad Law Agency, Faridabad.
 Kusum, Cases and Materials on Family Law, Universal Law Pubishing co., New Delhi

SCHOLARY WORK AND ARTICLES

DICTIONARIES

1. A. G. Bryan, ‘Black’s Law Dictionary’, 9th Ed., 2009, West Group.

2. P. Ramanatha., ‘Concise Law Dictionary’, 3rd Ed., Rep. 2006, Wadhwa, Nagpur.

ELECTRONIC MEDIUM
1. Manupatra: - http://www.manupatra.com
2. Lexis Nexis: -http://www.lexisnexus.com/in/legal

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STATEMENT OF JURISDICTION

The respondent in the present case has been empowered by Article 136 1of the CONSTITUTION
OF INDIA, 1950 to initiate the present proceedings before the Hon’ble Supreme Court of India.
The petitioner most humbly and respectfully submits before the jurisdiction of the Hon’ble
Supreme Court in the present matter.

1
Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made
by any court or tribunal constituted by or under any law relating to the Armed Forces.

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STATEMENT OF FACTS
FACTUAL BACKGROUND

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ISSUES FOR CONSIDERATION

1. WHETHER THE CONVICTION OF THE ACCUSED FOR THE ALLEGED

OFFENCES IS FAIR OR JUSTIFIED.

2. WHETHER THE MINOR VIRENDRA WAS RIGHTLY DECLARED AS A MAJOR

AND THE SENTENCE OF LIFE IMPRISONMENT AWARDED TO HIM IS

JUSTIFIABLE OR NOT.

3. WHETHER THE ACCUSED SHOULD BE AWARDED LIFE IMPRISONMENT FOR

THE WHOLE OF THEIR LIFE OR NOT AND WHETHER THE QUANTUM OF

DAMAGES AWARDED TO THE ACCUSED ARE JUSTIFIABLE.

4. WHETHER THE THEORY PRESENTED BY THE PROSECUTIONIS RELIABLE OR

NOT.

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SUMMARY OF ARGUMENTS

FIRST ISSUE: WHETHER THE CONVICTION OF THE ACCUSED FOR THE

ALLEGED OFFENCES IS FAIR OR JUSTIFIED.

The charges framed against the accused have been improper and also their
conviction remains illegal. There have been several lacunas in the prosecution theory
which render it doubtful that the offence is committed by the accused. The charge of
kidnapping against the accused is not established by the prosecution in absence of
any material on record to justify the same. The medical reports has been silent on
many points and pre-requisite tests of the accused have not been conducted in the
absence of same their conviction is improper.

SECOND ISSUE: WHETHER THE MINOR VIRENDRA WAS RIGHTLY

CONVICTED AS A MAJOR AND THE SENTENCE OF LIFE IMPRISONMENT
AWARDED TO HIM IS JUSTIFIABLE OR NOT.

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THIRD ISSUE: WHETHER THE ACCUSED SHOULD BE AWARDED LIFE

IMPRISONMENT FOR THE WHOLE OF THEIR LIFE OR NOT AND WHETHER

THE QUANTUM OF DAMAGES AWARDED TO THE ACCUSED ARE JUSTIFIABLE.

The Hon’ble Session’s Court was erroneous in deciding the sentence and damages
awarded. Taking into the consideration of the factors such as the conduct of the
accused after the commission of the crime, the accused should get the minimum
possible punishment in the statutes.i.e.punishment for minimum 20 years and should
only be liable to pay the victim the compensation as provided under the sec. of the
Criminal Procedure Code,…..The Hon’ble Court is requested to take into account
all the facts, circumstances and thus award the appropriate compensation to the
victim and punishment to the accused.

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FOURTH ISSUE: WHETHER THE THEORY PRESENTED BY THE

PROSECUTIONIS RELIABLE OR NOT.

The theory presented by the prosecution is not reliable as the case has not been proved

beyond reasonable doubt and the prosecution theory suffers from various

inconsistencies. The site map has not been properly prepared and there have been no

independent witnesses to the incident. The conviction of the accused based on

circumstantial evidence is improper and liable to be set aside.

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ARGUMENTS ADVANCED

CONTENTION 1: WHETHER THE CONVICTION OF THE ACCUSED FOR THE

ALLEGED OFFENCES IS FAIR OR JUSTIFIED.

It is vehemently contended before this court that both the lower courts have been
erroneous in convicting the accused persons. Firstly, the charges framed against the
accused have been improper. Secondly, the lower court has been erroneous to
mention the offence under the code under which the conviction of the accused has
taken place. Thirdly, the charge of the kidnapping is not established by the
prosecution in the absence of any material in record. Fourthly, the medical report is
incomplete and several pre-requisites tests of the accused have not been conducted.
Fifthly, the source of money alleged to be found in the room remains unverified by
the investigation agency. In the absence of all aforesaid, it would not be safe to
convict the accused persons.

Also, the Hon’ble High Court had dismissed the petition filed by the accused
regarding the reduction of the punishment. There have been several lacunas in the
prosecution theory and until the case is proved beyond the reasonable doubt,
conviction of the accused cannot take place.

1.1. CHARGES FRAMED AGAINST THE ACCUSED NOT FAIR AND

PROPER
The case against the accused has been registered under sec.376(D), 364, 468& 465of
the Indian Penal Code. 364(A) of the Indian Penal Code talks about kidnapping for
ransom.364 (A) of the I.P.C. cannot be implied upon the accused as there is no
demand for ransom anywhere in the present factual matrix before us. If there would
have been demand by the accused then they would have not left the cash in the room.
Therefore the charge framed against the accused is not fair and proper.

Where Sec. 468 talks about Forgery for the purpose of cheating. 468 of the I.P.C.
cannot be implied upon the accused as there is no forgery for the purpose of cheating
anywhere in the present factual matrix before us. Therefore the charge framed
against the accused is not fair and proper.To buttress my contention inference is
drawn at § 226 of The Code of Criminal Procedure, 1973 (herein after CrPC) which
says:

“When the accused appears or is brought before the court in pursuance of a

commitment of the case under Section 209, the prosecutor shall open his case by
describing the charge brought against the accused and stating by what evidence he
proposes to prove the guilt of the accused”

Before invoking provisions of Section 2272and 2283 dealing with trials before the
Court of Session, the court has to takes note of Section 226 which obliges the
prosecution to describe the charge brought against the accused and state by what
evidence the guilt of the accused would be proved. This point was stressed upon by
the two-Judge Bench in Satish Mehra v. Delhi Admn.4 But it is a matter of regret that
neither the courts nor the prosecution complies with this section.5

The correct procedure to be followed is important as non-framing or incorrect

framing of charges are technical grounds on which the accused is entitled to pray for

2
Discharge: If, upon consideration of the record of the case and the documents submitted therewith, and after
hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not
sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so
doing.
3
Framing of Charge
4
(1996) 9 SCC 766
5
S.R. Chitnis, Framing of Charge in Criminal Cases, (2002) 2 SCC (Jour) 24
quashing of the trial as well as the conviction. The Supreme Court reflecting upon
the provisions of the Code of Criminal Procedure in this regard as well as its earlier
decisions to this effect declared the principles relating to "framing of charge" in
criminal trial, to serve as guidance for all the lower courts.6

But in the present matter before hand, the prosecution has not framed proper charges
against the accused.

1.2. CONVICTION OF THE ACCUSED ILLEGAL

In the present matter, the case under Section 376 [2] (g), 468, 465 and 364 (A) were
registered against the five accused persons. Later on an investigation was carried
out, evidence was collected and accused were arrested. The learned Sessions court
and the learned High Court convicted the accused although they have been erroneous
in not mentioning the sections of the code under which the accused have been
convicted. The learned Sessions court as well as the learned High Court has not
mentioned the offences under which the conviction of the accused has taken place.
Hence, the conviction of the accused is illegal.

Section 354 of Code of Criminal Procedure talks about the Language and Contents
of judgment which states:

“[1] except as otherwise expressly provided by this Code, every judgment

referred to in Section 353:- (c) shall specify the offence (if any) of which, and the
section of the Indian Penal Code, 1860 (45 of 1860), or other law under which,
the accused is convicted and the punishment to which he is sentenced.”

6
Ibid.
Further clause [2] of Section 354 states:

“When the conviction is under the Indian Penal Code, 1860 (45 of 1860) and it
is doubtful under which of two sections, or under which of the two parts of the
same section, of that Code the offence falls, the court shall distinctly express the
same, and pass judgment in the alternative.”

The impugned judgment is not a “judgment” in terms of §§ 353 and 354 of the Code
since proper reasons for conviction and sentence were not provided to the accused
along with the order of conviction and sentence. The accused persons have been
sentenced to life imprisonment and no reasons have been given for the same. Further,
the court did not communicate the section of IPC under which they were convicted
and sentenced. In the absence of the entire judgment in terms of the above mentioned
provisions, the conviction and sentence imposed on accused persons cannot be
sustained.

Judgment indicates the termination of the case by an order of conviction or acquittal

of the accused and judgment is to be rendered in strict adherence to the provisions
of Chapter XXVII of the Code.7

Inference is drawn from the case of Yakub Abdul Razak Memon v. State of
Maharashtra8in which the court said that where the reasons given by the trial Court
are such that cannot be supported by the evidence on record, they are not reasons for
the decision. To constitute a legal appreciation of evidence, the judgment should be
such as to indicate that the Court has applied its mind to it. Every portion of the
judgment must indicate application of mind by the Court to the evidence on record.

7
See also Hori Ram Singh v. Emperor AIR 1939 PC 43; and Kuppuswami Rao v. The King AIR 1949 PC 1
8
2013 (3) SCALE 565
The reason for the decision is an important ingredient of a judgment. Compliance
with the law in this regard should not be merely formal but substantial and real, for
it is this part of the judgment alone which enables the higher Court to appreciate the
correctness of the decision, the parties to feel that the Court has fully and impartially
considered their respective cases and the public to realise that a genuine and sincere
attempt has been made to mete out even-handed justice. Reasons form the
substratum of the decision and their factual accuracy is a guarantee that the Court
has applied its mind to the evidence in the case. Where the statement of reasons
turned out to be a mere hollow pretension of a baseless claim of application of mind
by the Court, the judgment is robbed of one of its most essential ingredients and
forfeits its claim to be termed as judgment in the eyes of law.9

1.3. ACCUSED UNKNOWN TO THE COMPLAINANT

It is the case of the prosecution that the offence under Section 364 A and 376[2] (g)
I.P.C. were committed and case was registered against the five accused persons but
it is not understandable how the case was registered against these five accused when
their names were not known to the complainant. There may be a situation where it
can be said that complainant knew the name of Suresh who was her classmate. But
a pertinent question which arises here is that how the complainant knew the names
of the other four persons accused when they were all unknown to the complainant.It
is an ambiguous fact that how the complainant named the accused in the FIR when
all the students were unknown to her. Also, there is no mention of any identification
parade being conducted in the prosecution theory. The object of conducting a 'test
identification parade' is two-fold. First is to enable the witnesses to satisfy

9
Yakub Abdul Razak Memon v. State of Maharashtra, CRIMINAL APPEAL No. 1728 of 2007, 2013 (3) SCALE 565
themselves that the prisoner whom they suspect is really the one who was seen by
them in connection with the commission of the crime. Second is to satisfy the
investigating authorities that the suspect is the real person whom the witnesses had
seen in connection with the said occurrence.

In the case of Krishan Kumar Malik v. State of Haryana10 eight accused were
charged and prosecuted for commission of offences under §§ 366 and 376 (2) (g) of
the I.P.C. for abducting prosecutrix and then committing rape on her. Trial Court
after appreciation of evidence on record found all the eight accused guilty for
commission of offence punishable under § 366 and in addition to it, found accused
for commission of offences under § 376 (2) (g) of the IPC.

The Supreme Court on the matter said:

“The Prosecutrix admitted in her cross examination that she had come to know the
names of all the accused during the course of occurrence, as they were taking each
other's names. If that be so, then why she did not name the Appellant in the FIR is a
million dollar question? These omissions speak volumes against her and her
credibility stands shaken. The role of courts in such cases is to see, whether the
evidence available before the court is enough and cogent to prove the accused guilty.
Admittedly, no identification parade was conducted to identify the Appellant as the
description given by prosecutrix about the details did not match with his
appearance.”

1.4.MEDICAL INCONSISTENCIES

10
AIR 2011 SC 2877 : (2011) 7 SCC 130
Section 53 A11 of Code of Criminal Procedure talks about Examination of person
accused of rape by medical practitioner

(1) When a person is arrested on a charge of committing an offence of rape or an

attempt to commit rape and there are reasonable grounds for believing that an
examination of this person will afford evidence as to the commission of such
offence, it shall be lawful for a registered medical practitioner employed in a
hospital run by the Government or by a local authority and in the absence of
such a practitioner within the radius of sixteen kilometres from the place where
the offence has been committed by any other registered medical practitioner,
acting at the request of a police officer not below the rank of a sub-inspector,
and for any person acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force as is
reasonably necessary for that purpose

(2) The registered medical practitioner conducting such examination shall, without
delay, examine such person and prepare a report of his examination giving the
following particulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA
profiling, and

11
Inserted by CrPC (Amdt.) Act, 2005 (25 of 2005), dt. 23-6-2005. w.e.f. 23-6-2006 vide SO 923 (E), dt. 21-6-2006.
(v) other material particulars in reasonable detail

(3) The report shall state precisely the reasons for each conclusion arrived at

(4) The exact time of commencement and completion of the examination shall also
be noted in the report

(5) The registered medical practitioner shall, without delay, forward the report of
the investigating officer, who shall forward it to the Magistrate referred to in § 173
as part of the documents referred to in clause (a) of sub-§ (5) of that §]

Section 53 A of CrPC seeks to provide for a detailed medical examination of a person

accused of an offence of rape or an attempt to commit rape by the registered medical
practitioner employed in a hospital run by the Government or a local authority and
in the absence of such a practitioner by any other registered medical practitioner.

The accused should first be identified by the person who brought him, usually a
police constable whose number and name should be noted. The medical examination
report of the accused incorporates the following:

1) Preliminary data (including identity marks),

2) Examination of his clothes,

3) Physical and Systematic Examinations,

4) Injuries on his body and genitals,

5) Collection and preservation of materials for laboratory examinations and

6) Opinion as to whether the accused is capable of performing the sexual act.

While writing the report the following should be noted carefully:

1) The presence of marks of struggle, such as bruises, scratches and teeth bites on
body, especially on face, hands, thighs and genitals.

2) The presence of loose hairs similar to those of female alleged to have been raped.

3) Injury to the genital parts may result from force exerted by accused from force
applied by the victim. In addition to scratches or lacerations on the penis caused by
the fingernails by the victims during the struggles and aberrations on lacerations may
be discovered on the penis.12

The principle features of examination include signs of struggle on clothes and body
and local examination of the genitals. However, there is nothing on record to show
such an investigation carried out and also there have been no signs of any injury
found on the accused persons. In the absence of which, it can be safely concluded
that the accused did not indulge in any sort of violent activity.

In the present matter, no such pre-requisite tests of the accused prescribed under the
statute were conducted, which renders the prosecution story doubtful.

1.5. THE SOURCE OF MONEY FOUND IN ROOM UNVERIFIED:

12
Supra Note 12
1.6. CHARGE OF KIDNAPPING FOR ABDUCTION & FORGERY FOR THE PURPOSE OF
CHEATING UNRELIABLE:

Contention 2: WHETHER THE MINOR VIRENDRA WAS RIGHTLY DECLARED

AS A MAJOR AND THE SENTENCE OF LIFE IMPRISONMENT AWARDED TO

HIM IS JUSTIFIABLE OR NOT.

It is humbly submitted before the Hon`ble Supreme Court, that the Trial Court and

High Court act erroneous while convicting the Virendra as major and the sentence or

life imprisonment awarded to him is not justifiable. Merely on the absence of proof

of conspiracy by the appellants along with failure of the prosecution to provide clear

evidence with respect to the overt acts of each of the appellants, the death sentence

of minor ought to be revisited.

If the legislature has adopted the deciding age between an adult and a minor that is

age of majority ( 18 years ) such decision of is constitutionally valid and hence,

enquiry by the court must have come to an end13.

Psychological, emotional, mental and intellectual maturity of an individual below 18

years cannot be objectively determined on an individually or case to case basis and

the fixation of the minimum age of criminal responsibility ( MACR ) under the

13
Subhramanium Swamy vs Raju
Juvenile Act is a policy decision taken to give effect to the country’ international

commitments. Biological and physical age of 18 years as the criterion for determining

juvenility was fixed by the expert in child physiology and behavioral pattern, hence

till such age child should be given fair opportunity to reform and resorted to

mainstream society.14

Kakoo Vs State of Himachal Pradesh, in this case, court held that for juvenile

delinquent court need to follow reformatory approach in awarding the punishment.

In the present case, insofar as the lack of planning or premeditation regarding the

crime is concerned, it can be said that the accused did not plan the offence in detail

or carry out the plan in a calculated manner which signifies the absence of anti-social

predisposition or hardened criminality. While there is no doubt that the manner of the

commission of the crime was brutal, it is premeditation and planning which

determines the disposition of the accused, and the lack of pre-mediation or reflection

on the actions of the accused should be considered in determining the possibility of

reform of the accused.

In State of Madhya Pradesh vs Balu, held that Section 376 of IPC imposes an
obligation on the part of the court to impose a minimum sentence of seven years of
imprisonment ion the case of rape, but for “adequate and special reasons” recorded
by the court for reducing the minimum mandatory sentence.

14
Salil Bali Vs Union Of India
The learned Sessions court as well as the learned High Court has not mentioned the
offences under which the conviction of the accused has taken place. Hence, the
conviction of the accused is illegal. In State of Himachal Pradesh vs Raghubir Singh,
it was held that every case has to be approached with realistic diversity based on
peculiar facts and circumstances of that case. Further it was mentioned by the learned
Judge in a particular case that “In natural course if the Shawl had been used by the
prosecutrix at the time of alleged offence, the same should have been drenched with
blood in the middle. Moreover this shawl should have been full of mud as it remained
lying on the ground under the prosecutrix for such a long time and when it had
rained throughout”. So in a particular case there is nothing on record to show such
an investigation carried out and also there have been no signs of any injury found on
the accused persons. In the absence of which, it can be safely concluded that the
accused did not indulge in any sort of violent activity. So merely on the basis of
incomplete and insufficient circumstances the life of the minor cannot be destroyed
so the alleged accused named Virendra should be treated as minor and his life
imprisonment should be reduced.

Similarly, in the Nirbhaya case the minor was sent to the Juvenille home and it was
further mentioned by the learned judge that the “Young people are easier to bring in
to an offence, because they are easier to influence and brainwash,”, “But for the same
reason, they are easier to reform. The idea is not to forgive, but to make them
understand what they did, but give them a fresh start, a second chance, because they
have a long life ahead of them.” Similarly the alleged accused, Virendra should not
be given harsh and strict punishment on the basis of insuuficient proof.
Contention 4: WHETHER THE THEORY PRESENTED BY THE PROSECUTIONIS

RELIABLE OR NOT.

The version presented by the prosecution is not reliable as there are several loopholes

in the same. The site map prepared by the investigating agency is incomplete as it has

to been seen by the court that whether the room was so big as to accommodate five

people and for commencement of the act alleged to be committed by the accused or

not. Also, there have been no independent witnesses to the incident in the absence of

the same the sole testimony of the complainant cannot be relied upon by the court.

Finally, the onus of proof lies on the prosecution and if the case is not proved beyond

reasonable doubt the conviction of the accused cannot be upheld.

4.1. SEVERAL LOOPHOLES IN THE PROSECUTION THEORY

First and foremost, after the FIR was lodged by the police, the case under Section
468, 364A and 376 [2] (g) was registered against the five accused persons. It is worth
mentioning that merely on a medical report examined by the doctor of SMS Hospital
of the Gayanwati it has been believed that rape has been committed by the alleged
accused but the question here arises that why the doctors did not examined the
alleged accused. According to the law, the alleged accused should undergo the
medical test but the doctors of SMS Hospital didn’t examined the alleged accused.
This is the contradiction and inconsistent case of the prosecution which creates doubt
in the theory of the prosecution of which the accused must be given benefit.
Moreover, it is alleged that the Complainant’s body was tied with iron chains. The
fact remains that it is understandable that the mouth of the complainant might be tied
up with a cloth but what is the use of tying up the complainant’s body? Will that
help the accused to commit the act alleged by the prosecution?

It is a logical assumption that a person when tied with iron chains tightly will have
certain marks on the wrists or on the feet, or both or any other vital part of the body.
The version of prosecution that the complainant in the present matter was tied with
aniron chain cannot be relied upon because of the fact that it is nowhere mentioned
in the medical report about any such marks to be present on the victim's body. The
body, specially the forearms, wrist, face and back, should be examined for marks of
violence such as scratches, aberrations and bruises caused as a result of struggle. If
present, they should be properly identified, recorded and carefully described as
regards to their shape, size, situation and probable duration. To substantiate false
charges, marks of violence are sometimes self-inflicted.15 Although there was an
injury on the private parts of the complainant but the medical report is silent on the
point that any marks were found on the body of the complainant due to tying her
with iron chains.

It is Also worth mentioning here that the alleged accused could have easily run away.
Though all the accused were not previously convicted and had no criminal
background the commission of such a heinous crime as alleged by the prosecution
is not at all expected from the first time accused who are mainly students.

15
Modi's, Medical Jurisprudence and Toxicology, 22nd Edition, Butterworth’s, India, New Delhi, 1999.
4.2. NO INDEPENDENT WITNESSES TO THE INCIDENT

There are other two witnesses PW-2 and PW-3 who have seen the complainant in
the naked condition but they are not the witnesses of kidnapping and commission of
rape on the complainant. In the absence of the same no inference can be drawn from
their depositions that these accused persons have committed the said offences.

It is a fact that there is no eye-witness to the offence of kidnapping for abduction and
commission of rape except the complainant and in the absence of the same it cannot
be believed that the version presented by the complainant is true or not.

In Alamelu & Anr. v. State16 the accused were charged u/s 376 & 375 and 366 of
I.P.C. The conviction of the accused based on concurrent findings was set aside as
the Evidence on record did not support findings of High Court and trial court. There
were doubtful facts and circumstances in the case and the conviction of the accused
was on sole testimony of prosecutrix. The question of the sustainability of sole
testimony of the complainant was raised. It was held that even though prosecutrix
had several opportunities to protest and raise an alarm, she did not do so. Conviction
on sole testimony of prosecutrix, on facts, held, is not sustainable. Therefore, High
Court recording conviction on basis of her sole testimony set aside.

Further it was observed:

“In our opinion, the prosecution version has been distorted from beginning to the
end, in an effort to suppress the actual truth. There is no evidence to prove that the
victim was forcibly taken in a car. Neither the owner nor the driver of the car has
been examined in the Court. In our opinion, the trial court as well as the High Court

16
(2012) 2 SCC 385: AIR 2011 SC 715.
had failed to bestow proper attention on the inherent improbabilities contained in
the evidence of the prime witnesses of the prosecution. In our opinion, the entire
story about the abduction by car and the forced marriage seems to have been
concocted to falsely implicate all the accused under Section 366 IPC. Even in the
face of the wholly unreliable evidence, as noticed above, both the Courts have
convicted all the accused under Section 366 and 376 IPC. The High Court, in our
opinion, committed a grave error in confirming the conviction of the
accused/appellants under Section 366 IPC. . In view of the aforesaid, we are of the
considered opinion that the prosecution has failed to prove beyond reasonable doubt
any of the offences with which the appellants had been charged. It appears that the
entire prosecution story has been concocted for reasons best known to the
prosecution. In our opinion, the conclusions recorded by both the courts below are
wholly perverse. The appellants are clearly entitled to the benefit of doubt. In view
of the above, the appeals are allowed. All the appellants are acquitted. They are
directed to be released forthwith.”

In Abbas Ahmad Choudhary v. State of Assam17, the court observed:

“We are conscious of the fact that in a matter of rape, the statement of the prosecutrix
must be given primary consideration, but, at the same time, the broad principle that
the prosecution has to provide its case beyond reasonable doubt applies equally to
a case of rape and there can be no presumption that a prosecutrix would always tell
the entire story truthful”

4.3. THE EARLIER INCIDENT OF HARASSMENT NOT REPORTED BY THE

COMPLAINANT

17
(2010) 12 SCC 115: 2010 Cri. L.J. 2062
According to the prosecution case, Suresh was close friend of Gayanwati and if
Gayanwati was close friendthen she might know the behavior of Suresh but no such
complaint have been made by her in past. This matter should have been reported to
the parents or college authorities or to the police. Being an educated girl and studying
in a Commerce college the complainant should have taken some action or brought
the matter under the notice of her parents or of the college authorities. But no such
complaint had been reported. This raises a doubt on prosecution story.

In Narender Kumar v. State (NCT of Delhi)18 the prosecutix filed an FIR to the effect
that when she was going from village Khirki to Chirag Delhi on that day at about 8
p.m., the appellant caught hold of her hand and dragged her towards the bushes on
the edge of the road and committed rape on her. She could not raise the noise due to
fear. After commission of the offence, the appellant left her there and ran away. The
prosecutrix went to her husband at his working place and from there went to the
police station along with her husband to lodge the FIR. The prosecutrix was
medically examined. On conclusion of the trial, the learned Sessions Court vide
judgment convicted the appellant for the offences under Section 376 IPC and
imposed the sentence of rigorous imprisonment for a period of 7 years and imposed
a fine of Rs.2000/-Aggrieved, the appellant preferred Criminal Appeal before the
High Court which was dismissed vide impugned judgment.

The Supreme Court then said:

“The courts below erred in not appreciating properly the evidence of the defence
witnesses examined by the appellant. If the court finds it difficult to accept the

18
(2012) 7 SCC 171: AIR 2012 SC 2281
version of the prosecutrix on its face value, it may search for evidence, direct or
substantial, which may lend assurance to her testimony19.

Where evidence of the prosecutrix is found suffering from serious infirmities and
inconsistencies with other material, prosecutrix making deliberate improvements on
material point with a view to rule out consent on her part and there being no injury
on her person even though her version may be otherwise, no reliance can be placed
upon her evidence.

In Jai Krishna Mandal & Anr v. State of Jharkhand20, this Court while dealing with
the issue held that, the only evidence of rape was the statement of the prosecutrix
herself and when this evidence was read in its totality, the story projected by the
prosecutrix was so improbable that it could not be believed.

In Rajoo & Ors v. State of Madhya Pradesh21, this Court held that ordinarily the
evidence of a prosecutrix should not be suspected and should be believed, more so
as her statement has to be evaluated on par with that of an injured witness and if the
evidence is reliable, no corroboration is necessary. The court however, further
observed:

“It cannot be lost sight of that rape causes the greatest distress and humiliation to
the victim but at the same time a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The accused must also be protected
against the possibility of false implication and humiliation. There is no presumption

19
See Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818; and Vishnu v. State of
Maharashtra AIR 2006 SC 508; Suresh N. Bhusare & Ors. v. State of Maharashtra (1999) 1 SCC 220
20
(2010) 14 SCC 534
21
AIR 2009 SC 858
or any basis for assuming that the statement of such a witness is always correct or
without any embellishment or exaggeration.”

In Tameezuddin @ Tammu v. State (NCT of Delhi)22, this Court held has under:

“It is true that in a case of rape the evidence of the prosecutrix must be given
predominant consideration, but to hold that this evidence has to be accepted even if
the story is improbable and belies logic, would be doing violence to the very
principles which govern the appreciation of evidence in a criminal matter.”

4.4. ONUS OF PROOF ON PROSECUTION

However, even in a case of rape, the onus is always on the prosecution to prove,
affirmatively each ingredient of the offence it seeks to establish and such onus never
shifts. It is no part of the duty of the defence to explain as to how and why in a rape
case the victim and other witness have falsely implicated the accused. Prosecution
case has to stand on its own legs and cannot take support from the weakness of the
case of defence. However great the suspicion against the accused and however
strong the moral belief and conviction of the court, unless the offence of the accused
is established beyond reasonable doubt on the basis of legal evidence and material
on the record, he cannot be convicted for an offence. There is an initial presumption
of innocence of the accused and the prosecution has to bring home the offence
against the accused by reliable evidence. The accused is entitled to the benefit of
every reasonable doubt.23

22
(2009) 15 SCC 566
23
See Tukaram & Anr. v. The State of Maharashtra AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003
SC 1639
Prosecution has to prove its case beyond reasonable doubt and cannot take support
from the weakness of the case of defence. There must be proper legal evidence and
material on record to record the conviction of the accused. Conviction can be based
on sole testimony of the prosecutrix provided it lends assurance of her testimony.
However, in case the court has reason not to accept the version of prosecutrix on its
face value, it may look for corroboration. In case the evidence is read in its totality
and the story projected by the prosecutrix is found to be improbable, the prosecutrix
case becomes liable to be rejected. The court must act with sensitivity and appreciate
the evidence in totality of the background of the entire case and not in isolation. Even
if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a
determinative factor and the court is required to adjudicate whether the accused
committed rape on the victim on the occasion complained of.

In Rama Nand v. State of Himachal Pradesh24, it was held that the chain of events
furnished by the circumstances is not complete and there exists reasonable grounds
for conclusion consistent with the innocence of the accused. It is well established
principle of law that where the inference of guilt of an accused person is to be drawn
from circumstantial evidence, only those circumstances must, in the first place, be
cogently established. Further, these circumstances should be of a definite tendency
pointing towards the guilt of the accused, and in their totality must unerringly lead
to the conclusion that within all human probability, the offence was committed by
the accused and none else.

guilt of any other person.25

24
AIR 1981 SC 738: 1981 Cri LJ 298
25
See Hukum Singh v. State of Rajasthan AIR 1977 SC 1063: 1977 Cri. LJ 639, (1977) 2 SCC 99, Eradu v. State of
Hyderabad AIR 1956 SC 316: 1956 Cri. LJ 559, Earabhadrappa v. State of Karnataka 1983 AIR 446, 1983 SCR (2)
552 , State of U.P. v. Sukhbasi AIR 1985 SC 1224, 1985 Cri. LJ 1479, Balwinder Singh v. State of Punjab AIR 1996
SC 607 and Ashok Kumar Chatterji v. State of M.P. AIR 1989 SC 1890: 1989 Cri. LJ 2124
The circumstances from which an inference as to the guilt of the accused is drawn
have to be proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those circumstances. In
Bhagat Ram v. State of Punjab26, it was laid down that where the case depends upon
the conclusion drawn from circumstances, the cumulative effect of the
circumstances must be such as to negate the innocence of the accused and bring
home the offences beyond any reasonable doubt.

In State of U.P. v. Ashok Kumar Srivastava, it was pointed out that great care must
be taken in evaluating circumstantial evidence and if the evidence relied upon is
reasonably capable of two inferences; the one in favour of the accused must be
accepted. It was also pointed out that the circumstances relied upon must be found
to have been fully established and the cumulative effect of all the facts so established
must be consistent only with the hypothesis of guilt.

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State

of Maharashtra27 wherein, while dealing with circumstantial evidence, it has been
held that the onus is on the prosecution to prove that the chain is complete and the
infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The
conditions precedent in the words of Hon'ble Court, before conviction could be
based on circumstantial evidence, must be fully established.

26
1967 AIR 927, 1967 SCR (2) 165
27
AIR 1984 SC 1622, 1985 SCR (1)
 MEMORANDUM ON BEHALF OF THE RESPONDENTS

-DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS-

8TH FYLC RANKA NATIONAL MOOT COURT COMPETITION COURT, 2018