TEAM CODE: 30

ICFAI LAW SCHOOL

9TH INTRA MOOT COURT COMPETITION, 2020

IN THE HON’BLE SUPREME COURT OF INDIANA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO. ****/2020

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF:-

THE STATE OF DWELHI ……………………………………………………... APPELLANT

V.

MAYANK SRIVASTAVA ……………………………………………………. RESPONDENT

(Concerning the offences under Sections 375, 415, 90 of the Indian Penal Code of 1860)

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 1

 Contents

1. List of Abbreviation -----------------------------------------------------------------------pg3

2. List of Authorities--------------------------------------------------------------------------pg4
3. List of cases----------------------------------------------------------------------------------pg5
4. Books referred------------------------------------------------------------------------------pg5
5. Dictionary Referred------------------------------------------------------------------------pg6
6. Website referred----------------------------------------------------------------------------pg6
7. Statement of Jurisdiction-----------------------------------------------------------------pg7
8. Statements of Facts------------------------------------------------------------------------pg8
9. Issues Raised--------------------------------------------------------------------------------pg9
10. Summary of arguments-------------------------------------------------------------------pg10
11. Arguments advanced----------------------------------------------------------------------pg11

Issue 1. That the special leave petition is maintainable -----------------11

A.The appellant has locus standii to approach the Honorable SC ----------------11

B.There exists a question of law as well as question of fact ----------------14

Issue 2. Whether the acquital of the accused u/s 376 is justifiable or not? ------------------16

A.There has been no valid consent on the part of the appellant. -------------------16

B.There has been an offence of rape. ----------------18

Issue 3. That respondent is responsible for the offence of cheating. -----------20

Issue 4. That the appellant must be granted pecuniary relief for the physical as well as the
mental damages she suffered. --------------22

12. Prayer------------------------------------------------------------------------------------------pg23

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 2

 1. LIST OF ABBREVIATIONS
ABBREVIATIONS FULLFORM

& And

AIR All India Reporter

Art. Article

Const. Constitution of India, 1950

Cr.LJ Criminal Law Journal

CrPC Code of Criminal Procedure

FIR First Information Report

HC High Court

ICA Indian Contract Act 1872

IPC Indian Penal Code, 1860

Sec Section

Ss. Sections

SC Supreme Court

SCC Supreme Court Cases

v. Versus

2. LIST OF AUTHORITIES
MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 3
  CONSTITUTION

1. THE CONSTITUTION OF INDIA,1950

 ACTS AND STATUTES

1. THE CODE OF CRIMINAL PROCEDURE, 1973

2. THE INDIAN EVIDENCE ACT, 1872

3. THE INDIAN PENAL CODE, 1860

INDEX OF SECTIONS :

 THE CONSTITUTION OF INDIA,1950

1. Article 136

 THE INDIAN EVIDENCE ACT, 1872

1. Section 165

 THE INDIAN PENAL CODE, 1860

1. Section 375
2. Section 376
3. Section 417
4. Section 209
5. Section 415

3. LIST OF CASES

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 4

 1. Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26
2. Sadhu Singh v. Pepsu, AIR 1954 SC 271
3. Pawan Kumar v State of Haryana, (2003)11 SCC 241
4. C.C.E v Standard Motor Products, AIR 1989 1298 SC 1298
5. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC 214 (SC
6. Chunilal Mehta & Sons, Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962
SC 1314
7. Dhakeswari Cotton Mills Ltd. v. CIT, Bengal 1955 SCR (1) 941
8. Delhi Judicial Service Assn v. State of Gujarat, (1991) 4 SCC 406
9. Arunachalam vs P. S. R. Sadhanantham AIR 1979 SC 1284
10. Pritam Singh v. State, AIR 1950 SC 169
11. Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211
12. Indira Kaur And Ors. vs Sheo Lal Kapoor (1988) 2 SCC 488
13. Vali Pero v. Fernando Lopez, 1989) 4 SCC 674
14. Haripada v. State of Bengal, 1956 SCR 639
15. Pramod Suryabhan Pawar v. State of Mahrashtra (2019) SCC 608
16. Deepak Gulati v. State of Haryana, AIR 2013 SC 2987
17. Uday v. State of Karnatka, AIR 2003 SC 1639
18. Dilip Kumar v. State of Bihar, AIR 2005 SC 203
19. Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC615
20. Pradeep Kumar Verma v. State of Bihar & others, AIR 2007 SC 3059
21. Anurag Soni v. State of Chhattisgarh, AIR 2019 SC 1857
22. P. Bhanumathi v. Premlatha, (1978) Andh L T. 358 (367)
23. Manikdas v. State, 2012 CrLJ 1954

4. BOOKS REFERRED

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 5

 1. Dr. D.D. Basu, Commentary on Constitution of India, (8th Ed., Lexis Nexis, 2010).

2. H.M. Seervai, Constitutional Law of India, (4th Ed., Universal Law Publication,2015)

3. J.N. Pandey, Constitutional Law Of India, (51st, Central Law Agency, 2018)

4. KD Gaur, Criminal Law: Cases & Materials, (9th Ed., Lexis Nexis, 20018)

5. KD Gaur, The Indian Penal Code, (15th Ed. , Law Publishers India Pvt. Ltd., 2016)

6. Ratanlal & Dhirajlal, The Indian Penal Code, (34th Ed., Lexis Nexis, 2014)

7. Ratanlal & Dheerajlal, Law of Evidence (25th Ed, Lexis Nexis, 2013)

8. R.V. Kelkar, The Code of Criminal Procedure (6th Ed., Lexis Nexis 2016)

9. S.N. Mishra, Indian Penal Code, (21st Ed., Central Law Publications,2018)

10. K.N. Chandrasekharan Pillai, (2nd Ed, Eastern Book Company,2015)

5. DICTIONARY REFERRED
1. Aiyar, P Ramanatha Iyer, The Law Lexicon, (2nd Ed., 2006)

2. Garner, Black’s Law Dictionary, (9th Ed., Thomas & West, U.S.A 1990)

6. WEBSITE REFERRED
1. www.manupatrafast.in (Last visited on 23rd JANUARY, 2020)

2. www.scconline.com (Last visited on 21st JANUARY, 2020 )

3. www.supremecourtofindia.nic.in (Last visited on 22nd JANUARY, 2020)

4. www.westlawindia.com (Last visited on 23rd JANUARY, 2020)

7. STATEMENT OF JURISDICTION

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 6

 The appellant has approached the Honourable Supreme Court of Indiana through Art. 136
of the Const. of India, 1950, as the legal conditions of Indiana are pari materia to that of India.
Art. 136 of the Const. of India read here as under:

Special leave to appeal by SC-

(1) Notwithstanding anything in this Chapter, the SC 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.

The Supreme Court of Indiana has jurisdiction to hear and entertain any appeal against the order
passed by any of the subordinate Courts and Tribunals and the exercise of this power is left
entirely to the discretion of the Supreme Court.

The memorandum for the Appellant in the matters of State of Dwelhi v. Mayank Srivastava set
forth the Facts, Contentions and Arguments present in the case.

8. STATEMENT OF FACTS

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 7

1. The Appellant Ms. Sadia Khan and the Respondent Mr. Mr. Mayank Srivastava both are
residents of Dwelhi and used to work at ‘Aggarwal enterprises Pvt. Ltd.’, Dwelhi for the
marketing team.
2. The respondent left the job after working there for 10 months and soon after him the
appellant too left the job. Both of them joined a new company together viz. ‘Sharma Pvt.
Ltd.’ where the respondent proposed the appellant in the office and she accepted his
proposal.
3. On 25.02.2019, after a long telephonic conversation on the occasion of the respondent’s
birthday they decided to meet and celebrate his birthday. They met at central gate metro
station and checked into 7 wonders guest house at Hurugram.
4. The respondent assured the appellant that he wanted to marry her and on that ground he
solicited sexual favours from her. Relying upon the veracity of which the appellant consented
for sexual intercourse.
5. Afterwards, they did not meet for 4 to 5 days and the respondent left for Tranglore for two
months. Later the appellant learnt from the respondent’s brother that “the respondent is
already married and has a son but the wife and son don’t reside with him.” On 02.05.2019,
upon meeting, the respondent confirmed about his marriage and child to the appellant.
6. On 20.06.2019, during the appellant’s routine checkup she was informed by her doctor that
she is pregnant and this information was expeditiously forwarded to the respondent. Upon
receiving this information, the respondent assured the appellant that his subsisting marriage
has been irretrievably broken down and that he would obtain divorce from his wife and then
he would marry the appellant.
7. Days went by and the appellant tried her best to communicate but all her efforts went in vain
as the respondent never paid any attention to her messages. After making all futile attempts
she lodged an F.I.R against the respondent under section 376 and 417 of IPC.
8. The Court of District and Session judge convicted the respondent under section 376 and 417
of IPC. Thereafter, the hon’ble High Court of Dwelhi, acquitted the appellant under section
376 of IPC and convicted under section 417 of IPC.

Hence, this appeal.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 8

 9. ISSUES RAISED

1. THAT THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

2. WHETHER THE ACQUITTAL OF THE ACCUSED U/S 376 OF IPC

OF 1860 IS JUSTIFIED OR NOT?

3. THAT THE RESPONDENT IS RESPONSIBLE FOR THE OFFENCE

OF CHEATING.

4. THAT THE APPELLANT IS LIABLE TO BE PAID A PECUNIARY

COMPENSATION.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 9

 10. SUMMARY OF ARGUMENTS
1. THAT THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

It is humbly submitted before this Honourable Court that the present appeal is maintainable
under article 136 of the Constitution of India. Article 136 of the Constitution of India is the
residuary power of SC to do justice where the court is satisfied that there is injustice. The chain
of circumstantial evidence is complete as to regarding the point of the guilt of accused and HC
acquitted the accused. Therefore, there has been a grave injustice. The jurisdiction of SC can
always be invoked when a question of law of general public importance arises. In the present
case, the impugned decision was mechanically passed without application of reason by the HC.

2. WHETHER THE ACQUITTAL OF THE ACCUSED U/S 376 IS JUSTIFIABLE OR

NOT?

It is humbly submitted before the SC of Indiana that the accused has obtained the consent of the
respondent by way of concealing the crucial facts. Consent through misrepresentation is no
consent at all. This fact alone creates a solid ground for conviction of the accused.

3. THAT THE RESPONDENT IS RESPONSIBLE FOR THE OFFENCE OF

CHEATING.

It humbly submitted that there was active concealment of crucial information which when
exposed would have changed the opinion of the appellant. A malifide concealment is cheating
within the meaning of Sec. 417 IPC.

4. THAT THE APPELLANT MUST BE GRANTED PECUNIARY RELIEF FOR THE

PHYSICAL AS WELL AS THE MENTAL DAMAGES SHE SUFFERED.

It is most humbly submitted that pregnancy is not a state for taking such strain. the
appellant had to suffer all the plights alone during the course of the trial which has adversely
affected the health of the appellant as well as the child. Compensation must be granted to the
victim/appellant u/s 357(3) CrPC.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 10

 11. ARGUMENTS ADVANCED

1. THAT THE SPECIAL LEAVE PETITION IS MAINTAINABLE.

It is humbly submitted before this Honourable court that the present SLP filed by State of Dwelhi
is maintainable in the SC under Article 136 of the Constitution of India. Article 136 of the
Constitution elucidates that Special leave to appeal by the SC –

(1)Notwithstanding anything in this chapter, the SC 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

The power of the Court to hear appeals in this article is much wider and general. It vests in the SC
plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave
against:-

(i) any judgment, decree, determination or order,

(ii) in any cause or matter,
(iii) Passed or made by any court or tribunal

The SLP has been filed u/Art., 136 of the Indian Consti., as the

A. The appellant has locus standii to approach the Honorable SC.

It is humbly submitted before this Honourable SC that the appellant has locus standi to
approach the Honourable SC in the present case. Article 136 of the Constitution is couched in
the widest phraseology1. This Court's jurisdiction is limited only by its discretion2. It is
pertinent to note that the scope of Article 134 providing appeals to the SC in criminal matters
is limited whereas Article 136 is very broad-based & confers discretion on the court to hear
“in any cause or matter”. Therefore, criminal appeals may be brought to the SC under article
136 when these are not covered by Article 1343.

In the present case the HC erred in setting aside the order of conviction. The
jurisdiction conferred under article 136 on the SC is corrective one & not a restrictive
1
1 Nihal
Singh & Ors v. State Of Punjab, AIR 1965 SC 26
2
Ibid.
3
Sadhu Singh v. Pepsu, AIR 1954 SC 271

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 11

 one. A duty is enjoined upon the SC to exercise its power by setting right the illegality in
the judgments, it it is well-settled that illegality must not be allowed to be perpetrated &
failure by the SC to interfere with the same would amount to allowing the illegality to be
perpetuated4.

Article 136 is the residuary power of SC to do justice where the court is satisfied that
there is injustice5. The principle is that this court would never do injustice nor allow
injustice being perpetrated for the sake of upholding technicalities6.

A Constitution Bench of SC7, while explaining the import of the said expression,
observed that: “The proper test for determining whether a question of law raised in the
case is substantial would, in our opinion, be whether it is of general public importance
or whether it directly & substantially affects the rights of the parties & if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views.”
Again, the SC said in another case8
“It is not possible to define the limitation on the exercise of the discretionary jurisdiction
vested in the Court by Article 136. The limitation whatever they may be, are implicit in
nature & character of the power itself. It being an exceptional & overriding power,
naturally it has to be exercised sparingly & with caution & only in special &
extraordinary situations. Beyond that, it is not possible to fetter the exercise of this power
by any set formula or rule”

In another case of Arunachalam vs P. S. R. Sadhanantham9, it was again

contended by the SC that:-
"Article 136 of the Constitution of India invests the Supreme Court with a
plentitude of plenary, appellate power over all courts and Tribunals in India. The power
is plenary in the sense that there are no words in Article 136 itself qualifying that power.
But, the very nature of the power has led the court to set limits to itself within which to
exercise such power. It is now the well-established practice of this Court to permit the
invocation of the power under article 136 only in very exceptional circumstances, as
when a question of law of general public importance arises or a decision shocks the
conscience of the Court. But, within the restrictions imposed by itself, this Court has the
4
Pawan Kumar v State of Haryana, (2003)11 SCC 241 (SC); see also H.M. Seervai, Constitutional Law of India (4 th Ed.
Vol. I 2010)
5
C.C.E v Standard Motor Products, AIR 1989 1298 SC 1298, see also H.M. Seervai, Constitutional Law of India (4 th
Ed. Vol.II 2010).
6
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004)3 SCC 214 (SC)
7
Chunilal Mehta & Sons, Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314
8
Dhakeswari Cotton Mills Ltd. v. CIT, Bengal 1955 SCR (1) 941
9
AIR 1979 SC 1284

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 12

 undoubted power to interfere even with findings of fact, making no distinction between
judgments of acquittal and conviction, if the High Court, in arriving at those findings,
has acted "perversely or otherwise improperly."

In Delhi Judicial Service Assn. v. State of Gujarat10, the SC has held that under article
136 the SC has wide power to interfere and correct the judgment and order passed by any
court or tribunal in India. In addition to the appellate power, the court has special
residuary power to entertain appeal against any order of any court.
Even if we assume that the case doesn’t involve ‘substantial’ question of law, SC in the
exercise of its power conferred under article 136 can entertain the present appeal. Article
136 uses the wording ‘in any cause or matter’11. This gives widest power to this court to
deal with any cause or matter, even if it involves question of fact.

This case establishes the position that the powers of the SC in appeal under article 136
are not restricted by the appellate provisions contained in the Cr.PC or any other statute.
Hence, in the present case appellant has locus standi to approach the Honourable SC. The
SC under article 136 of the Constitution following principles emerge12:
i. The powers of this Court under article 136 of the Constitution are very wide but in
criminal appeals this Court does not interfere with the concurrent findings of fact
save in exceptional circumstances.
ii. It is open to this Court to interfere with the findings of fact given by the HC, if the
HC has acted perversely or otherwise improperly.
iii. It is open to this Court to invoke the power under Article 136 only in very
exceptional circumstances as and when a question of law of general public
importance arises or a decision shocks the conscience of the Court.
iv. When the evidence adduced by the prosecution fell short of the test of reliability &
acceptability and as such it is highly unsafe to act upon it.
v. Where the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of record &
misreading of the evidence, or where the conclusions of the HC are manifestly
perverse & unsupportable from the evidence on record.
In the instant case the consent for sexual favours was obtained under false by way of
actively concealing the important facts, yet the HC has acquitted the accused from the
charges of rape. This reckless behavior of High Court clearly proves that the decision was
given perversely or improperly. And therefore this petition is maintainable before the
Supreme Court of India.
10
(1991) 4 SCC 406
11
Pritam Singh v. State, AIR 1950 SC 169
12
Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 13

 B. There exists a question of law as well as question of fact.

In the instant case the HC has gravely erred by recklessly ignoring the fact that the
accused had deliberately avoided the appellant after the commission of rape. This shows
nothing but the malafide intentions of the respondent.

In case of Indira Kaur And Ors. vs Sheo Lal Kapoor13, it was held as following:-

“If and when the Court is satisfied that great injustice has been done it is not only the 'right'
but also the 'duty' of this Court to reverse the error and the injustice and to upset the finding
notwithstanding the fact that it has been affirmed thrice.”

In exceptional cases the SC admits the appeals under Article 136 even though the appellant
has not exhausted all the other remedies, if there are exceptionally sound reasons for such
admission.

In case M.V. “Vali Pero” V. Fernanedo Lopez14, it was held that:-

“This academic exercise is unnecessary in the present case since it cannot be doubted that
irrespective of the question of res judicata, earlier decision on the same point by a Division
Bench of the High Court will at least be a binding precedent when the matter is reagitated
before the Division Bench hearing the appeal against the final decision in the suit. In such a
situation directing the resort to the remedy of an appeal under the Letters Patent against the
final decision in the suit will needlessly delay decision of the point by this Court. We are,
therefore, of the opinion that, in the present case, it is neither necessary to decide the
question of res judicata argued before us nor would it be appropriate to refuse leave and
direct the petitioner to first exhaust the remedy of an appeal under the Letters Patent in the
High Court. We, accordingly, proceed to decide the point involved on merits. Leave
granted.”

In Haripada v. State of West Bengal15, Supreme Court held that:-

“No High Court has the jurisdiction to pass on mere questions of fact for further
consideration by this Court under the relevant articles of the Constitution. We no doubt
possess that power and in proper cases have exercised it under article 136(1). If there has
been a gross miscarriage of justice or a departure from legal procedure such as vitiates the
whole trial we would certainly intervene and we would also intervene if even the findings of
fact were such as were shocking to our judicial conscience and grant in such cases special
leave to appeal under article 136(1)”.

13
(1988) 2 SCC 488, 499:AIR 1988 SC 1074
14
(1989) 4 SCC 671, 675:AIR 1989 SC 2206
15
1956 AIR 757, 1956 SCR 639

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 14

 In this very case there has been a huge miscarriage of justice. Further, the appellant has been
subjected to injustice, being the aggrieved party the appellant seeks justice. Therefore, this
case is maintainable in the Hon’ble Court.

2. WHETHER THE ACQUITAL OF THE ACCUSED U/S 376 IS JUSTIFIABLE OR

NOT?

It is most humbly submitted before the Hon’ble SC of Indiana that the respondent (Mayank) has
committed the most heinous crime of rape on the appellant (Sadia) under the false pretext of
marriage.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 15

The respondent maliciously informed the appellant that he wanted to marry her and on that
ground he had solicited sexual favors from the appellant. The appellant consented for the sexual
act of passion solely on the veracity of the respondent. Under Penal law Rape has been defined
under “section 375” which reads as follow:-

“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following
descriptions:-

First: Against her will.

Secondly: Without her consent.

Thirdly: With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

Fourthly: With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself
to be lawfully married.

Fifthly: With her consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.

Sixthly: With or without her consent, when she is under eighteen years of age.

Seventhly: When she is unable to communicate consent.

Explanation: consent means an unequivocal voluntary agreement when the women by words,
gestures or any form of verbal non verbal communication, communicates to participate in the
specific sexual act.

A. There has been no valid consent on the part of the appellant.

It must be noted that the appellant did not show any whatsoever inclination towards establishing
a sexual relationship with the respondent. Even on 25.02.2019 the appellant had accepted the
respondent’s invitation just to celebrate the respondent’s birthday and cut the cake. On the said
date the respondent thought to make use of the occasion and veraciously assured to marry the
appellant and asked for sexual favours to which the appellant consented. Oblivious to the fact
that the respondent did not intend to marry her, in fact he was just using the appellant to quench
his sexual desires.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 16

 Under the Penal Code, 1860, meaning of consent with respect to sec. 375 is defined u/s
90.

A consent is no consent if it is given by a person in the fear of injury (a) or, under a
misconception of fact (b), and is the person doing the act knows (c), or has reason to believe(d),
that the consent was given in consequence of such fear or misconception.

It can clearly be inferred from the facts of the case that aforementioned four ingredients
(b,c&d) weren’t fulfilled.

In Pramod Suryabhan Pawar v. State of Mahrashtra16, it has been pointed out that:-

“Consent based on a misconception of fact is not consent in the eye of law—thus, in a

case of woman engaging in sexual relations on false promise of marriage, her consent is based
on misconception of fact and such sexual act will amount to rape.

Further, it was held, where promise to marry is false and intention of the maker at the
time of making itself was not to abide by it but to deceive woman to convince her to engage in
sexual relations, there is a misconception of fact that vitiates woman’s consent…,

In Deepak Gulati v. State of Haryana17, while referring Uday v. State of Karnataka18,

Dilip Kumar v. State of Bihar19, Yedla Srinivasa Rao v. State of A.P.20, Pradeep Kumar
Verma v. State of Bihar andAnr21, the SC of India concluded that:-

In the event that the accused's promise is not false and has not been made with the sole
intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to
rape. Thus, the same would only hold that where the prosecutrix, under a misconception off act
to the extent that the accused is likely to marry her, submits to the lust of the accused, such a
fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.

In Dilip Kumar v. State of Bihar22, the SC has reasoned:-

The factors set out in the first part of Section 90 are from the point of view of the victim. The
second part of Section 90 enacts the corresponding provision from the point of view of the accused. It
envisages that the accused too has knowledge or has reason to believe that the consent was given by
16
(2019) SCC 608
17
AIR2013SC2987
18
AIR2003 SC 1639
19
AIR2005 SC 203
20
(2006) 11 SCC 615
21
AIR2007 SC 3059
22
AIR2005 SC 203

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 17

the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis
on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements
of both the parts should be cumulatively satisfied. In other words, the court has to see whether the
person giving the consent had given it under fear of injury or misconception of fact and the court should
also be satisfied that the person doing the act i.e. the alleged of ender, is conscious of the fact or should
have reason to think that but for the fear or misconception, the consent would not have been given.
This is the scheme of Section 90 which is couched in negative terminology.

Seeing the facts of the instant case in the light of above mentioned cases it is well established
that the consent was obtained through misconception. As a result there wasn’t any consent at all.

B. There has been an offence of rape.

To constitute the offence of rape the act of the respondent (accused) must fall into any of the
seven categories mentioned u/s 375. The instant case falls under the second category.

The facts of the instant case are to significant extent similar to the facts of the case Anurag Soni
v. State of Chhattisgarh23, wherein,

 The accused made false promise of marriage to the victim to gain sexual favours from
her.
 The accused did not intend to keep the promise from the initial stage.
 The accused was convicted by the Sessions Court as well as the HC u/s376 IPC and was
awarded rigorous imprisonment for the time period of 10 years.

When the case went in front of the Hon’ble SC in appeal, the court gave the following
ruling:-
In view of the above and for the reasons stated above, we are of the opinion that both the
Courts below have rightly convicted the Appellant accused Under Section 376 of the
Indian Penal Code. We also maintain the conviction of the Appellant-accused Under
Section 376 of the Indian Penal Code…,

In the light of the aforementioned cases, it is humbly submitted that there has been a huge
miscarriage of justice by acquitting the respondent (accused) from the rape charges. Further, it is
most sincerely recommended that the accused shall be duly punished for his offence.
23
AIR2019SC1857

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 18

3. THAT THE RESPONDENT IS RESPONSIBLE FOR THE OFFENCE OF CHEATING.

It is most humbly submitted before this Hon’ble Supreme Court of India that respondent is liable
for punishment for cheating under Section 417.

Cheating is defined in section 415 of IPC which reads as follow:- 415.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 19
Cheating— Whoever, by deceiving any person, fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to consent that any person shall retain any
property, or intentionally induces the person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived, and which act or omission causes or is likely to
cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this

section. The essentials ingredients of cheating are:-
1) Deception of any person.
2) (a) Fraudulently or dishonestly inducing that person-
i. To deliver any property to any person, or
ii. To consent with any person any person relating to any property; or
iii. (b) Intentionally inducing that person to do which he would not do or omit to do,
and that the act or omission causes or is likely to cause damage or harm, to that
person in body, mind, reputation or property.

In P. Bhanumathy vs. Premlatha12,(1978)24it was held that:-

“dishonest concealment is a deception”.

In another case Manik Das v. State25 wherein,

The victim was an unmarried and the accused with the assurance of marrying her had undergone
sexual intercourse with her. When the girl refrained from such act the accused withdrew the
proposal of marriage. The court held this within the meaning of cheating u/s 415 IPC.

Similarly in the instant case there has been a promise of marriage, but the marriage hasn’t been
solemnized owing to the reason that the accused has already been married.

The respondent had deliberately concealed this vital information from the appellant. Afterwards
the accused had tried to avoid the appellant for months.
24
Andh LT 358 (367)
25
2012 CrLJ 1954

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 20

 All the above facts point out clearly that the respondent kept the petitioner in dark as he had not
disclosed the truth of his marriage and that he had a son. The petitioner came to know about it
from the brother of the respondent. The respondent never disclosed the reality on his own.

This amounts to dishonest concealment on part of the respondent as when he was already
married and had a son and the divorce proceedings were going on. It was the same time during
which the respondent requested sexual favors from the petitioner.

He later assured the petitioner, that he would marry her only after 3 months, when he would
obtain divorce from his wife. She informed the respondent about her pregnancy. It must be noted
that divorce cases take time to be deposed off. Such a promise was not based on reality.

Instead of marriage the respondent only delivered false assurances to the appellant. However he
did nothing substantial to prove that he actually wanted to marry the petitioner. She became
anxious as she was pregnant and the ignorant attitude of the respondent was persistent.

This is undisputedly a case of cheating.

4. THAT THE APPELLANT MUST BE GRANTED PECUNIARY RELIEF FOR THE

PHYSICAL AS WELL AS THE MENTAL DAMAGES SHE SUFFERED.

It has been established without an iota of doubt that the respondent has

 maliciously taken benefit of the trust, love and belief of the appellant and
 Has lied to her on many occasions.
 Committed rape on her.
 Cheated her.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 21

  Due to the actions of the respondent the accused has been subjected to public shame and
ridicule.
 The accused had to suffer alone during the tender and sensitive state of pregnancy.

It is agreed that rape is a wrong against the society at large, and for that the respondent should be
penalized. But, such penalty would be of no use to the appellant without a pecuniary aid for all
the wrongs she has suffered.

Provisions for such compensation are given u/s 357 (3) of CrPC which reads:-

When a court imposes sentence of which fine does not form a part, the court may, when passing
the judgment order the accused to pay, by way of compensation such amount as may be specified
in order to the person who has suffered any loss or injury by reason of the act for which the
accused has been so sentenced.

12. Prayer

Wherefore, in the lights of facts stated, issues raised, authorities cited and arguments advanced, it
is most humbly prayed and implored before the Honourable Court, that it may be graciously
pleased to adjudge and declare that –

1. The order of acquittal u/s 376 IPCis not valid.

2. The conviction u/s 417 IPC is valid.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 22

3. The appellant must be granted compensation.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity & Good Conscience.
For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

MEMORIAL HUMBLY ON BEHALF OF THE APPELLANT Page 23