8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

TC-

8THFYLC RANKA NATIONAL MOOT COURT COMPETITION,

2018

IN THE HON’BLE SUPREME COURT OF INDIA

Appellate Jurisdiction Ap No.

In the Matter of Art 134A of the Constitution of India

STATE OF RAJASTHAN … PETITIONER

V.

SURESH & Ors. … RESPONDENT

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF INDIA

1|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

Table of Contents
1. LIST OF ABBREVIATION ............................................................................................................ 3
2. INDEX OF AUTHORITIES ............................................................................................................ 4
i. List of Cases.............................................................................................................................................. 4
ii. List of Statutes .......................................................................................................................................... 5
iii. List of Books ............................................................................................................................................. 6
iv. Webliography............................................................................................................................................ 6
3. STATEMENT OF JURISDICTION ................................................................................................. 7
4. STATEMENT OF FACTS .............................................................................................................. 8
5. STATEMENT OF ISSUES ........................................................................................................... 10
6. SUMMARY OF ARGUMENTS .................................................................................................... 11
7. ARGUMENT ADVANCED .......................................................................................................... 12
8. PRAYER ..................................................................................................................................... 27

2|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

LIST OF ABBREVIATION

A1 Accused no. 1
AA Arms Act
Art. Article
Cr.PC Code of Criminal Procedure
F.No. FIR No.
IPC Indian Penal Court
Ors. Others
P.W. Prosecution Witnesses
r/w Read With
RAJ Rajasthan High Court
SC Supreme Court
SCC Supreme Court Case
Sec Section
U/S Under Section
V. Versus

3|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

INDEX OF AUTHORITIES

List of Cases
1. Malleshi v. State of Karnataka 2004 Cri. L.J. 4645 (S.C.)

2. Hori Ram Singh v. Emperor AIR 1939 PC 43.

3. Balwinder Singh V. State of M.P. AIR 1989 SC 1890, 1989 CriLJ 2124.
4. Jai Krishna Mandal & Anr v. State of Jharkhand (2010) 14 SCC 534.
5. Kuppuswami Rao v. The King AIR 1949 PC 1.
6. State of M.P V. Jagir Singh & Ors 1973 AIR 2006 SC 627.
7. State of M.P V. Sunil AIR 2006 SC 627.
8. Vishnu v. State of Maharashtra AIR 200 SC 508.
9. Uday v. State of Karnataka, AIR 2003 SC 1639.
10. State of U.P. v. Ashok kumar Srivastava 1992 AIR 840, 1992 SCR (1) 37.
11. State of U.P. v. Sukhbasi AIR 1985 SC 1224, 1985 Cri LJ 1479.
12. Balwinder Singh v. State of Punjab AIR 1996 SC 607.
13. Rajoo & Ors. v. State of M.P. AIR 2009 SC 858: (2008) 15 SCC 133.
14. Tameezuddin @ Tammu v. State (NCT of Delhi) (2009) 15 SCC 566
15. Tukaram & Anr. v. The State of Maharashtra AIR 1979 SC 185.
16. Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr., AIR 2003 SC 818.
17. State of U.P. v. Ashok kumar srivastava 1992 AIR 840, 199 SCR (1) 37.
18. Rama Nand v. State of Himachal Pradesh AIR 1981 SC 738: 1981 Cri LJ 298.
19. Suresh N. Bhusare & Ors. v. State of Maharashtra (1999) 1 SCC 220.
20. Bhagat Ram v. State of Punjab 1967 AIR 927, 1967 SCR (2) 165.
21. Alamelu & Anr. v. State AIR 2011 SC 715: (2012) 2 SCC 385.
22. Balwant singh V. State of Punjab, (1987) 2 SSC 27: AIR 1987 SC 1080: 1987 Cr LJ 971.
23. Utam V. State of Maharashtra, 1991 Cr LJ 1644 Bom.
24. Arun Kumar V. State of U.P.,AIR 1989 SC 1445 : 1989 Cr LJ 1460 : (1989) Supp (2) SCC 322.
25. Promod Mehto V. State of Bihar, AIR 1989 SC 1475

4|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

List of Statutes
1. The Code of Criminal Procedure, 1973
2. The Indian Evidence Act, 1872
3. Indian Penal Code, 1860
4. Constitution of Indian Act, 1950
5. Arms Act, 1959

5|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

List of Books

1. K.D. Garu, A Textbook on the Indian Penal Code, 4th Edition,2012, Universal Law
Publishing Co. Pvt. Etd.

2. K.D. Gaur, Criminal Law: Cases and materials, 6th Edition,2009, Lexis Nexis Butterworth
Wadhwa, Nagpur

3. C.K. ‘Thawan’, Criminal Procedure, 5th Edition, Lexis Nexis Butterworths Wadhwa, Nagpur,
2011.

4. Ratanlal and Dhirajlal, The Law of Evidence, 24th Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.

5. Sarkar SC, Code of Criminal Procedure, 3rd Edition, Lexis Nexis Butterworths Wadhwa,
Nagpur.
6. R.V. Kelkar’s, Criminal Procedure, 5th Edition, Eastern Book Company, Lucknow, 2008
7. M. Monir, Law of Evidence, Vol., 14th Edition, Universal Law Publishing Co. Pvt. Ltd., 2006

Webliography
1. http://www.vakilno1.com/
2. www.indiankanoon.com
3. www.lawyersclubindia.com
4. www.ncrb.nic.in
5. www.supremelaw.in
6. www.manupatra.com
7. www.lawyerservices.in
8. www.findlaw.com

6|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

STATEMENT OF JURISDICTION

The respondent in the present case has been empowered by Article 136 of the Constitution of India,
1950 to intiate the present proceedings in the Hon’ble Supreme Court of India. The respondent most
humbly and respectfully submits to the jurisdiction of the Hon’ble Supreme Court in the present
matter. ………….

7|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

STATEMENT OF FACTS

1. Miss Gyanwati, aged about 20 years was studying in commerce college, Jaipur in B.com
(final). She had a close friend Mr. Suresh S/O Ex-chief Minister, aged about 22 years
studying in the same college in M.Com.

2. On 31.12.2017 after New Year’s party Miss Gyanwati was going in her Scooty to her
residence neat ‘Jawahar’ Circle three students namely Suresh, Mahesh and Dinesh S/O DIG
Police, all students of commerce College intercepted her. Knocked the Scooty and
Kidnapped on gun point and carried her in Honda City Car bearing Number HR 16F 7337 to
distant and lonely place in the interior on Tonk Road, Jaipur.

3. At the said place having only one room, two students Gyanesh and Virender were waiting.
Miss Gyanwati was carried in the room where all the five students drank Scotch Whisky
and forcibly made her naked.

4. She resisted and cried, but was tied with black rope. No one came to rescue her. Thereafter, she
was raped by all five including Virender, who was minor with age 17 years.

5. Miss Gyanwati, having been raped by all the five, was left naked in the room, which was
locked and 4 of them left leaving Virender to watch and wait.

6. Before leaving the victim was tied along with Brijesh whose father is a millionaire. They had
snacks with whisky. Suresh enquired of Brijesh, as to whether he wants to have intercourse
with the victim. He accepted the offer and both raped the victim one after the other. The
victim became unconscious and her uterus was ruptured, with bruises on the breast and other
parts of the body.

7. On 02.01.2018 Shri Mahesh contacted on phone (land-line) Manmohan (father of Gyanwati),

informed him that his daughter has been kidnapped and raped and if he wants her release to a
safe place, he should come to the specified place along with a ransom of 5 lacs, else she would
be killed and her body would be thrown in a pond and he told he will ring up again in the early
morning on 03.01.2018 and by then he should arrange ransom and agree to come alone.

8. On 03.01.2018 he was again contacted on mobile by Brijesh, who required him to come alone
at the specified place in the hill-side at 11:00 A.M. with the money and without arms.
Manmohan had no option he borrowed Rs. 5 lacs from Gyanchand and on motorbike left for the
scheduled place.
9. He was received by Dinesh and after taking his physical search as sent to Mahesh, who was

8|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

sitting at a distance, eyes of shri Manmohan was blind folded with cloth, he was carried to
the room, which was locked, he took his daughter to his residence and told whole story to his
wife Mohini, who cross-checked with the victim. All the three took the decision to report to the
police and to see that the culprits are caught and prosecuted.

10. F. NO. 10 dated 03.01.2018 with name of all the accused for offences under section 376, 364,
364A/34 IPC r/w Section 25/27 of the Arms Act was registered at Chaksu Police Station and
statement of the victim was recorded u/s 161 Cr.P.C.

11. Being aggrieved by the aforesaid orders, the complainant filed an appeal before the Hon’ble
Supreme Court and the court issued notice to the victim her father central government
Rajasthan State and all the Ors. States as to the appeal in regards to constitutional validity of
the provision and accused Suresh and Ors. not to undergo life imprisonment for whole of the
convicted life.

9|Page
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

STATEMENT OF ISSUES

1. Whether the conviction of the accused for the alleged offence is fair and justified or not?
2. Whether the theory presented by the prosecution is reliable or not?
3. Whether the petitioner is liable under section 376,364A, 465,468,471,120B r/w section 34 of
the Indian penal code?

10 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

SUMMARY OF ARGUMENTS

1. Whether the conviction of the accused for the alleged offence is fair and justified or
not?

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 report 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. Also, the source of money found from the place where the victim has been
kidnapped, raped, kept in captive and released after the ransom is not verified by the
investigating agency.

2. Whether the theory presented by the prosecution is 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.

3. Whether the petitioner is liable under section 376,364A, 465,468,471,120B r/w

section 34 of the Indian penal code?

The charges Framed on accused and co-accused are false charges and the judgment given by
the lower court was not justice. The trail court has neglected the substantial thing which
changes the whole verdict of case. While dealing with the case where six person were falsely
implicated for committing rape on the prosecution/ victim by threatening her and demands for
ransom. The Framed on petitioner are falsely implicated under section 376, 364A, 465, 468,
471, 120B r/w section 34 of Indian Penal Code.

11 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

ARGUMENT ADVANCED

Contention 11: The conviction of the accused for the alleged offence is fair and justified or not.

It is vehemently contended before this court that both the lower courts have been erroneous
in convicting the accused person. firstly, the charges framed against the accused have been
improper. Secondly, both the lower court have been erroneous to mention the offence under
the code under which the conviction of the accused has taken place. Thirdly, the charges of
kidnapping is not established by the prosecution in the absence of any material on record.
Forthly, the complaint has named the accused in the F.I.R although the accused are unknown
to the complainant which renders the prosecution story doubtful. Fifthly, the medical report
is incomplete and several pre- requisite tests of the accused have not been conducted. Sixthly,
the source of money alleged to be absence of the aforesaid, it would not be safe to convict
the accused persons.

Also, the hon'ble trial court has verdict for life imprisonment to the accused based on the
appreciation of defence evidence. But there have been several lacunas in the prosecution
theory and until the case is proved beyond reasonable doubt, conviction of the accused cannot
take place.
Charges framed against the accused not fair and proper.
The case against the accused has been registered under section 376 2(g) and 364A of the Indian
Penal Code. 364A of the Indian penal code talk about kidnapping for the ransom. 364A 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. Therefore the charge framed against is not fair and proper.

1 Kidnapping for ransom, etc.: 364A IPC

12 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

In Malleshi v. State of Karnataka2 the demand of ransom has been clearly established and the
role played by the accused has been analysed by the court below the victim was recovered on
disclosure made by the accused was held liable to be convicted u/s 364A. I.P.C

To buttress my contention inference is drawn at 226 of the code of criminal procedure 1973
which says:

When the accused appear or is brought before the court in pursuance of a commitment of the
case under S.209, the prosecutor shall open the case by describing the charges brought against
the accused and stating by what evidence he proposes to prove the guilt of the accused.
Before invoking provision of section 227 and 228 dealing with the trials before the Court of
Session, the court has taken note of 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
Admn3. But it is a matter of regret that neither the court nor the prosecution complies with
this section.

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

charges are technical ground on which the accused is entitled to pray for quashing of trial as
well as the conviction. The supreme court reflected 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 charges" in criminal trial, to serve as guidance for all the
lower courts.
But in the present matter before hand, the prosecution has not framed proper charges against
the accused.

Conviction of the accused illegal;

In the present matter, the case under section 376(2) g and 364A was registered against the four
accused person. later on an investigation was carried out, evidence was collected and accused
were arrested. The learned session court and learned high court convicted the accused although
they have been erroneous is not mentioning the section of the code under which the accused have
been convicted. The learned session 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

2 2004 Cri. L.J. 4645 (S.C.)

3
(1996) 9 SSC 766.
13 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

conviction of the accused is illegal.

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 Indian penal code
,1860 (45 of 1860),or other law under which, the accused is convicted and the punishment to
which he is sentenced"

Further clause (2)4 of SS 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"5 in term of S. 353 and S.354 of the code since
proper reason 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 different period of
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 provision of chapter XXVII of code.

Inference is drawn from the case of Vakub Abdul Razak Memon v. State of Maharashtra6 in which
the court said that where the reason 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 application of mind by the court applied its
mind to it. Every portion of the judgment must indicate application of mind by the court to the
evidence on record. The reason for the decision is an important ingredient of a judgment.

4
S.R. Chitnis, Framing of charges in Criminal cases, (2002) 2 SCC (Jour) 24.
5
Hori Ram Singh v. Emperor AIR 1939 PC 43; and Kuppuswami Rao v. The King AIR 1949 PC 1.
6
CRIMINAL APPEAL NO. 1728 of 2007, 2013 (3) SCALE 565.
14 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

Compliance with the law in this regard should not be merely formal but substantial and real, fir 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 relies that a genuine and sincere attempt has been made to mete out even-
handed justice. Reason 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 reason 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 ingredient and forfeits its claim to be termed as
judgment in the eyes of law.

ACCUSED UNKNOWN TO THE COMPLANANT

It is of the prosecution that the offence under S.366 and S.376 (2)(g) IPC were committed and the
case was register against the six 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
close friend of victim in the F.I.R.
First is to enable the witnesses to satisfy 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 suspect is the real person whom the witnesses had seen in
connection with the said occurrence.
In the case of Krishna Kumar Malik v. State of Haryana7 eight accused were charged and prosecuted
for commission of offences under S. 366 and S. 376(2)(g) of the IPC. For abducting victim and
then committing rape on her. Trial court after appreciation of evidence on record found all the six
accused guilty of commission of offence punishable under SS 366 and in addition to it, found
accused for commission of offence under S. 376(2)(g) 0f the I.P.C.

The Supreme Court on the matter said:

The Prosecutrix admitted in her cross examination that she had come to know the name of all the
accused during the course of occurrence, as they were talking each other's names. If that be so,
then why she did not name the Appellant in the FIR is the million dollar question? These omissions
speak volumes against her and her credibility stand 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.

7 AIR 2011 SC 2877: (2011) 7 SCC 130.

15 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

Admittedly, no identification parade was conducted to identify the appellant as description given by
the prosecutrix in about the details did not match with the appearance." a genuine and sincere
attempt has been made to mete out even- handed justice. Reason 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 reason 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 ingredient and
forfeits its claim to be termed as judgment in the eyes of law.

Charges of kidnapping Unreliable;

The complainant was way back to her residence after the New Year party. The three student name
list Suresh, Mahesh and Dinesh s/o D I G police all police all the accused now knocked the scooty
and carried her in the Honda City car City car to a distant and lonely place in the interior of Tonk
Road Jaipur and there he was forcibly made her naked and raped her one after other.
In the Rajoo and ors v. State of M.P8 it was said that according to according to that according to
according to the section 114-A of Evidence Act, presumption can be raised with regard to allegations
of consensual sex in the case of alleged rape. It is however significant that the Section 113-A and
Section 113-B too were inserted in the evidence act by the same amendment by which the certain
presumption in the case of abetment to suicide and dowry death has been raised against the accused.
These two section thus, raise a clear presumption in favor of prosecution but no similar presumption,
with respect to rape, is visualized as the presumptions under section 114-A and the section is
extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are
concerned, the evidence of prosecutrix must be examined as that of an injured witness whose
presence at the spot is probable but it can never be presumed that her statement should, without
exception, be taken as Gospel truth. The additionally her statement can at the best and adjudged on
the principle that ordinarily no injury injured witness would tell a lie or implicate a witness for
falsely. We believe that it is under these principles that this case, and other such as this one, needs
to be examined. The veracity of the story projected by the prosecution qua allegation of rape must,
thus be explained.

MEDICAL INCONSISTENCIES9
S. 53A of code of criminal procedure talks about the 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

8 AIR 2009 SC 858 : (2008) 15 SCC 133.

9
Modi ‘s, Medical Jurisprudence and Toxicology, 22 nd Edition, Butterworth’s, India, New Delhi 1999.
16 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

commit rape and there are reasonable grounds for believing that an examination of this
person will afford evidence as to the commission of such offense, it shall be lawful for a
registered medical practitioner employed in the hospital run by the government or by a
local authority and in the absence of such a petitioner within a radius of 16th km from the
place where the offence has been committed by any other registered medical petitioner
acting at the request of police officer not below rank of Sub- Inspector, and for any person
acting in the good faith in his aid and under his direction to make such an examination of
arrested person and to use such force as in reasonably necessary for the 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 accused for DNA profiling, and
v. Other material particulars in reasonable detail.
3. Report shall state precisely the reasons for each conclusion arrived at
4. The exact time of commencement and completion of 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 SS 173 as part of
the documents referred to in clause (a) of Sub- SS of that SS.

SS 53A of Cr. P.C10 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 the
hospital run by the government or a local authority and in the absences of such petitioner by any
other registered medical practitioner.

The accused should first be identified by the person who brought him, usually UP police
constable full whose number and name should be noted the medical examination report of the
accused incorporates the following11:

10 Inserted by Cr. P.C. (A mdt.) Act, 2005 (25 of 2005), dt. 23-6-2005. W.e.f. 23-6-2006 vide SO 923 (E), dt. 21-6-2006.
11 Supra Note 12
17 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

1. Preliminary data (including identify marks)

2. Examination of the clothes the clothes,
3. Physical and systematic examinations
4. Injuries on his body and genitals
5. Collection and preservation of material 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 the teeth bites on body,
especially on face, hand, 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 the accused from force applied by
the victim. In the addition to the scratches or lacerations on the penis caused by the
fingernails by the victim during the struggle and the aberrations on lacerations may be
discovered on the penis.
The principal features of examination include the signs of struggle on clothes and body and local
examination of genitals. However, there is nothing on record to show such an investigation
carried out and also there have been no signs of any injuries 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.

Krishna Kumar Malik v. State of Haryana12 the Supreme Court said that S. 6 of the Indian Evidence
Act,1872 is an exceptions to the general rules where- under, heresay evidence become admissible.
but for bringing such a way as as evidence within the admit habit of 6, what is, what is required to be
established is that it must be almost contemporaneous with the acts and there could be there could not
be an interval which would allow the fabrication. Now, after the Incorporation of ss53(A) in the
Criminal Procedure Code w.e.f.23.06.2006, it has become necessary for the prosecution to go in for
the DNA test in such type of 2009 cases, facilitating the prosecution to prove its case against the
accused. Prior to the 2006, even without the aforesaid specific provision in the Cr. P. C prosecution
could have still resorted to this procedure of getting the DNA test or analyzing and matching of
semen of the appellant with that found on the undergarments of the Prosecutrix to make it full proof
case, but they did not do so, thus they must face the consequences. In the present matter on such pre-
requisite the test of the accused prescribed under the statute were conducted, which renders the
prosecution story doubtful.

12 AIR 2011 SC 2877:(2011) 7 SCC 130.

18 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

CONTENTION 2:

WHETHER THE THEORY PREENTED BY THE PROCUTION IS RELIABLE OR NOT;

The variation presented by the prosecution is not reliable the several loopholes in the same. The
sitemap presented by the investigating agency is incomplete as it has been seen by the court that
whether the six people commencement of the act alleged to be committed by the accused or not.
Finally, the onus of proof lies on the prosecution and if the case is not proved beyond the
reasonable doubt the conviction of accused cannot be upheld.

Several loopholes in the prosecution theory.

First and foremost, after the FIR lodged by the police, the case under the section 376[2](g) was a
registered against the five accused persons. The New Year night they were charged of rapping a
victim on a distant and lonely place in the interior on Tonk Road, Jaipur.

Independent witnesses to the incident.

The investigation however revealed that The Honda City Car, Mobile and some article had
been used in the commission of the offence. Charges were framed against the accused under the
above sections of the law to which the pleaded ‘not guilty’. Where after the prosecution examine
27 witnesses. The accused person in the course of the statements under section 313 Cr. P.C.
stood by their denial of the charge. Fourteen witnesses were also examined in defence. The trial
court on the assessment of the evidence on record convicted the accused person and their co-
accused under the above- mentioned section of law. All the accused were sentenced to rigorous
imprisonment for life time and were fined out with 10,000 each. All the accused were directed to
compensate the victim with an amount of RS. 50 lakh jointly and severally and the state government
was also directed to pay a sum of Rs. 10 lacks to the victim. All the accused including Vilas Chand,
father of absconder Brijesh, preferred appeals, which were dismissed with the cost in the light of
overwhelming evidence oral and documentary.

In Alamelu & Ant. V. State13 used work charged u/s 376 the convictions of the accused based on the
concurrent finding was set aside as the evidence on the record did not support finding of High
Court and trial court. There was doubtful facts and curcumferences in the case and the conviction

13 (2012) 2 SCC 384: AIR 2011SC 715.

19 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

of the accused was on the sole testimony of the prosecutrix. The questions of the sustainability of
sole testimony of the complainant was raised. It was held that even through the prosecutrix had
several opportunities to protect and raised an alarm, she did not be so. Conviction on sole
testimony of prosecutrix, on facts held, is not sustainable. Therefore, high court according
convections on the basis of her sole testimony set aside.

Further it was observed:

"In our opinion the prosecution version has been distorted from beginning to end in an effort to the
suppress the actual trust. There is no evidence to prove that the victim was forcibly taken in the
car. In our opinion, the trial court as well as the high court had failed to below 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 the car and the forced rape seems to have
been consulted care to falsely implicated or falsely implicated or to falsely implicated or falsely
implicated or the accused under section 366 IPC even in the face of the wholly unreliable evidence,
as noted above both the court have convicted all the accused under section 366 and 376 IPC the high
court in our opinion committed upgrade error in confirming the conviction of the
accused/appellants under section 366 IPC. In view of the forehead, we are of the considered
opinion that the prosecution has failed to prove beyond reasonable doubt any of the offence with
which the appellants had been charged. It appears that the entire prosecution story has been
concocted for the reasons best known to the prosecution. In our opinion the conclusion recorded
by both the courts below are wholly preserve. The Appellant l are clearly entitled to the benefit of
doubt. In view of the above, the appeals are allowed. All the appellants and are acquitted. They
are directed to be released forthwith.”

In Abbas Ahmed Choudhary V. State of Assam14, the court observed;

“We are conscious of the facts that in a matter of rape, the statement of prosecutix 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 presumptions
that the prosecutrix would always tell the entire story truthful.”

In Narender Kumar v. State (NCT of Delhi)15 the Prosecutrix filed an FIR to effect that FIR to
effect that that when she was going from the 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

14 (2010) 12 SCC 115: 2010 Cri. L.J. 2062

15 (2012) 7 SCC 171: AIR 2012 SC 2281
20 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

road and committed rape on her. She could not raise the noise due to fear. After commission of the
offence, the upland left her there and ran away. The prosecutrix went to her husband at his
working place and from there went to police station police station along with her husband to
lodge the FIR. The prosecutor was medically examined. On conclusion of trial, the learn the
learnt sessions Court vide judgement convicted the appellant for the offence under section 376
IPC and imposed the sentence of rigorous imprisonment for period of 7 year and imposed a fine
of Rs.10000/- Aggrieved, the applicable preferred criminal appeal before The High Court which
was dismissed vide impugned judgement.

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 find it difficult to accept the version of the
prosecutrix on its face value. It may search for the evidence, direct or substantial, which may lend
names assurance to her testimony her testimony16”.

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 their being no injury on her person even
though her version may be otherwise, no Reliance can placed upon her evidence.

In Jai Krishna Mandal and Anr v. State of Jharkhand17, this court while dealing with the issue held
that, the evidence of rape was statement of 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 Pradesh18, this court held at the ordinarily the evidence of an
prosecutrix should not be suspected and should be believed, more so as her statement has to be
evaluated on par 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 cause the greatest distress and humiliation to the victim but at the
same time of false allegation of rape can cause the equal distress, humiliation and damage to the
accused as well. The accused must also protected against the possibility of false implications and
humiliation. There is no presumptions or any basis for assuming that the statement of such a

16 Vimal Suresh Kamble V. Chaluverapinake Apal S.P & Anr., AIR 2003 SC 818; AND Vishnu v. State of Maharashtra AIR
2006 SC 508;
17 (2010) 14 SCC 534.
18 AIR 2009 SC 858.

21 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

witness is always correct or without any embellishment or exaggeration."

In Tameezuddin @ Tammu v. State (NCT of delhi)19, 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."

Onus of Proof on Prosecution

However, even in the 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 duty of
the defence to explain as to how and why in a rape case victim and the other witness have falsely
implicated the accused. Prosecution case has to stand on its own legs and cannot take support
from the witness of the case of Defence. However Great the suspicious against the accused And
however the strong moral beliefs beliefs and convictions 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 doubt20.

Prosecution has to prove its case beyond reasonable doubt and cannot take support from the
weakness of the case of defense. 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 the court must must act with sensitivity and
appreciate the evidence in totality of the background of the entire case and not in isolation. Even
in the Prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor
and the court is required to adjudicate weather the accused committed rape on the victim on
occasion on occasion complained of.

19 (2009) 15 SCC 566.

20
Tukaram & Anr. V. The State of Maharashtra AIR 1979 SC 185; and Uday V. State of Karnataka, AIR 2003 SC 1639.
22 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

In Rama Nand v. State of Himachal Pradesh21, it was held at 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 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.

It has been consistently laid down by Hon'ble Apex Court that where a case rests squarely on
circumstential evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused or the
guilt of any person.31
The circumstances from which an interfernce 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
soughtto be inferred from those circumstances .In Bhagat Ram v. State of Punjab , it was laid down
that where the case depends upon the conclusion drawn from circumstances, the cumiliative 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 Shrivastava ,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
interferences ;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 cumiliative
effect of all the facts so established must be consistent only withthe hypothesis of guilt.
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharastra
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 curved by a false defence or plea. The condition Precedent in the words of Hon’ble Court, before
conviction could be based on circumstantial evidence, must be fully established.

21 AIR 1981 SC 738: 1981 Cri LJ 298.

23 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

Further, in State of M.P v. Sunil22, three judge Supreme Court bench, the accused was convicted
for rape and abduction and was sentenced to 8 years of RI with Fine. The sentence was reduced
by the learned High court to the period already undergone by the accused which was 6 years and 2
months. Learned council for the Appellant submitted that the sentence imposed by the Hon'ble High
Court is wholly inadequate looking at the nature of offence and is contrary to minimum described
by Law. The apex court held that the sentence which the accused has already undergone that is 6
years and 2 months cannot be said to be inadequate or contrary to law. Thus appeal stands
dismissed.

IN State of Punjab V. Jagir Singh & Ors.23 Where in it was held:

"A criminal trial is not a fairy tale, wherein one is free to give fight to one's imagination and
fantasy. It concerns itself with the question as to whether the accused arranged at the trail is guilty
of the crime with which he is charged. Crime is an event in real life and is the product of
interplay of different human emotions. In arriving at the conclusion about the guilt of the
accused charged with the commission of the crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final
analysis would have to depend upon its own facts. Although the benefit of every reasonable
doubt should be given to the accused, the courts should not at the same time reject evidence which is
exfacie trustworthy on grounds which are fanciful or in the nature of conjecture".

22 AIR 2006 SC 627

23 1973 AIR 2407: 1974 SC (1) 328: 1974 SCC (3) 277.
24 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

CONTENTION 3
Whether the petitioner is liable under Section 376, 364A, 465, 471, 120B r/w

Whether the petitioner is liable under section 376, 364A, 465, 468, 471, 120B r/w section 34 of the
Indian penal code?

State of Haryana v. Prem Chand is a review petition filed by the state of Haryana
against the judgment of Supreme Court in Prem Chand versus state of state of versus state
of state of Chand versus state of state of Haryana Premchand versus state of Haryana
1989 of Haryana 1989 state of Haryana 1989 of Haryana 1989 the supreme court had had
held that keeping in the view of PQ le facts and circumstances of the case coupled with the
condition of a girl not calling of minimum sentence of 10 year as 111 ri as Scribe by
section 376 to the minimum sum minimum sentence provided by the pro VC what
made the end of the justice

Babu Lodhi v. State of U.P.24 the supreme court has emphasised that proof of
participation by acceptable evidence may in circumstances be a clue to the common
intention and that it would not be fatal to the prosecution case that the culprits had no
community of interests.

It is offence created by s.109 and s.120A are quite distinct and where offence are
committed by several person in persuance of a conspiracy to commit those offences.
This section applies to those who are the members of the conspiracy during the
continuance. Conspiracy has to be treated as a continuing offence and whoever is a
party to the conspiracy during the period for which he is charged is liable under this
section50. The conspirators connection with the conspiracy would get snapped after he
is nabbed by the police and kept in custody. He would then cease to be the agent of
others. In this case (Rajiv assassination) the prosecution could not establish that the
accused persons who were under detention continued their conspirationial contact
with those who remained outside. A statement which constitutes prima facie evidence of
a conspiracy may amount to an act for which all the members can be held liable 51.
Where the accused conspired with others in awarding a contract when he was in job he
could be held liable for subsequent act of other conspirators even after his retirement as he
contributed his part for furtherance of the conspiracy52.

24 (1987) 2 SCC 352

25 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

In Malleshi V. State of Karnataka25 the demand of ransom has been clearly established
and the role played by the accused has been analysed by the court below the victim
was recovered on disclosure made by the accused was held liable to be convicted u/s
364A. I.P.C.

376 IPC

In an appeal26 against conviction for gang rape, or was contented that the conviction
should be set aside be-cause the medical report did not indicate the number of persons
who had raped the prosecutrix.

“We do not think that on medical examination it is possible to say about the number
of persons committing rape on a girl and accordingly in her report the [lady doctor] has
not ex- pressed any opinion in that regard in that regard. The evidence of the prosecutrix
that all the appellants had committed rape on her is not inconsistent with the medical
report. In the circumstances there is justification for the finding of the High Court that
the medical examination and the evidence show the involvement of more than one
person in the act of rape”27.

“The Explanation has been introduced by the legislature with a view to effectively deal
with the growing menace of gang rape. In such circumstances it is not necessary that
the prosecution should adduce clinching proof of a completed act of rape by each one
of the accused on the victim or on each one of the victim or on each one of the victim
where there are more than one in order to find the accused guilty of gang rape and convict
them under S. 376, IPC”28.

25
(2004) Cri. L.J. 4645 (SC).
26
Balwant singh V. State of Punjab, (1987) 2 SSC 27: AIR 1987 SC 1080: 1987 Cr LJ 971. Two persons are
enough to constitute a gang. Utam V. State of Maharashtra, 1991 Cr LJ 1644 Bom.
27
Arun Kumar V. State of U.P.,AIR 1989 SC 1445 : 1989 Cr LJ 1460 : (1989) Supp (2) SCC 322.
28
Promod Mehto V. State of Bihar, AIR 1989 SC 1475

26 | P a g e
 8TH FYLC RANKA NATIONAL MOOT COURT COMPITION, 2018

PRAYER

THEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED. THE HON’BLE SUPREME COURT
MAY BE PLEASED TO:

I. DECLARE that the High Court was justified in reducing the sentence of
the accused.

II. HOLD that the accused have a right to be acquitted as the prosecution story
is suffering from various infirmities.

III. Declare that the charges framed on the petitioner was false charge by
the lower court in the present matter??

And pass any other relief that Hon’ble Supreme Court may be pleased to grant and for this
act of kindness the councils for the respondent shall forever humbly pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTID.

COUNSELS FOR THE RESPONDENT

27 | P a g e