Adhivakta - Moot

Assuming but not accepting, if she is agreeing that she was not able to make noise.
No Noise – No FIR
Medical Report MLC - There is no physical assault, Hymen Is not necessarily torn by sexual assault, there was
nothing disclosed
Inconsistency of Statements – Section 164 CRPC –

1) The report submitted by police does not contain affective fact devoid of material facts
2) The material facts cannot be determined
3) The accusation upon the accused is vague
4) The prosecution has not presented any witness.
If, upon due consideration of the police reports and all the documents sent under Section 173 along with
examinations of the accused, if any, as Magistrate thinks obligatory and after hearing prosecution as well as
accused, the Magistrate considers the charge to be groundless against the accused, he shall discharge the
accused and also record his reasons for doing so.
The significant value of the materials on record cannot be looked into at the stage of framing of a charge by the
Magistrate and the materials brought on record by the prosecution against the accused have to be trusted as true
at that stage. The emerging judicial view is that the Court cannot initiate an in-depth inquiry into the evidence at
this stage.
At the stage observed under Section 227, the Judge has to merely examine the evidence in
order to determine whether or not the grounds are sufficient for proceeding against the
accused. The nature of the evidence recorded by the police or the documents produced in
which prima facie reveals that there is a suspicious situation against the accused so as to
frame a charge against him before the court would be taken into account in order to find out
the sufficiency of ground.
In the case of Vijayan Vs. State of Kerala and another (2010 SCC 398 SC.
1979 3 SCC P.4=AIR 1979 SC P.366) in the case of Union of India Vs. Prafulla
Kumar Samal and another. Where in the Hon’ble Supreme Court formulated the following
7 guiding principles.
1) The judge while considering the question of framing the charges U/Sec.
227 Cr.P.C has the undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie case against the
accused has been made out. To determine prima facie case would depend upon the facts of each case.
2. Where the materials placed before the court disclose grave suspicion
against the accused which has not been properly explained, the court will be
fully justified in framing a charge and proceeding with the trial.
3. The court can not act merely as a post office or a mouth piece of the
prosecution but it has to consider the broad probabilities of the case. There
cannot be a roving enquiry into the pros and cons of the matter and weigh the
evidence as if a trial was being conducted.
4. On the basis of material on record if the court could form an opinion that
the accused might have committed the offence, it can frame the charge.
5. At the time of framing of the charges, the probative value of the material
on record can not be gone into but before framing of charge the Court must
apply its judicial mind on the material placed on record and must be satisfied
that the commission by the accused was possible.
6. At the stage of Sec.227 and 228 Cr.P.C, the court is required to evaluate
the material and documents on record with a view to find out the existence of
all the ingredients constituting the alleged ofence but the court cannot be
expected to presume that the prosecution story is gospel truth. Pg.5
7. If two views are possible and one of them gives rise to suspicion only, as distinguished from

grave suspicion, the trial judge will be empowered to
discharge the accused irrespective of the result of the trial.
2010 (9) SCC 368 (Sajjan Kumar V. CBI) – Land mark Judgment.
At the stage of framing of Charge U/Sec. 228 Cr.P.C or while considering
the discharge petition filed U/Sec. 227 Cr.P.C, it is not for the Judge concerned
to analyse all the materials including pros and cons, reliability or acceptability
etc; The evidentiary value and its credibility and veracity has to be considered at the stage of trial.
Whether the material which is produced by the accused can be looked into by the session’s court? In the case of

Satish Mehra v. Delhi Administration and Another reported in(1996) 9 SCC 766,the Hon’ble Supreme
Court held that if the accused
produces any convincing material at the stage framing of charge which might
drastically effect the very sustainability of the case, it is unfair to suggest that
no such material should be considered into by the court at that stage.
State Vs. Omprakash: Delhi H.C. Hon’ble Justice Suresh Kumar Kait. Decided on 06.11.2019.
Discharge of the accused U/Sec. 12 of POCSO Act, where victim did not
mention any act of sexual assault or intent in her 164 Cr.P.C statement. FIR
was registered basing on the statement made by the mother of the victim. Discharge proper
How to decide a prima-facie case
It is only through the facts of each case through which the judge can determine if it is a
prima-facie case and in this regard, it is neither possible nor desirable to formulate rules of
universal application. However, if both of the views are possible and the Judge is convinced
that the evidence presented before him gives rise to suspicion but not grave suspicion, he
can discharge the accused. At this stage, he does not need to bother whether the trial will
lead in conviction or not.
The test to be applied is whether the materials on record, if unrebutted, is sufficient to make
conviction possible. The ground word used in the context is a ground for putting the accused
on trial and not a ground for conviction
When accused shall be discharged on warrant case instituted on police report before the magistrate?
MLC
In our instant case the MLC No 153 fated 02-02-22 does not disclose any bleeding from her private parts and
instead states that the UPT is negative and there are no bite marks on the body. It is a far well recognized
position that the condition of hymen being torn of the prosecutrix does not necessary mean she was subjected to
forceful sexual intercourse. An intact hymen does not rule out sexual assault and a torn hymen does not prove
sexual assault. As it was stated in the case of State vs. Lalit Ratawal Hymen should be treated like any other
part while documenting examination findings in a case of sexual assault. Fresh tear, bleeding, oedema is
relevant and should be documented in a case of sexual assault. Hymen can be torn due to many activities like
cycling, horse-riding etc. The MLC also states that her P/A is also soft, tender and normal indicating that there
is no internal pain or bleeding that took place. From the above discussion and MLC report given it can be safely
ruled culled out that the theory propounded by the complaint is incredible and does not inspire any confidence.
The foundation of the entire case is too weak to build any edifice thereon.
BALLISTIC REPORT
It is humbly submitted to the hon’ble court that the seizure reports clearly states that A black Colour .315
KATTA containing 5 Bullets is seized. The Exhibits on page 37 shows quite clearly that the KATTA can only
contain 1 Bullets at a time and can also fire one bullet at a time before it can be reloaded. Which just indicates
towards malicious allegations on the accused and planting of the KATTA and the bullets itself and also the
independent witness Hemant Kumar and kundan Kumar were not even given sufficient time to even have a
look at what the raiding team is carrying amongst them. Moreover, assuming but not accepting that the Rakesh
Kumar i.e., accused No. 1 fired a shot at the incident and then while running the pistol fell down was picked up
by Ajay Kumar i.e., accused No. 4 whereas the finger prints of only accused no. 4 was taken and matched with
the finger present on the katta that apparently, they have seized from the spot where the incident took place.
Which also indicates towards the deliberate and false allegations towards the accused under the arms act, 1959.
The police didn’t even get the Katta verified by the prosecutrix or any of the witnesses present there whether
this was the katta that was used at the time of the incident to fire which just shows the defaults in the
investigation which indicates towards hiding of substantial facts of the cases and making false allegations on
the accused.
Hence the ballistic report is not conclusive and does not prove beyond reasonable doubt that the accused are
liable under the arms act,1959.
Statement of the Prosecutrix:

One of the fundamental challenges to the credibility of sexual assault victims is that many – if not most – make
statements to the law enforcement investigator or others that are incomplete, inconsistent, or just plain untrue. It is
humbly submitted to the hon’ble court that Statements made by the prosecutrix in our instant case is
inconsistent and incomplete in nature.

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Assuming but not accepting, if she is agreeing that she was not able to make noise.

Inconsistency of Statements – Section 164 CRPC –

7. If two views are possible and one of them gives rise to suspicion only, as distinguished from

Whether the material which is produced by the accused can be looked into by the session’s court? In the case of

How to decide a prima-facie case

Statement of the Prosecutrix:

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