TRINITY INSTITUTE OF INNOVATION IN PROFESSIONAL STUDIES

INTRA MOOT COURT COMPETITION, 2022

BEFORE THE HON’BLE HIGH COURT OF

…………………………….

APPEAL NO. OF 2022

UNDER SECTION 372 OF THE CODE OF CRIMINAL
PROCEDURE, 1973

IN THE MATTER OF :

VICTIM (X) ..................................................................................................... (PETITIONER)

V.

RAJU… ............................................................................................................ (RESPONDENT)

(MEMORIAL ON BEHALF OF THE PETITIONER)

 TABLE OF CONTENTS

SNO. TOPICS PAGE NO.

1 LIST OF ABBREVIATIONS 3

2 INDEX OF AUTHORITIES 4

3 STATEMENT OF JURISDICTION 5

4 STATEMENT OF FACTS 6

5 ISSUE RAISED 9

6 SUMMARY OF ARGUMENTS 10

7 ARGUMENTS ADVANCED 11

8 PRAYER 17
 LIST OF ABBREVIATIONS

& AND

AIR ALL INDIA REPORTER

Anr ANOTHER

Ed EDITION

Govt. GOVERNMENT

Hon’ble HONORABLE

HC HIGH COURT

IAS INDIAN ADMINISTRATIVE SERVICE

Ltd LIMITED

NGO NON-GOVT. ORGANISATION

Ors OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASES

SEC SECTION

UID UNIQUE IDENTIFICATION

UOI UNION OF INDIA

V. VERSUS

VOL. VOLUME

SEC. SECTION
 INDEX OF AUTHORITIES

CASES REFERRED CITATION

Mahafuja Banu vs. Md. Asadul Islam and State (03.09.2012 - CALHC) MANU/WB/0711/2012
Mast Ram Tiwari vs. State of U.P. and Ors. (19.01.2018 - ALLHC) MANU/UP/0351/2018
Prem Rai vs. State of Sikkim (07.06.2019 - SIHC) MANU/SI/0031/2019
Damodar Das vs. State of Orissa (19.04.2018 - ORIHC) MANU/OR/0232/2018
Mallikarjun Kodagali vs. State of Karnataka (2018) AIR 2018 SC 5206
National commission for women vs. State of Delhi and Anr. MANU/SC/0831/2010
Bagender Manjhi vs. State (Govt. of NCT) Delhi MANU/DE/4065/2022
Lillu vs. State of Haryana (2013) 14 SCC 643
Deepak Gulati vs. State of Haryana MANU/SC/0546/2013
Kaini Rajan vs. State of Kerela (2013) MANU/SC/0966/2013
Dhari Kumar Jamatia and Ors. Vs. State of Tripura MANU/TR/0201/2020

BOOKS REFERRED
 K.D Gaur ( Indian Penal Code )
 J.N Pandey ( Constitutional Law )

STATUTES REFERRED
 Indian Penal Code ,1860 (IPC)
 The Protection of Children From Sexual Offences Act ,2012
 Evidence Act ,1872
 Criminal Procedure Code, 1973 (CrPC)

WEBSITES REFERRED
 https://indiankanoon.org/
 https://www.livelaw.in/
 https://blog.ipleaders.in/category/case-law/
 https://www.casemine.com/
 https://www.scconline.com/
 STATEMENT OF JURISDICTION

The petitioner has approached the Honourable High Court and filed this appeal petition under S. 372 of The
Code of Criminal Procedure, 1973 of India for granting the appeal.
 SYNOPSIS OF FACTS

Accused Raju was tried on a charge sheet submitted by the police station-, District- Patalganga, under Section-
376 IPC & 3/4 POCSO Act.

1. The short prosecution story is that the accused raped the victim/complainant (aged about 16 years old) in
room no. 202 of Westin Hotel in front of gate no. 3 of the railway station gave the delusion of marriage and
made an obscene video of the victim. The accused threatened the victim for making viral that obscene video
and made sexual relations with the victim repeatedly.

2. The accused and victim were known to one another and often made conversation on their mobile. The
accused belongs to a prosperous family in comparison to the victim. After becoming pregnant, the accused
gave information about it to the accused, but the accused abused the victim’s parents and ignored the matter.
The victim reached along with her parents to the village of the accused, where they got seriously thrashed by
parents and relatives of the accused and threatened the victim’s parents with dire consequences.

3. The victim stated in her statement under Section 164 of Cr.P.C. that she is known to the accused and in
contact with him. The accused had a sexual relationship with the victim. They made her pregnant, but when
the victim demanded solemnizing a marriage, the accused denied doing it by giving an excuse for the parents’
disagreement. The victim stated in her statement under Section 161 of Cr.P.C. that the accused took her in
trust to solemnize a marriage and did a malicious act/rape her after her denial.

4. The accused took the victim to the hotel in room no. 202 and raped her and made an obscene video. The
accused scared a victim of making an obscene video viral if she refused to have a sexual relationship with
him. The accused made the victim pregnant, and when she gave information about the misdeed/rape, then
the parents and relatives of the accused abused the victim and threatened dire consequences.

5. Based on the complaint of the complainant dated 2.6.2022 regarding the rape of the complainant’s
daughter/victim, an FIR, under Section- 376, 323, 504, 506 IPC & 3/4 POCSO Act was registered in Police
Station- Dera Saccha Sauda, District Patalganga was lodged against accused Raju. After investigation, the
charge sheet under Section- 376 IPC & 3/4 POCSO Act, Police Station- Dera Saccha Sauda, District-
Patalganga, was filed before the Court against the accused, Raju.

6. Charge, under Section- 376 IPC & 5(j)(ii), 5(l)/6 POCSO Act, Police Station Dera Saccha Sauda, District-
Patalganga, was framed by the Court against the accused Raju in which he denied the allegation/charge and
claimed trial on 12.09.2022.

7. The prosecution has miserably failed to prove charges against the accused, Raju, beyond a reasonable doubt.
So, the accused is liable to be acquitted of the charges mentioned above in this case/special Trial. Accused
Raju is hereby acquitted in Special Trial under Section- 376 IPC & 5(j) (ii), 5(l)/6 POCSO Act, Police Station-
Dera Saccha Sauda, District- Patalganga. The accused is detained in prison. He is directed to be released. The
accused will furnish a personal bond and two reliable sureties of Rs. 25,000/- each as per Section 437-A
Cr.P.C to the satisfaction of the Court concerned. Against the trial court’s order, the present appeal is
submitted before the Honourable High Court and is kept for a final hearing
 ISSUES RAISED

ISSUE 1 : Whether the appeal filed by the the petitioner is maintainable or not ?

ISSUE 2 : Whether the accused is guilty of the offence of rape and other offences or not ?

ISSUE 3 : Whether the accused is guilty of offences under section 323 , 504 and 506 of ipc ?

ISSUE 4 : Whether the consent of the prosecutrix was a voluntary consent or it was a consent-
based on the misconception of facts ?
 SUMMARY OF ARGUMENTS

ISSUE 1 : Whether the appeal filed by the the petitioner is maintainable or not ?

It is most humbly submitted in this Hon’ble High Court that the appeal filed by the petitioner
is maintainable in the instant case as it fulfils the criteria to be heard by this hon’ble court under
section 372 of The Code of Criminal Procedure, 1973.

The right to appeal is one of the basic human rights available to the people living in a civilized
society. It flows from the principles of natural justice and substantive rights which construe a
right to the substance of being human in contrast with a procedural right.

ISSUE 2: Whether the accused is guilty of the offence of rape and other offences or not ?

It is most humbly submitted in this Hon’ble High Court that the accused here is guilty of the
offence of rape under section 376 of IPC and for Penetrative Sexual Assault under section
3 / 4 / 5(j)(ii) / 6 of POCSO Act .

As per the facts of the case where the accused promises to marry the 16 years old girl(victim)
who is a minor and accused had a sexual relationship with the victim. The accused takes the
victim to a hotel room no. 202 of Westin Hotel in front of gate no. 3 of the railway station,
where he raped her and made an obscene video of the victim and later threatened her to not to
disclose this news and threatened the victim on the basis of that obscene video to have regular
sexual relationship with her and made her pregnant at a very early age. When the victim told
about the pregnancy she was threatened and thrashed by both the accused and his family
members and relatives.

ISSUE 3 : Whether the accused is guilty of offences under section 323 , 504 and 506 of
IPC ?

It is most humbly submitted in this Hon’ble High court that the accused is guilty of the offences
under section 323 , section 504 and section 506 of IPC. The accused has voluntarily caused
hurt and have also intentionally insulted with the intent to provoke the breach of the peace and
also have criminally intimidated.

This fold of the advanced arguments focuses on the offences committed by the accused other
than Rape under section 375 of IPC.
ISSUE 4 : Whether the consent of the prosecutrix was a voluntary consent or it was a
consent-based on the misconception of facts ?

It is most humbly submitted in this Hon’ble High Court that the accused is guilty for making a
false promise of marriage having the mala fide intention just to satisfy his lust with the victim.

The accused has made sexual relationship with the victim on the sole basis of the promise of
solemnising the marriage with her , but the accused has no intention to fulfil this promise as
the intention of the accused was with mala-fide intention.
 ADVANCE ARGUMENTS

ISSUE 1

WHETHER THE APPEAL FILED BY THE THE PETITIONER IS MAINTAINABLE

OR NOT ?

It is most humbly submitted in this Hon’ble High Court that the appeal filed by the petitioner
is maintainable in the instant case as it fulfils the criteria to be heard by this hon’ble court under
section 372 of The Code of Criminal Procedure, 1973.

The right to appeal is one of the basic human rights available to the people living in a civilized
society. It flows from the principles of natural justice and substantive rights which construe a
right to the substance of being human in contrast with a procedural right.

Section 372

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by
this Code by any other law for the time being in force.

Provided that the victim shall have a right to prefer an appeal against any order passed
by the Court acquitting the accused or convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of such Court.

Relevancy with the instant case

The instant case also fulfils the requirement of section 3372 of The Code of Criminal
Procedure, 1973 where there have been gross injustice caused to the petitioner by the means
and modes of the accused (Raju) in this case.

In the present case where the accused (Raju) who was charged with section 376, 323, 504, 506
IPC & 3/4 POCSO Act have been acquitted in the special trial even after charged with such
heinous offences done against a minor.

And offences are not only done by the accused but also by his family members and relatives
who have threatened the victim in respect to the issues alleged in the present case.

The legislature recognized the flaw in the criminal justice system that allowed influential, rich,
and powerful people to threaten or induce witnesses to turn hostile. The victim has a direct
nexus with the damage caused to him whereas the society suffers from a remote effect. The
need for certain rights and compensation for the victims would ensure the efficacy of the
criminal justice system. They also acknowledged the dearth of options available to the victims
who are the worst sufferers in a crime. The right to a fair trial is inherent to the fundamental
right to live with dignity and honour under Article 21 of the Indian Constitution.

the Code of Criminal Procedure (Amendment) Act, 2008 cures the victim’s limited right to
appeal by allowing an appeal against an acquittal as well conviction for a lesser offence.

The law also allows the victim to appeal against an order on the grounds of inadequate
compensation. This legislative action was taken after the infamous Best Bakery case, in which
the Supreme Court criticised the public prosecutor for trying to help the accused. The law
recognizes that the State might have an ulterior motive in a trial and may be reluctant to
prosecute the accused due to political rivalry, corruption of people in power, etc. Therefore, it
allows the involvement of third parties such as the victims to appoint their legal counsel who
would represent their interests in a trial. This leads to the proper functioning of the legal regime
and ensures that a person is not exploited and denied justice.

However, to meet the ends of justice this matter should be heard by the Hon’ble High Court.

Related case laws

In another case of Mallikarjun Kodagali vs The State of Karnataka (2018), the Supreme
Court had stressed the importance of interpreting the rights given to the victim under Section
372 of the Code of Criminal Procedure in a liberal, realistic, progressive manner. The Court
also relied on the UN Declaration of 1985 to establish that the victims along with the state have
the right to appeal against the acquittal of the accused. This included the right to appeal against
the conviction for a lesser offence like reducing the charge of murder to culpable homicide.
However, the right to seek an enhancement of the sentence given after conviction of the accused
rests with the State only.

The Supreme Court, in the landmark case of National Commission of Women v. State of
Delhi & Anr., interpreted that the proviso in concern as under section 372 of CrPC, gives
a limited right to the victim to file an appeal in the High Court against any order of a
criminal court acquitting the accused or convicting him for a lesser offence or the
imposition of inadequate compensation.
( ISSUE 2 )

WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE OF RAPE OR NOT ?

It is most humbly submitted in this Hon’ble High Court that the accused here is guilty of the
offence of rape under section 376 of IPC and for Penetrative Sexual Assault under section
3 / 4 / 5(j)(ii) / 6 of POCSO Act .

As per the facts of the case where the accused promises to marry the 16 years old girl(victim)
who is a minor and accused had a sexual relationship with the victim. The accused takes the
victim to a hotel room no. 202 of Westin Hotel in front of gate no. 3 of the railway station,
where he raped her and made an obscene video of the victim and later threatened her to not to
disclose this news and threatened the victim on the basis of that obscene video to have regular
sexual relationship with her and made her pregnant at a very early age. When the victim told
about the pregnancy she was threatened and thrashed by both the accused and his family
members and relatives.

Provided sections for the offences committed

In the instant case the accused have committed a series of offences which shall be dealt
accordingly into certain folds.

Section 375 (Rape)

A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any other
person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him
or any other person, under the circumstances falling under any of the following seven
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 1.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.

Section 3 and Section 4 of POCSO ACT

 Penetrative sexual assault.—A person is said to commit "penetrative sexual assault" if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or
makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or makes the child to do so with him or any other
person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to
do so to such person or any other person.

 Punishment for penetrative sexual assault.—Whoever commits penetrative sexual

assault shall be punished with imprisonment of either description for a term which shall
not be less than seven years but which may extend to imprisonment for life, and shall
also be liable to fine.

SECTION 5(j)(ii) & Section 6 of POCSO Act

Aggravated penetrative sexual assault.—(j) whoever commits penetrative sexual assault on a

child, which—

(i) physically incapacitates the child or causes the child to become mentally ill as
defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987)
or causes impairment of any kind so as to render the child unable to perform
regular tasks, temporarily or permanently; or
(ii) In the case of female child, makes the child pregnant as a consequence of sexual
assault;
(iii) Inflicts the child with Human Immunodeficiency Virus or any other life
threatening disease or Infection which may either temporarily or permanently
impair the child by rendering him physically incapacitated, or mentally ill to
perform regular tasks;

Punishment for aggravated penetrative sexual assault.—Whoever, commits aggravated

penetrative sexual assault, shall be punished with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to imprisonment for life and shall also
be liable to fine.
However , in the present case the accused has done the same offence. While normal rape,
comprises of the element of lack of consent, or consent obtained through fraud or force,
statutory rape varies in the sense that the consent so obtained, is not considered to be valid.
This offence has been created to protect the exploitation of minors by such adults who would
manipulate their way into having sexual intercourse with an otherwise unwilling party. Under
this sort of offence of rape, the adult gets punished in case he had any kind of physical
interaction with any woman or a girl, of the age of 18 or below, regardless of whether she had
voluntarily participated in the act or not. Such consent, if obtained by the minor is
inconsequential and shall not be considered as a defence to the accused. The minimum age of
consent in India is 18 years old and the age of consent implies the age at which an individual
is considered legally old enough to consent to participate in any sexual activity. The individual
who is still of 17 years of age or younger, shall not be considered as legally old enough to give
their viable consent to participate in any kind of sexual activity. Hence, if a male and a female,
both of the age 17 enter into voluntary intercourse, the male can still be arrested and charged
with rape.

Delhi High Court in the case of Bagender Manjhi v. State (Govt. of NCT) Delhi In an appeal
challenging the judgment passed by the Session Judge, convicting the appellant for offences
punishable under the provision of Section 376(2)(f) of the Penal Code, 1860 IPC and Section
6 read with Section 5 or Section 3 of Protection of Children from Sexual Offences Act,
2012 (‘POCSO’), the division bench of J. Siddharth Mridul and J. Anup Jairam Bhambhani
upheld the judgment and order on conviction by the Trial Court, and held the appellant guilty
of the offences of rape and penetrative sexual assault upon the one-year old child.

The Court observed that the offences against minors, more particularly sexual assault are
increasing alarmingly, and it is, therefore, necessary for the courts to imbibe the legislative
wisdom, as the torment on the victim has the potential to corrode the poise and equanimity of
any civilized society. Further it referred to the decision in Lillu v. State of Haryana, (2013) 14
SCC 643, wherein it was held that “rape degrades and humiliates the victim and where the
victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A
rapist not only causes physical injuries but leaves behind a scar on the most cherished
position of a woman i.e., her dignity, honour, reputation, and chastity”, and observed that
it is the duty of the Courts to consider such specialized legislation in the circumstances to which
they owe their origin to ensure coherence, and to avoid any unintended and undesirable
consequences.

In the case of Prem rai vs. State of Sikkim (2019) the Hon’ble High court of Sikkim placed
the emphasis on the quantum of punishment given in the provisions of section 376 of IPC and
section 4 of POCSO Act, which provides for imprisonment leaving the discretion to the Court
to either impose rigorous or simple imprisonment. This is clear on reading Section 2(2) of the
POCSO Act and Section 53 of the IPC. Section 42 mandates that the offender found guilty of
such offence punishable under the POCSO Act and also under Section 376 IPC shall be liable
to punishment under either of the acts "as provides for punishment which is greater in
degree".
( ISSUE 3 )

WHETHER THE ACCUSED IS GUILTY OF OFFENCES UNDER SECTION 323 , 504

AND 506 OF IPC ?

It is most humbly submitted in this Hon’ble High court that the accused is guilty of the offences
under section 323 , section 504 and section 506 of IPC. The accused has voluntarily caused
hurt and have also intentionally insulted with the intent to provoke the breach of the peace and
also have criminally intimidated.

This fold of the advanced arguments focuses on the offences committed by the accused other
than Rape under section 375 of IPC.

Section 321 and Section 323 of IPC

 Voluntarily causing hurt.—Whoever does any act with the intention of thereby
causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt
to any person, and does thereby cause hurt to any person, is said “voluntarily to cause
hurt”.
 Punishment for voluntarily causing hurt.—Whoever, except in the case provided for
by section 334, voluntarily causes hurt, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine which may extend to
one thousand rupees, or with both.

The High Court of Tripura at Agartala in the case of Dhari Kumar Jamatia and ors. Vs. State
of Tripura , the accused filed an appeal to the high court seeking the relief for the conviction
passed by the trial court under section 376D of IPC , section 6 of POCSO Act and also under
Section 323 of IPC for voluntarily causing hurt to the victim who was a minor. The Court held
that the trial court have rightly convicted and sentenced all the accused.

In the present case as well and as the facts per se the when the accused made sexual relationship
with the victim who is a minor , and made the victim pregnant. But when the victim informed
him about the pregnancy , the victim have been thrashed and threatened by the accused and his
family members and relatives.

The facts per se in the instant case arise the same issues as have been decided in the numerous
judgements of many Hon’ble High Courts and Hon’ble Supreme Court.
SECTION 504 OF IPC

Whoever intentionally insults, and thereby gives provocation to any person, intending or
knowing it to be likely that such provocation will cause him to break the public peace, or to
commit any other offence, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

SECTION 506 OF IPC

Whoever commits the offence of criminal intimidation shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.and if the threat be to cause death or grievous
hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with
death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven
years, or to impute unchastity to a woman, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both.
In order for an offense to be considered under Section 504 and 506 of IPC, these conditions
must be satisfied in their entirety .

(i) That the accused threatened some person.

(ii) That such threat consisted of some injury to his person, reputation or property; or to the
person, reputation or property of some one in whom he was interested;

(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any
act which he was not legally bound to do, or omit to do any act which he was legally entitled
to do as a means of avoiding the execution of such threat.

In the case of Damodar das Vs. State of Orissa 2018 , the High Court of Orissa at Cuttack held
that that the prosecution had successfully established the case against the appellant and there
was no improbability feature which would create doubt in prosecution version. Also There was
no reason for minor girl to implicate Appellant falsely in crime and there was also no reason
for her family members to level false accusation against Appellant which would ultimately risk
future of victim. It was abundantly clear that evidence brought on record contains positive
proof, credible sequence of events and factual truth linking Appellant with kidnapping of
victim on fateful night in his motor cycle, commission of rape on her in isolated place and
criminal intimidation to her. The court held that the accused here is guilty for the offence of
rape and criminal intimidation. Thus convicted the accused under the respective sections.

In the present case also the accused has threaten the victim and victim’s parents with dire
consequences when she reached out him to inform about the pregnancy, she has been
thrashed and threatened by the accused on knowing the fact of her pregnancy and the
consequences which now the accused will be liable to.
( ISSUE 4 )

WHETHER THE CONSENT OF THE PROSECUTRIX WAS A VOLUNTARY

CONSENT OR IT WAS A CONSENT-BASED ON THE MISCONCEPTION OF
FACTS ?

It is most humbly submitted in this Hon’ble High Court that the accused is guilty for making a
false promise of marriage having the mala fide intention just to satisfy his lust with the victim.

The accused has made sexual relationship with the victim on the sole basis of the promise of
solemnising the marriage with her , but the accused has no intention to fulfil this promise as
the intention of the accused was with mala-fide intention.

Rape reduces a woman to an animal, as it shakes the very core of her life. In a case, where
the accused had sexual intercourse with the prosecutrix on the pretext of false promise to marry
is an offence under the penal provisions. It can be seen on various occasions that the accused
made a false promise of marriage with the mala fide intention to deceive the victim which has
caused reprehensible situations for women in the society as many girls are being exploited by
the false promise of marriage.

Rape is considered as the most physically and morally reprehensible crime in a society and has
a long-life effect on the mind of victims. It is noted that the family of the victim also suffers
due to this heinous act in society. The victim has to go through a wide array of emotion and
physical suffering.

SECTION 90 OF IPC

A consent is not such a consent as it intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that the consent was given in consequence of
such fear or misconception.

Though, Section 90 IPC does not define consent but provides 'what is not consent'. The
question that whether there was the consent of the victim was present or not would be
ascertained by courts by considering all the relevant facts and circumstances of the case.

In the case of Kaini Rajan v. State of Kerala (2013), the Supreme Court held that Section 375
of IPC contains provisions of rape where the first clause provides that woman is in possession
of her senses and capable of giving consent but the action takes place against her will, and the
second clause states that the act is done without her consent. The court further observed that
the expression without her consent is considered to be an act of reason coupled with
deliberation.

Misconception of fact

The 'misconception of fact' within the meaning of Section 90 read with Section 375 provides
that when the accused gives false promise of marriage without his intention to marry and the
victim believed that the accused has a good faith and gave her consent for sexual intercourse
due to the assurance given by the accused. The act is punishable under the provisions of IPC
and would amount to rape.

It is imperative to state here that a very cautious and sensitive approach is required when the
court is hearing rape cases arising out of any kind of past admitted relationship between the
parties. Whether the act of the accused falls on the wrong side of the law, is to be seen by
examining whether the case in question is a case of mere a case of breach of promise, where
the accused due to his changed circumstances is unable to fulfil his promise of marriage or it
is a case where the accused in a mala fide manner made a false promise to marry, to obtain her
consent for a sexual act. In order to understand the difference between this fine difference, we
can usefully refer to the decision of the Supreme Court in Deepak Gulati v. State of Haryana,
while dealing with an identical issue, has observed as under:

There is a clear distinction between rape and consensual sex and in a case like this, the court
must very carefully examine whether the accused had actually wanted to marry the victim, or
had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as
the latter falls within the ambit of cheating or deception. There is a distinction between the
mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine
whether there was made, at an early stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly understanding the nature and
consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have
sexual intercourse on account of her love and passion for the accused, and not solely on account
of misrepresentation made to her by the accused, or where an accused on account of
circumstances which he could not have foreseen, or which were beyond his control, was unable
to marry her, despite having every intention to do so.
Thus, in order to sustain a prosecution under Sections 375/376 IPC, the facts of the said case
must disclose the circumstances that will throw light on the fact that the accused never had the
intentions to marry the prosecutrix and the prosecutrix agreed for a sexual act relying on the
said false promise and not otherwise.

In the present case the accused have made the sexual relationship with the victim(minor) by
taking her in trust to solemnise the marriage with her , but when the victim went asked for
marriage after she got pregnant by the accused , the accused clearly denied the promise and
rejected to marry the victim. This shows that the accused never had an intention to solemnise
the marriage with the victim. He just have satisfied his lust by taking the advantage of the minor
girl. (The Victim).
 PRAYER

In the light of the arguments advanced and authorities cited , the petitioner humbly pleads
before this Hon’ble High Court to :

 To grant the appeal filed by the Petitioner under section 372 of CrPC.

 To convict the accused for the offence under section 376 , 504 , 506 of IPC & section
3/4 , 5(j)(ii) and section 6 of the POCSO Act.

 To provide for the compensation to the victim of the crime.

Or any other order as it deems fit in the interest of equity , justice and good conscience