TEAM CODE-00203

MAHATMAGANDHI MOOT COURT PRESENTATION 2021

BEFORE
THE HON‘BLE HIGH COURT OF BOMBAY
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. /2021

IN THE MATTERS OF
HASAN JARDARI & ORS. - APPELLANT(S)
Vs.
STATE OF MAHARASTA & ANR.--------------------------RESPONDENT(S)

MEMORIAL ON BEHALF OF THE RESPONDENT

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 TABLE OF CONTENTS

TABLE OF CONTENT
INDEX OF AUTHORITIES ....................................................................................... 2
• STATUTES ....................................................................................................... 2
• CASES CITED................................................................................................. 2
• BOOKS REFFERED ........................................................................................ 3
• ARTICLES AND LAW JOURNALS ............................................................... 3
• TRATIES AND CONVENTIONS ..................................................................... 3
• WEBSITES ........................................................................................................ 3

LIST OF ABBREVIATION ......................................................................................... 4

STATEMENT OF JURISDICTION ............................................................................. 5
STATEMENT OF FACTS ........................................................................................... 6-7
STATEMENT OF ISSUES ............................................................................................ 8
STATEMENT OF ARGUMENT ................................................................................. 9-12
ARGUMENTS ADVANCED .................................................................................... 13-33
PRAYER… .................................................................................................................... 34

MEMORIAL ON BEHALF OF THE RESPONDENT

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 INDEX OF AUTHORITIES
STATUTES:
• CONSTITUTION OF INDIA,1950
• CRIMINAL PROCEDURE CODE,1908
• POCSO ACT, 2012
• INDIAN PENAL CODE,1860
• SPECIAL MARRIAGE ACT,1954
• PANCHAYATS (EXTENSION TO SCHEDULED AREAS)
ACT, 1996 (PESA)
• JUVENILE JUSTICE (CARE AND PROTECTION) ACT. 2015
• INDIAN EVIDENCE ACT, 1872

CASES CITED:

INDEX OF AUTHORITIES:-

1. Asma v. State of U.P, AIR 1967 All 158.

2. Bondal & Ors. v. State of Madhya Pradesh, 1983 Cri LJ 607 (MP).

3. Chote Lal & Anr. v. State of Haryana, AIR 1979 SC 1494.

4. Debprosad v. King, AIR 1950 Cal 406.

5. Deelip Singh v. State of Bihar, AIR 2005 SC 203.

6. Isree Pandey, (1867) 7 WR (Cr) 56.

7. Jai Narain v. State of Haryana, 71 Punj LR 688.

8. Khalil-ul-Rahman v. Emperor, 1933 Rang 98: 34 CrLJ 696.

9. Lalta Prasad v. State of M.P., AIR 1979 SC 1276.

10. Lawrence Kannandas v. State of Maharashtra, 1983 CrLJ 1819.

11. Ramesh Singh v. State (Delhi Administration), (1988) 3 Crimes 890.

12. S.Varadrajan v. State of Madras, AIR 1965 SC 942.

13. State of Haryana v. Rajaram, AIR 1973 SC 819.

14. State v. Harbansing, AIR 1954 Bombay 339.

15. State v. Rameshwar, AIR 2005 SC 687.

16. T. D. Vadgama v. State of Gujarat, AIR 1973 SC 2313.

17. The Queen v. Lock (1872) LR 2 CCR 10, 11.

MEMORIAL ON BEHALF OF THE RESPONDENT

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 BOOKS REFFERED:
1. The Indian Penal Code, 1860.
2. 2. The Code of Criminal Procedure, 1973.
3. Pocso act 2012.

ARTICLES AND LAW JOURNALS:

• ARTICLE 14 OF CONSTITUTIONAL LAW OF INDIA

• ARTICLE 15 OF CONSTITUTIONAL LAW OF INDIA
• ARTICLE 21 OF CONSTITUTIONAL LAW OF INDIA
• ARTICLE 32 OF CONSTITUTIONAL LAW OF INDIA
• ARTICLE 226 OF CONSTITUTIONAL LAW OF INDIA

Book of reference:-
1. Ratanlal & Dhirajlal,The Indian Penal Code, 32nd Edition.
2. Ratanlal & Dhirajlal, The Indian Penal Code, 34th Edition.
3. Ratanlal & Dhirajlal, Law of Crimes, Volume 2, 31st Edition.
4. Ratanlal & Dhirajlal, The Code of Criminal Procedure, 18th Edition.

WEBSITES:

www.lexology.com
www.womensweb.in
www.blog.ipleaders.in
www.lawtimesjournal.in
www.legalserviceindia.com
www.scconline.com

MEMORIAL ON BEHALF OF THE RESPONDENT

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LIST OF ABBREVIATION

 &. And
 AIR All India Reporter
 All. Allahabad High Court
 Art. Article
 Bom Bombay High Court
 Anr. Another
 CAL. Calcutta High Court
 CRPC Code of Criminal Procedure
 Ed. Edition
 HON’BLE Honorable
 i.e. That is
 Ors. Others
 SC Supreme Court
 SCC Supreme Court cases
 UOI Union of India
 Vs. versus

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 STATEMENT OF JURISDICTION:

The Hon’ble High Court enjoys the right to preside over this matter by virtue of Section 374 (2)
in Chapter XXIX of Appeals, of The Code of Criminal Procedure, 1973. Section 374 – Appeals
from convictions. (1) ---- (2) Any person convicted on a trial by a Sessions Judge or an
Additional Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years 1 [has been passed against him or against any other
person convicted at the same trial]; may appeal to the High Court.

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 STATEMENT OF FACTS

1. Hasan Jardari is a Muslim, 22 year old Commerce Graduate from taluka Baramati. Falguni,
is a Hindu, pursuing her junior college studies. They are neighbors.

2. They developed a relationship of love and affection and wanted to marry each other. The
only impediment to this is Falguni‟s father who was against inter-religious relationship and
marriage.

3. They would meet clandestinely and Hasan used to assure Falguni of a married life in the
city once he got a job there. He also promised to convince her father, Raghunath, for their
marriage.

4. He, one day, tried to persuade her father but Raghunath did not accede to the
persuasion. Hasan got a job in Pune and disappointed by the refusal, he shifted to Pune for
the same.

5. Two months later, he receives a call from Falguni wherein she asks him to meet her at the
outskirts of Baramati.

6. They meet and she shares her fear that her parents may force her to marry someone else.
They then proceed to a nearby bus stand and leave for Pune. While boarding, Pandurang,
Raghunath‟s friend, sees them.

7. Based on the information given by Pandurang, Raghunath filed a complaint against Hasan.

8. Two days later, Hasan and Falguni are caught living together in a small room. The police
arrested Hasan and booked him under Sec. 361,Sec. 366 , 376 of the Indian Penal Code, 1860
and The Protection of Children from Sexual Offences (POCSO) Act, 2012.

9. Further they obtained the birth certificate of Falguni from the Gram Panchayat which
indicated that she was seventeen years old.

10. The trial court convicted the appellant of both the charges. Aggrieved by the same the
appellant has preferred this appeal.

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 STATEMENT OF ISSUES

Issue that is presented via this appeal before the Hon’ble High Court for discussion and
adjudication is as follows;

Issue I

Whether the conviction under Sec.361 and Sec.366 by the Sessions Court should be set aside?

Whether the ingredients of Sec.361 are met with to constitute the offence under this section
by the appellant?

Whether the ingredients of Sec.366 are met with to constitute the offence under this section
by the appellant?

Issue II

Whether the conviction under sec. 376 IPC ,1860 by the session court should be set aside ?

Issue III

Whether the conviction under POCSO ACT,2012 by the session court should be set aside ?

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 STATEMENT OF ARGUMENTS
ISSUE 1
Whether the conviction under Sec.361 and Sec.366 by the Sessions Court
should be set aside?
“361. Kidnapping from lawful guardianship.—Whoever takes
or entices any minor under [sixteen] years of age if a male, or under
[eighteen] years of age if a female, or any person of unsound mind,
out of the keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is said to
kidnap such minor or person from lawful guardianship. Explanation.—
The words “lawful guardian” in this section include
any person lawfully entrusted with the care or custody of such
minor or other person. xxx
366. Kidnapping, abducting or inducing woman to compel
her marriage, etc.—Whoever kidnaps or abducts any woman with
intent that she may be compelled, or knowing it to be likely that she
will be compelled, to marry any person against her will, or in order
that she may be forced or seduced to illicit intercourse, or knowing it
to be likely that she will be forced or seduced to illicit intercourse,
shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine; [and
whoever, by means of criminal intimidation as defined in this Code
or of abuse of authority or any other method of compulsion, induces
any woman to go from any place with intent that she may be, or
knowing that it is likely that she will be, forced or seduced to illicit intercourse
with another person shall also be punishable as aforesaid].”
1. A perusal of Section 361 of IPC shows that it is necessary that
there be an act of enticing or taking, in addition to establishing the
child’s minority (being Twenty two for boys and seventy for girls) and
care/keep of a lawful guardian. Such ‘enticement’ need not be direct
or immediate in time and can also be through subtle actions like
winning over the affection of a minor girl.
2 However, mere recovery of a
missing minor from the custody of a stranger would not ipsofacto
establish the offence of kidnapping. Thus, where the prosecution fails
to prove that the incident of removal was committed by or at the
instigation of the accused, it would be nearly impossible to bring the
guilt home as happened in the cases of King Emperor v. Gokaran3
and Emperor v. Abdur Rahman4
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3. Adverting to the facts of the present case, the appellant has unintentionally
admitted his culpability. Besides the victim being
recovered from his custody, the appellant admits to having established
sexual intercourse and of having an intention to marry her. Although the victim’s
deposition that she was forcefully removed from the
custody of her parents might possibly be a belated improvement but the
testimonies of numerous witnesses make out a clear case of
enticement. The evidence on record further unequivocally suggests
that the appellant induced the prosecutrix to reach at a designated
place to accompany him. Behind all the chaff of legalese, the appellant
has failed to propound how the elements of kidnapping have been made out.
His core contention appears to be that in view of consensual affair
between them, the prosecutrix joined his company voluntarily. Such a
plea, in our opinion, cannot be acceded to given the unambiguous
language of the statute as the prosecutrix was admittedly 22 years of age.
A bare perusal of the relevant legal provisions, as extracted
above, show that consent of the minor is immaterial for purposes of Section 361
of IPC. Indeed, as borne out through various other
provisions in the IPC and other laws like the Indian Contract Act,
1872, minors are deemed incapable of giving lawful consent.5 Section
361 IPC, particularly, goes beyond this simple presumption. It bestows the ability
to make crucial decisions regarding a minor’s physical
safety upon his/her guardians. Therefore, a minor girl’s infatuation
with her alleged kidnapper cannot by itself be allowed as a defence, for
the same would amount to surreptitiously undermining the protective
essence of the offence of kidnapping.

Similarly, Section 366 of IPC postulates that once the

prosecution leads evidence to show that the kidnapping was with the
intention/knowledge to compel marriage of the girl or to force/induce
her to have illicit intercourse, the enhanced punishment of 10 years as
provided thereunder would stand attracted.
17. The ratio of S. Varadarajan (supra), although attractive at first
glance, does little to aid the appellant’s case. On facts, the case is
distinguishable as it was restricted to an instance of “taking” and not
“enticement”. Further, this Court in S. Varadarajan (supra) explicitly
held that a charge of kidnapping would not be made out only in a case
where a minor, with the knowledge and capacity to know the full
import of her actions, voluntarily abandons the care of her guardian
without any assistance or inducement on part of the accused.

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The cited judgment, therefore, cannot be of any assistance without
establishing: first, knowledge and capacity with the minor of her
actions; second, voluntary abandonment on part of the minor; and
third, lack of inducement by the accused.

Issue II

Whether the conviction under sec. 376 IPC ,1860 by the session court should
be set aside ?
376. Punishment for rape.—
(1) Whoever, except in the cases provided for by sub-section (2), commits
rape shall be punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for life or for a
term which may extend to ten years and shall also be liable to fine unless
the women raped is his own wife and is not under twelve years of age, in
which cases, he shall be punished with imprisonment of either description
for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a term
of less than seven years
1) Court held that the trial Judge accepted the conflicting prosecution case as
disclosed in the statement of the prosecutrix under Sections 154 and 164
CrPC for recording conviction without appreciating the fact that the
aforesaid were not a substantive piece of pieces of evidence and the
evidence brought during the trial did not disclose the commission of any
offence or identity of the perpetrator of the offence.

2) Victim’s statement was recorded under Section 164(5) of the Code of

Criminal Procedure and the said statement would show that she never
consented to the appellant for sex and apart from the alleged offences under
IPC and POCSO

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3) The complainant lodged an FIR under Sections 376(1), 361, 366 and 506 of
the Penal Code, 1860 The Court relied on judgment Anurag Soni v. State of
Chhattisgarh, (2019) 13 SCC 1 and observed that if an accused from the
very beginning has given a promise of marriage without any intention to
fulfil that promise and in lieu of such promise that the accused will marry
her, she gave her consent for sexual intercourse with the accused, then such
consent would not amount to valid consent. It shall come within the ambit
of the misconception of fact under Section 90 of IPC. Thus, such consent
shall not excuse the accused from the charges for the offence of rape under

4) Section 375 of IPC. So that dismissed the bail application as there was a
clear possibility of further danger to the complainant by the accused.

5) In the light of the submissions made by both the parties and after going
through the record, I find that learned trial court has held that on the basis of
the evidence of the prosecutrix as corroborated by other evidences that she
was not only sexually assaulted by the accused but the same was without
her consent and against the will of the prosecutrix. The age of the
prosecutrix was held to be 17 years on the day of incident and further held
that though there was delay in lodging the FIR but it was satisfactorily
explained accordingly. The accused was found guilty of the offence
punishable under section 376 IPC and sentenced as stated above.

6) A rapist not only violates the victims privacy and personal integrity, but
inevitably causes serious psychological as well as physical harm in the
process. Rape is not merely a physical assault, it is often destructive of the
whole personality of the victim. A murderer destroys the physical body of
the victim, a rapist degrades the very soul of the helpless female. The
Courts, therefore, on its shoulder has a great responsibility while trying an
accused on charges of rape. They must deal with such cases with utmost
sensitivity. The Courts should examine the broader probabilities of a case
and not get swayed by minor contradictions or insignificant discrepancies in
the statement of the prosecutrix, which are not of a fatal nature to throw out
an otherwise reliable prosecution case

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 Issue III
WHETHER THE CONVICTION UNDER POCSO ACT,2012 BY THE
SESSION COURT SHOULD BE SET ASIDE ?
When it comes to offences punishable under a special enactment, such
as, POCSO Act, something more is required to be kept in mind in view of the
special provisions contained in the said enactment. Section 31 of the said Act
makes the provisions of the Code of Criminal Procedure applicable to the
proceedings before a Special Court and it provides that the provisions of the
aforesaid Code including the provisions as to bail and bonds shall apply to the
proceedings before a Special Court. It further provides that the Special Court
shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions
of Cr.P.C including the provisions as to grant of bail are applicable to the
proceedings in respect of offences under the POSCO Act. The present
application is, therefore, required to be dealt with by this Court in accordance
with the provisions contained in Section 439 Cr.P.C. The other provisions of
the POCSO Act, which are also required to be kept in mind, are Sections
29 and 30, which read as under:

The designated POCSO Court, Kanpur Nagar, on Wednesday rejected the

criminal appeal of rape accused Dinesh Kumar in which he had challenged
the order of the juvenile justice board.

Ganga Prasad Yadav, special prosecutor, stated that one Dinesh was arrested
by the Naubasta police on the complaint filed by the victim's mother in
which she had alleged that her six year old daughter had gone to attend the
Tilak ceremony at Vijay Munshi’s house on June 2, 2019. Around 9.30
pm, one Satyam Gautam, a resident of the same locality, came to her with
her daughter whose clothes had blood stains. Satyam said that Dinesh, a
resident of Nayee Basti Panki, had enticed the girl and took her to a brick
kiln and physically exploited her.

Police registered a case against Dinesh under Section 376 IPC and Section 3/4
of the POCSO Act. Since the age of the accused was 16 years, police filed
the chargesheet in the court of juvenile justice board where the accused
filed his bail application. The juvenile justice board sought a report from
the district probation officer.

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The special prosecutor said the probation officer in his report said that there were
all possibilities that the accused might have been involved in other crimes,
therefore, it was not in the interest of justice to grant him bail. The juvenile justice
board, taking cognizance of the report, rejected the bail application and observed
that there was no ground to grant him bail.

ARGUMENTS ADVANCE

ISSUE 1
Whether the conviction under Sec.361 and Sec.366 by the Sessions Court
should be set aside?

UNDER 361 IN IPC:-

The accused was charged for kidnapping a minor girl, below 15 years of age from the
lawful guardianship of her father. It was established that the accused had an earlier stage
solicited or induced minor girl to leave her father’s protection by conveying or indicating
an encouraging suggestion, that he would give her shelter. Holding the accused liable for
kidnapping under section 363, the Supreme Court said that the mere circumstances that
his act was not the immediate cause of her leaving her parental home or guardian’s
custody would constitute no valid defence and would not absolve him from the offence
of kidnapping. The question truly falls for determination on the facts and circumstances
of each case; Thakorilal D Vadgama v. State of Gujarat, AIR 1973 SC 2314: (1973) 2
SCC 413. Lawful guardian Where facts indicate that a girl left her father’s protection,
knowing and having capacity to know the full import of what she was doing and
voluntarily joined the accused, the offence of kidnapping cannot be said to have been
made out; S. Varadrajan v. State of Madras, AIR 1965 SC 942. Use of word ‘keeping’:
Meaning of The use of the word “keeping” in the context connotes the idea of charge,
protection, maintenance and control; further the guardian’s charge and control appears to
be compatible with the independence of action and movement in the minor, the
guardian’s protection and control of the minor being available, whenever necessity
arises. On plain reading of this section the consent of the minor who is taken or enticed is
wholly immaterial: it is only the guardian’s consent which takes the case out of its
purview. Nor is it necessary that the taking or enticing must be shown to have been by
means of force or fraud. Persuasion by the accused person which creates willingness on
the part of the minor to be taken out of the keeping of the lawful guardian would be
sufficient to attract the section; Prakash v. State of Haryana, AIR 2004 SC 227.

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 1. The literal meaning of kidnapping is child stealing. Kidnapping is of two types
i.e. kidnapping from India and Kidnapping from lawful guardianship. These two
forms of kidnapping may overlap each other.
Section 360 of Indian Penal Code (IPC) states that whoever takes a person beyond the
limits of India without the consent of such person or any person legally authorized to
give consent on his behalf then he shall be liable for the offence of kidnapping from
India. ‘India’ means the territory of India excluding the State of Jammu and Kashmir.
Under this offence, it does not matter whether the victim is major or minor. If a person
attains majority and gives consent for such taking then no offence shall be committed.
2. Out of keeping of lawful guardian: the word ‘keeping’ means within the
protection or care of the guardian. The minor doesn’t need to be in the physical
possession of the guardian. It connotes the idea of charge and protection whether
actual or constructive. A child may not always be in the direct physical custody of
the guardian but as long as the whereabouts of the child are known and there is
control upon the movement of the child, he is said to be within the keeping of the
guardian. When a child is taken to such an area outside the circle where the
guardian no longer knows the whereabouts of the child nor any control upon his
movements, the child is said to be kidnapped. The guardianship not only includes
parents but also persons to whom the custody of the child has been lawfully
entrusted e.g. teachers, relatives, servant etc.
If the minor is not in the custody of a lawful guardian, the offence cannot be committed.
Thus an orphan cannot be kidnapped, similarly, a minor who has abandoned the house of
her guardian on her own will and has no intention return, she cannot be considered to
continue in the keeping of her lawful guardian
3. Without the consent of the guardian: the consent of the child is completely
immaterial and it is the consent of the guardian alone which is taken into
consideration because the child is considered incapable of giving valid consent.
The consent given under this section should be free i.e. it must not have been
obtained by fraud or misrepresentation. If the guardian gives consent after the
commission of the offence, the accused shall still be liable for the offence.
It must also be noted that kidnapping is an offence of strict liability i.e. the intention of
the accused is immaterial. Thus even if the accused took minor out of the keeping of the
guardian for a good cause, he shall still be liable for the offence of kidnapping

Issue II
Whether the conviction under sec. 376 IPC ,1860 by the session court should
be set aside ?

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“376.Punishment for sexual assault – 1 (a) whoever, except in the cases provided for
by sub-section (2) commits 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
10 years and shall also be liable to fine.
(b) If the sexual assault is committed by a person in a position of trust or authority
towards the complainant or by a near relative of the complainant, he/she shall be
punished with rigorous imprisonment for a term which shall not be less than ten years
but which may extend to life imprisonment and shall also be liable to fine.

Explanation 1. – “Minor ” in this sub-section, Section 376 C, and 376 D (2), (3) means
a person below the age of sixteen years.”

Explanation 2 -Where a person is subjected to sexual assault by one or more in a group

of persons acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang sexual assault within the meaning of this sub-section

In order to bring up the charge of rape against a man, it is necessary to establish

that the “sexual intercourse” complained of was either against the will or without
her consent. Where the consent is obtained under the circumstances enumerated
under clauses firstly to sixthly, the same would also amount to rape.

In the case of Dileep Singh v. State of Bihar [(2005)1SCC 88], the SC held that
Will and consent may connote the same meaning however the legal definition of
both the terms are different. A may not have been willing but still, consent to a
sexual act. Thus, the IPC, 1860 categorizes ‘will’ and ‘consent’ under 2 separate
heads.

In the case of State of UP v. Chottey Lal [(2011) 2 SCC 550], the SC observed that
the expressions contained in the statutory definition of ‘Rape’ “against her
will” & “without her consent” may overlap in some cases. However, their
dimensions are slightly different. “Against her will” ordinarily means that the
sexual intercourse took place despite the victim’s resistance and opposition. On
the other hand, consent can also be obtained via force and compulsion. Therefore,
without consent means that will wasn’t involved at all; it’s not the same the other
way round.

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Section 90 of IPC has established a few tests with regard to “consent”. In this very
context, State of H.P v. Mango Ram [(2000) 7 SCC 224] the Supreme Court
observed that submission of one’s body under the fear or under a terror-stricken
mind and even misconception cannot translate into consent. Section
375 doesn’t voluntary consent and voluntary participation into the sexual act and
not just consent and participation.

Issue III
Whether The Conviction Under Pocso Act,2012 By The Session Court Should
Be Set Aside ?

The Protection of Children against Sexual Offences Act easily explained

A 2007 survey by the Ministry of Women and Child Development showed that
53% of children in India had been sexually abused. At the end of our Child Sexual
Abuse episode, we asked if there should be a specific law against this crime. Out
of all the responses we received, 99.6% said ‘Yes’.
This was only one indication of the increasing public pressure for the law, which
was passed by both houses of Parliament on May 22, 2012. The Protection of
Children against Sexual Offences Act (POCSO) came into effect on Children’s
Day, November 14, 2012.
Salient features of POCSO
1. It is gender neutral.
2. It makes the reporting of abuse mandatory.
3. It makes the recording of sexual abuse mandatory.
4. It lists all known types of sexual offences towards minors.
5. It provides for the protection of minors during the judicial process.
Provisions of POCSO
• Police officers must bring every case to the attention of the Child Welfare
Committee within 24 hours of receiving a report.
• They must also be in plain clothes while recording the minor’s statement so
as to not appear intimidating.
• The statement must be recorded in a place chosen by the minor, in the
presence of a person that he/she trusts.
• The medico-legal examination for the collection of forensic evidence must
be conducted only by a female doctor, in the presence of a person that the
minor trusts.

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 • Special courts have been set up to conduct speedy, in-camera trials. These
courts must ensure that:
» the minor is not exposed in any way to the accused during the recording of
evidence.
» the minor’s identity is not disclosed at any time during the investigation or
trial.
» the minor is not made to repeat his/her testimony in court, and that he/she
can give the testimony using a video link.
» the case is disposed within one year from the date of the offence being
reported.
» the defence routes all questions through the judge and is not allowed to
ask them in an aggressive manner.
» an interpreter, translator, special educator or any other expert is present in
court for the minor’s assistance.
» compensation for medical treatment and rehabilitation is given to a minor
who has been sexually abused.
Punishments listed under POCSO
1. Penetrative sexual assault:
Penetration that is peno-vaginal, peno-oral, peno-urethral or peno-anal, fingering
or object penetration.
Punishment: Not less than 7 years; this may extend to life imprisonment, and a
fine (Section 4).
2. Aggravated penetrative sexual assault:
Committed by a person of trust or authority such as a police officer.
Punishment: Not less than 10 years; this may extend to rigorous life imprisonment,
and a fine (Section 6).
3. Non-penetrative sexual assault:
Committed by whoever, with a sexual intent,
» touches the vagina, penis, anus or breast of the child
» makes the child touch the vagina, penis, anus or breast of such person or any
other person
» does any other act with sexual intent which involves physical contact without
penetration.
Punishment: Not less than 3 years; this may extend to 5 years, and a fine (Section
10).

4. Aggravated non-penetrative sexual assault:

Committed by a person of trust or authority such as a police officer.
Punishment: Not less than 5 years; this may extend to 7 years, and a fine
(Section 10).

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5. Sexual harassment:
Unwelcome sexual remarks, emails or telephone calls; taunting, jeering, demands
or requests for sexual favours.
Punishment: 3 years and a fine (Section 12).
6. Use of minor for pornographic purposes:
Involving a child in the preparation, production and/or distribution of pornography
via print, electronic, computer or any other technology.
Punishment: 5 years and a fine, and in the event of second conviction, 7 years and
a fine (Section 14 (1)).
Ghanashyam Misra vs The State on 27 November, 1956
Way back in 1956, the Orissa High Court, recognizing that the offence was committed
by offence is committed by a person in a position of trust or authority for the
child, enhanced the sentence of Ghanashyam Misra, a school teacher who raped a 10
year old girl in the school premises. The judgement reads – “The circumstances are all of
an aggravating nature. The victim is a young girl of ten years, and the culprit an adult of
39 years… He took advantage of his position by inducing her to come inside the School
room and committed such an atrocious act, the consequence of which might as well be
the complete ruin of the future life of the girl.’ Not only did the court enhance the
sentence to seven years but also ordered the accused to pay a compensation to the father
and the child.

Karnataka High Court: A Division Bench of B. V. Nagarathna and M.G. Uma

JJ. held that the accused does not have a right to seek bail for the reason that the
mandate under Section 35 of the POCSO Act has not been completed.

MEMORIAL ON BEHALF OF THE RESPONDENT

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 PRAYER

Wherefore, in light of the issues raised, arguments advanced, and authorities cited, may
this Hon’ble Court be pleased to:-

1. Set aside the conviction of Hasan Jardari and Not free him from all the charges
framed upon him.

2. To Declare, conviction of Hasan Jardari not contrary to the process of law and must
not be set aside.

AND/OR

Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.

MEMORIAL ON BEHALF OF THE RESPONDENT

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MEMORIAL ON BEHALF OF THE RESPONDENT

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