MEMORANDUM FOR THE RESPONDENT

IN THE HONBLE SUPREME COURT OF INDIA

IN THE MATTER OF

____________________________________________________________________________________

MS. SHALINI

PETITIONER

VS.

BHAWAR LAL, MOHAN AND SOHAN .

RESPONDENT

____________________________________________________________________________
COUNSEL FOR THE RESPONDENT

CODE NO. 02

MEMORANDUM FOR THE RESPONDENT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS.. (i)
INDEX OF AUTHORITIES

Books Referred.
Articles, Reports and Journals..
Dictionaries and Law Lexicons
Statutes Referred..
Table of Cases..

(ii)
(iii)
(iii)
(iii)
(iv)

STATEMENT OF FACTS
QUESTIONS PRESENTED
SUMMARY OF ARGUMENTS.
ARGUMENTS ADVANCED..

A. Whether the Honble High Court was justified in restoring the sentence as awarded by the
Sessions court?

B. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not
for 20 years or 14 years)?

PRAYER.

MEMORANDUM FOR THE RESPONDENT

LIST OF ABBREVIATIONS

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.

&
A.
AIR
CJ
Edn.
HC
Honble
J
Ors.
p.
Pp.
SC
SCC
SCR
Sec.
UOI
Vol.
V.
SLP
Ld.
F.I.R
I.P.C

And
Article
All India Report
Chief Justice
Edition
High Court
Honourable
Justice
Others
Page
Pages
Supreme Court
Supreme Court Cases
Supreme Court Reporter
Section
Union Of India
Volume
Versus
Special Leave Petition
Learned
First Information Report
Indian Penal Code

MEMORANDUM FOR THE RESPONDENT

INDEX OF AUTHORITIES

Books Referred:
1. Ratanlal and Dhirajlal, The Code Of Criminal Procedure, 17thEd. Reprint 2007, Wadhwa and Co.,
Nagpur.
2. Sardar Mukund and D.S. Chopra , Cases And Materials on Evidence Law, 1 st Ed. (2012), Thomson
Reuters Publishers.
3. Chaturvedi, M.D., Code Of Criminal Procedure 1973, Allahabad Law Agency Publications.
4. Andrew, Evidence, 3rd Ed. (2012), Oxfrod University Press.
5. Lal, Batuk, Commentary On the Code Of Criminal Procedure, 1973, 4 th Ed. (2007), vol.2, Orient
Publication Company.
6. Massey, I.P., Administrative Law, 7th Ed. (2008), Eastern Book Company, Lucknow.
7. Myneni, S.R., The Law Of Evidence 1st Ed. (2008), ASIA Law House, Hydrabad.
8. Joga Rao, Sripada Venkata, Law Of Evidence, 7th Ed. (2002), Lexis Nexis Butterworths.
9. Krishnamachari, V., Law Of Evidence, 6th Ed. (2007), S. Gogia & Company, Hydrabad.
10. Sen, D.N., The Code Of Criminal Procedure, 2006, Premier Publishing Company, Allahabad.

MEMORANDUM FOR THE RESPONDENT

Articles, Reports & Journals:

All India Reporter (AIR)

Supreme Court Cases (SCC)
Supreme Court Reporter (SCR)
Indian Law Journal (ILR)
Criminal Law Journal(Cri LJ)

DICTIONARIES & LAW LEXICONS REFERRED:

Aiyar K.J, Judicial Dictionary: Complete Law Lexicon, 2001, Butterworths, New Delhi.
Bryan A. Garner, A Dictionary of Modern Legal Usage, 2nd Ed.2001, Oxford University Press.
Baryan A. Garner, Blacks Law Dictionary, 8thEd.2004, West Groups, New York.
Gifis H.Stevens, Dictionary of Legal Terms, 3rd Ed.1998, Barronss Educational Series.

STATUTES REFERRED:

Indian Penal Code,1860

The Code Of Criminal Procedure Code, 1973
The Indian Evidence Act, 1872
The Juvenile Justice ( Care and Protection of Children ) Act, 2000

MEMORANDUM FOR THE RESPONDENT

TABLE OF CASES
S.NO.
01
02
03
04
05
06
07
08
09
10
11
12
13

CASE LAWS
Bhoop Ram v. State of U.P.
Dhruvendra Singh and Ors. V. State Of Rajasthan
Ranjeet Singh and Anr. V. State of Rajasthan
Ramnarayan Shivram Kevat V. State of Gujarat
Jaharlal Das V. State of Orissa
R. V. Hodge
Hanumant Govind Nargundkar V. State of M.P.
Sharad Birdhichand Sarda V. State of Maharashtra
Bishnu Prasad Sinha and Anr. V. State of Assam
Mohan Singh V. Prem Singh
State of U.P. V. Lakhmi
Aloke Nath Dutta and Ors. V. State of West Bengal
Dharmender @ Bindu V. State

CITATION
AIR1989SC1329
2001 (3) WLN 380
AIR1988SC672
2011GLH (2)680
AIR 1991 SC 1388
168 ER 1136
1953CriLJ129
1984CriLJ1738
2007(2)ACR1963(SC)
AIR 2002 SC 3582
AIR 1998 SC 1007
(2007) 12 SCC 230
2011(1)JCC65

14

State of Punjab V. Gurmit Singh

1996 (2) SCC 384

15

State of Maharashtra V. Chandraprakash Kewalchand Jain

(1990) 1 SCC 550

16

Om Prakash V. State of U.P.

(2006) 9 SCC 787

17

Joseph alias Baby V. The Sub Inspector of Police, Munnar $ others

ILR2005(1)Kerala554

18

Bacchan Singh v. State of Punjab

1980CriLJ636

19

Shankar Kisanrao Khade V. State of Maharashtra

2013(4)ABR567

20

District and Sessions Judge V. Yoginder Sharma

2008(1)ShimLC105

21

Priya Patel V. State of M.P. and Anr

2006(2)ACR2288(SC)

MEMORANDUM FOR THE RESPONDENT

STATEMENT OF THE FACTS

On 30th June, 2009 while the complainat, Ms. Shalini who was the student of Government nursing college
came out of her room in the hostel, was kidnapped by Bhawarlal,(Chowkidar) aged 30 years and Tribhuvan,
aged 18 years. They forcibly carried her behind the hostel to the Chowkidars room where Mohan, aged 22
years and Sohan aged 20 years were drinking heavy liquor and she was raped one by one. She was carried to the

nearest police station where case under section 363 and 376 (2)(g) was registered against the four accused.A
Panchnamah was prepared , Exhibit- A-1 contained the list of articles confiscated by the investigating
officer.Exhibit A-2 was the site map. Exhibit A- 3 were the photographs of the Chowkidars room with its
contents .
A case under section 376 (2)(g) read with section 364A of Indian Penal Code, 1960 was registered against the
four accused. The complainant sort death sentence for Bhawarlal and damages of rupees 20 lakhs under section
357 and 357A of the Criminal Procedure code with costs. The prosecutor (PW-1) stood to the test of the cross
examination . The statements given by Ramlal (PW-2), Shyamlal (PW-3), Photographer (PW-4), Medical jurist
(PW-4) confirmed that the gang rape was mercilessly done.
Tribhuvan claimed that he was a minor and his minority was proved by his matriculation certificate. Mohan
denied the charge on the basis that he was out of the town when the incident took place. Sohan claimed that he
was persuaded by Tribhuvan to have forcible intercourse for his pleasure. Bhawarlal also confessed guilty and
stated that he received rupees ten thousand who persuaded him for forcible rape.
The Sessions judge convicted the accused as follows

Bhawarlal, Chowkidar to undergo rigorous imprisonment for life,

Mohan, student to undergo rigorous imprisonment for ten years,
Sohan, student to undergo simple imprisonment for seven years,
Tribhuvan, having been proved as minor to be dealt with separately under the Juvenile justice Act 2000,
Damages were awarded of rupees ten lakhs.
Aggrieved by the Sessions Court judgement, the accused as well as the complainant filed an appeal
before High Court of Judicature .The Honble High Court delivered its judgement which supported the
judgement given by the sessions court that the four accused had committed the heinous offence of gang
rape against the nursing student which would have life long effect on the body and mind of the
complainant .
However on appreciation of defence evidence and non availabilty of any independent eye- witness, the
High Court reduced the sentence awarded by the Session Court to the following period Bhawarlal to undergo rigorous imprisonment for ten years
Mohan to undergo simple imprisonment for five years
Sohan to the period already undergone .
Damages were reduced to rupees fifty thousand.

Being aggrieved by the aforesaid orders, the complainant as well as the accused, Bhawarlal, Mohan and
Sohan have filed appeal before the Honble Supreme Court. The Supreme has raised two issues, first regarding

the non restoration of Sessions Court judgement by the High Court. And second regarding reduction of sentence
of Bhawarlal from life imprisonment to rigorous imprisonment for ten years.

MEMORANDUM FOR THE RESPONDENT

QUESTIONS PRESENTED

C. Whether the Honble High Court was justified in restoring the sentence as awarded by the
Sessions court?

D. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not
for 20 years or 14 years)?

MEMORANDUM OF THE RESPONDENT

SUMMARY OF THE ARGUMENTS

I.

Whether the Honble High Court was justified in not restoring the sentence as awarded by the
Sessions Court?

After perusal of entire prosecution case, and examination of prosecution witnesses (PWs) and
defence witnesses (DWs), itself would show that the Ld. Session judge had failed to apply his
judicial mind to consider some point such as in this case, the prosecution has failed to examine the
victim (complainant) under section 164 of Criminal Procedure Code, 1973. In this case, no eye
witness has been examined before the trial court to support the prosecution case and so the
judgement of the Sessions Court was absolutely based on circumstantial evidence. So, the Honble
High Court was justified in not restoring the sentence as awarded by the Sessions Court.

II.

Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life
(not for 20 years or 14 years)
In this case there was no any strong reason to implicate Bhawarlal for the sentence of life
imprisonment as there was absence of any eye witnesses which serves as a important ground for
convicting the accused. The judgement delivered by the Seession Court was solely based on
circumstantial evidence. There was also absence of common intention among the rapists which is the
primary ingredient to prove the offence of rape as per explanation I to Sec. 376 of Indian Penal
Code, 1960. As such, the necessary ingredient of gang rape punishable under Section 376(2)(g) IPC
is lacking in this case. Thus, keeping this view in mind the Honble High Court had reduced the
sentence of Bhawarlal from life imprisonment to a period of rigorous imprisonment for 10 years.

MEMORANDUM FOR THE RESPONDENT

ARGUMENTS ADVANCED

1. Whether the Honble High Court was justified in not restoring the sentence as awarded by the
Sessions Court?

After perusal of entire prosecution case, and examination of prosecution witnesses (PWs) and defence witnesses
(DWs), itself would show that the Ld. Session judge had failed to apply his judicial mind to consider the
following points:

The prosecution has failed to examine the victim (complainant) under section 164 of Code of
Criminal Procedure, 1973 which deals with recording of confessions and statements.1

Judicial confession must be recorded in strict compliance of the provisions of Section164 of the Code of
Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the
aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly
voluntary and had not been by reason of any inducement, threat or torture.

No eye-witnesses has been examined before the trial court to support the prosecution case.

Evidently, there was no eye-witness to the occurrence in this case. Nobody had seen the appellants lifting the
girl, committing rape . The entire prosecution case is based on circumstantial evidences.

The prosecution has failed to take the sperm separately from the accused person for examination
of medical test.

Presence of semen was not found in the vaginal swab.

Indisputably, the investigation was done in a slipshod manner. The undergarments should have
been sent for chemical analysis.

So far, the co-accused Mohan is concerned, he has been implicated or convicted only on the basis
of recovery of his motorcycle in the premises oh the hostel while he has absolutely denied his
presence on the date of occurrence, regarding that facts the prosecution has failed to examine the
witnesses in support of that. And nothing has come against him during the coarse of investigation
or before the trial court.

1 Section 164 of Code of Criminal Procedure Code, 1973

In this case, Bhawarlal and Sohan had confessed about their involvement in the offence .

In case Bishnu Prasad Sinha and Anr. Vs. State of Assam , it was held that a confessional statement is
admissible in evidence, being a relevant fact . The Court may rely their upon if it is voluntarily given . It may
also form the basis of the conviction, where the Court may only have to satisfy itself in regard to voluntariness
and truthfulness thereof.2
We are not oblivious of the general proposition of law that confession would not ordinarily be considered the
basis for a conviction. We must, however, at this stage, notice that this is one of the case where the accused had
stuck to his own confessional statements. He did not make any attempt to retract. He even did not state that it
was not truthful or involuntary.
In case Ranjeet Singh and Anr. Vs. State of Rajasthan, it was held that the nature and extent of the
corroboration may depend upon the facts of each case. The corroboration need not be of any direct evidence
that the accused committed the crime. The corroboration even by circumstantial evidence may be sufficient.
But such evidence as to corroboration must be independent and must not be vague or unreliable.3
In case, Ramnarayan Shivram Kevat Vs. State of Gujarat, it was held that the trial Court committed
serious illegality and mistake in recording the conviction of the accused for the offence charged against him. It
is contended that there is no eye-witness to the incident, and therefore, the prosecution case entirely rests on the
circumstantial evidence.4

In the case of Jaharlal Das v. State of Orissa, it was held that it is settled principle of law that in order to
sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly
established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

2007(2)ACR1963(SC)

3 AIR 1988SC672
4

2011GLH(2)680

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the
conclusion that within all human probability, the crime was committed by the accused and none else, and it
should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. Further,
in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or
suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take
the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the
place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence
should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood
of the innocence of the accused.5

According to the definition of gang rape, it is clear that in order to constitute an offence of gang rape, there
have to be more than two accused who acted in furtherance of their common intention resulting in rape of a
woman. In the instant case, in view of the facts, the prosecution has failed to establish that the four accused
nurtured a common intention in furtherance of which the complainant was raped. As such, the necessary
ingredient of gang rape punishable under Section 376(2)(g) IPC is lacking in this case.

Common intention denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of
minds and an element of participation in action. 6 According to the facts of the case, though there might be
element of participation in action among the accused but there is no such evidence as regarding the prior
meeting of minds and pre-arranged plan.

Therefore, in the light of the considered facts and judgements, The Honble High Court was justified in not
restoring the sentence as awarded by the Sessions Court.

5 AIR 1991 SC 1388.

6 Priya Patel vs. State of M.P. and Anr, 2006(2)ACR2288(SC)

2. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not
for 20 years or 14 years)?
In this case there was no any strong reason to implicate Bhawarlal for the sentence of life imprisonment as there
was absence of any eye witnesses which serves as a important ground for convicting the accused. The
judgement delivered by the Seession Court was solely based on circumstantial evidence. There was also
absence of common intention among the rapists which is the primary ingredient to prove the offence of rape as
per explanation I to Sec. 376 of Indian Penal Code, 1960. As such, the necessary ingredient of gang rape
punishable under Section 376(2)(g) IPC is lacking in this case. Thus, keeping this view in mind the Honble
High Court had reduced the sentence of Bhawarlal from life imprisonment to a period of rigorous imprisonment
for 10 years.
In case of District and Sessions Judge Vs. Yoginder Sharma, it was held that when an appeal has been filed
against the sentence on the ground of its inadequacy, (the court of Session or, as the case may be, the High
Court) shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing
cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the
reduction of the sentence.7
In case Bishnu Prasad Sinha and Anr. Vs. State of Assam , it was held that a confessional statement is
admissible in evidence, being a relevant fact . The Court may rely their upon if it is voluntarily given . It may
7 2008(1)ShimLC105

also form the basis of the conviction, where the Court may only have to satisfy itself in regard to voluntariness
and truthfulness thereof.8
We are not oblivious of the general proposition of law that confession would not ordinarily be considered the
basis for a conviction. We must, however, at this stage, notice that this is one of the case where the accused,
Bhwarlal had stuck to his own confessional statements. He did not make any attempt to retract. He even did not
state that it was not truthful or involuntary.
In case Joseph alias BabyVs. The Sub Inspector of Police, Munnar & others, it was held that In order to
bring a rape within the definition of gang rape, as per Explanation I to Sec. 376 I.P.C. A woman must have been
raped by "one or more in a group of persons acting in furtherance of their common intention". In such
circumstances, each such person is deemed to have committed gang rape. All the persons must be acting in a
group in furtherance of their common intention, thereby the rapists must form a group at the time of the
commission of the offence. The person acting in a group in furtherance of their common intention is
distinguishable from several persons coming with the similar intention of having sexual intercourse with a girl
individually. Then there will not be, acting in furtherance of common intention by group of persons as enjoined
by the Explanation I to Section 376. If at all there was any intention, it was only immoral similar intention of
having intercourse and not a culpable common intention to commit rape.9
In the instant case though there might be similar intention among the accused to commit the offence of rape,
however there was no any evidence of common intention reflected according to the facts of this case. As such,
the necessary ingredient of gang rape punishable under Section 376(2)(g) IPC is lacking in this case.
In the instant case, Ms. Shalini (complainant) sought death sentence for Bhawarla under section 357 of Criminal
Procedure Code, 1973. But in case Bacchan Singh v. State of Punjab ,10 it was held that Life imprisonment is
the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. But this
case is absolutely based on weak circumstantial evidence and is not the rarest of the rare case so on the basis of
this ground death sentence should not be awarded.

8 2007(2)ACR1963(SC)
9

ILR2005(1)Kerala554

10 1980 CriLJ 636

In case R. V. Hodge, it was held that if the evidence is proved by circumstantial evidence, ordinarily, death
penalty would not be awarded. 11
It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove
the actual overt acts of each of the accused . Due to such reasons, The Honble High Court has reduced the
sentence of Bhawarlal to undergo rigorous imprisonment for 10 years and thereby

not to undergo life

imprisonment for whole of the convicts life.

APPEAL BEFORE THE HONBLE SUPREME COURT

The Honble High Court has also failed to consider the aforesaid points before passing the order. That from
the perusal of the impugned judgement and order, passed by the Ld. Session Judge, itself would show that the
conviction order has been passed on the basis of sentimental mind which is absolutely based on society while
nothing has come against the accused persons specifically. It is further stated and submitted that at worst, this
case is absolutely based on weak circumstantial evidence.

11 168 ER 1136

Therefore, in view of the aforesaid facts, both the judgements passed by Ld. Sessions Judge and The Honble
High Court are fit to be set aside and be pledged to pass the acquittal order of the Respondent.

MEMORANDUM FOR THE RESPONDENT

PRAYER

Therefore, in view of the aforesaid facts, both the judgements passed by Ld. Sessions Judge and The Honble
High Court are fit to be set aside and be pledged to pass the acquittal order of the Respondent.

And to pass any order or orders as this Honble court may deem fit and proper in the circumstance of the case
and thus render justice.

All of which is humbly prayed.

Counsel for the Respondent