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Rgnul Curriculum Moot 2016

TEAM- 15

IN THE COURT OF SESSIONS

THE STATE
(PROSECUTRIX)
V.

THE ACCUSED
(RESPONDENT)

IN SUBMISSION OF PARTIAL FULFILMENT OF 9 SEMESTER
TH

RGNUL CURRICULUM MOOT 9 SEMESTER (5 YEAR)
TH

MEMORIAL FOR THE RESPONDENT
-THE ACCUSED-

TH

. State of Himachal Pradesh Cr........... M....................3 Statement Of Jurisdiction...... 2....................(M) No............................................................... Nandu Mandal.............. 1 Table of Authorities.....................Misc.................. 6 Arguments Advanced.............................................................. 7 II.... 798 of 2015...........4 Summary of Arguments..................................................Rgnul Curriculum Moot 2016 TABLE OF CONTENTS Table of Contents..................2 List of Abbreviations................................................................................. State of Karnataka v.................................................................................................................................. Yogendra Mandal S/o late Chulai Mandal and Vinay Ram v........................ State of Bihar Cr.................................................7 I...........................P........................................................10356 of 2011.......................... No.....................4 Statement Of Facts...................... Sahil Thakur v.............The Accused is not liable to be charged under Section 4 r/w Section 3 of Posco Act................................. 11 TABLE OF AUTHORITIES CASES 1.................................................................................................. F................................. 3......................................................................................................................................................The Accused is not liable to be charged under Section 366(a) and 376 of the Indian Penal Code........................................ 2012............... .................10 Prayer and Conclusion.................................. Nataraj 2008(56)BLJR2583.......

P& H Har Him. State of A.P LIST OF ABBREVIATIONS & And ¶ AIR KLJ Mad MLJ Cal Del CrLJ Kar UP Bom.Rgnul Curriculum Moot 2016 4. Sannaia Subba Rao v. WB RCR SC .

a Special Court shall also try an offence other than the offence referred to in subsection (1). 2005 or a Special Court designated for similar purposes under any other law for the time being in force. 1Designation of Special Courts : (1) For the purposes of providing a speedy trial. 1973. the State Government shall in consultation with the Chief Justice of the High Court. by notification in the Official Gazette. designate for each district. 2000. . with which the accused may. or conduct or manner or facilitates abuse of children online. (3) The Special Court constituted under this Act. a Court of Session to be a Special Court to try the offences under the Act: Provided that if a Court of Session is notified as a children’s court under the Commissions for Protection of Child Rights Act. then. shall have jurisdiction to try offences under section 67B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act. 2012 read with Section 184(a) and Section 220 of the Code of Criminal Procedure.Rgnul Curriculum Moot 2016 STATEMENT OF JURISDICTION The respondent has approached the Hon’ble Court of Sessions under Section 28 1 of POSCO ACT. notwithstanding anything in the Information Technology Act. 1973 be charged at the same trial. under the Code of Criminal Procedure. such court shall be deemed to be a Special Court under this section. (2) While trying an offence under this Act.

during night hours. the accused attempted to have sexual intercourse with her. He also requested her to come on the next day at 06. she stopped her studies. which was in his occupation. PARA III When her mother could not locate her.2014. . PARA II The accused took her to a rented house. She was studying 11th standard and at that time accused became acquainted with her. when she went there. there was nothing wrong in having sexual intercourse with him. she proceeded to Police Station Model Town Patiala to make a complaint. the accused had repeated sexual intercourse with her. On that day. With a view to get consent from her. she had gone to a church at patiala. The accused met her near the church and expressed his desire to marry her. she declined to give consent. on account of her ill-health. the accused told her that since he was surely going to marry her.00 AM to Kali Devi Temple. 2012.02. On 15. But.Rgnul Curriculum Moot 2016 STATEMENT OF FACTS PARA I Victim’s family was residing at Patiala. 376 of the Indian Penal Code. By giving such assurance. Accordingly. 1860 and Section 4 of the POCSO Act. the accused took her in a bus to Bathinda. During the month of December 2013. Case was registered after finding the accused under Section 366(A). He gave promise to her that he would marry her. She (victim) was hardly Seventeen years old at the time of occurrence.

the Accused is not liable to be charged under Section 376 of the Indian Penal Code. 2012? SUMMARY OF ARGUMENTS I. the Accused is not guilty under Section 366(a) of the Indian Penal Code. WHETHER ACCUSED IS LIABLE TO BE CHARGED UNDER SECTION 366(A) AND 376 OF PENAL CODE? THE ACCUSED IS LIABLE TO BE CHARGED UNDER SECTION 4 OF THE POSCO ACT. II. . WHETHER THE THE INDIAN II. Secondly. Firstly.Rgnul Curriculum Moot 2016 QUESTIONS PRESENTED I. 2012. The Accused is not liable to be charged under Section 4 of POSCO Act.

the accused attempted to have sexual intercourse with her. line 7. . THE ACCUSED 376 OF THE IS NOT LIABLE TO BE CHARGED UNDER SECTION 366(A) AND INDIAN PENAL CODE It is submitted that the Accused is not liable to be charged under Section 366(a) and 376 of the Indian Penal Code. she had gone to a church at patiala. 3Moot Proposition 15.3 On that day.2014. 2 When she went there. the accused told her that since he was surely going to marry her. the accused took her in a bus to Bathinda and took her to a rented house. line 5.02.Rgnul Curriculum Moot 2016 ARGUMENTS ADVANCED I. during night hours. With a view to get consent from her. 1860. On 15. which was in his occupation. there was nothing wrong in 2Moot Proposition 15. He gave promise to her that he would marry her.00 AM to Kali Devi Temple. The accused met her near the church and expressed his desire to marry her and requested her to come on the next day at 06.

It is attracted when a minor girl is procured by one person for the seduction of sexual 4Moot Proposition 15.Rgnul Curriculum Moot 2016 having sexual intercourse with him. in a hotel at Solan (Oachghat). Not only did she travel a distance of more than 150 KM and stayed with the petitioner. State of Himachal Pradesh5 it was observed that “it was the prosecutrix.4 The charge levied against the accused in the form under Section 366(a) of the Indian Penal Code is not valid.—Whoever.P. In such background. Section 366(a) states that“Procuration of minor girl. and shall also be liable to fine. forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years. induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be. line 10. It is clear from a reading of the said provision that it is necessary to have the involvement of at least three persons to attract the said provision. the allegations set out by the prosecutrix cannot be taken at the face value and have to be taken with a pinch of salt. but later she even accompanied the petitioner for a joy-ride to Chandigarh. the accused had repeated sexual intercourse with her.” In the Judgement. or knowing that it is likely that she will be. 5Cr. by any means whatsoever.V. that too. a minor girl aged below the age of 18 must be induced to go from place to place or to do any act with the intent that she will be forced to do illicit intercourse with any other person. .” In a similar case of Sahil Thakur v.Binoy Ram A reading of section 366(a) shows that in order to attract the said provision. Revision vs By Adv. who travelled far and distant places to be with the petitioner and she has remained with him for more than five days without any protest. Sri. By giving such assurance.(M) No. M. 798 of 2015.

for adequate and special reasons to be mentioned in the judgment. 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. The stand of the prosecutrix regards to Section 376 is also not valid. or (c) being on the management or on the staff of a jail. 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. Conviction of the accused for the offence punishable under section 366(a) as confirmed by the lower appellate court is set aside and so also the sentence awarded by the lower appellate court for the said offence. He is set at liberty.Rgnul Curriculum Moot 2016 intercourse by a third person. or (b) being a public servant.— (a) being a police officer commits rape— (i) within the limits of the police station to which he is appointed. It is held that he is not guilty of the offence under section 366(a) of IPC. He is acquitted of all charges under section 366(a) levelled against him. Section 376 states that“Punishment for rape (1) Whoever. except in the cases provided for by sub-section (2). or (iii) on a woman in his custody or in the custody of a police officer subordinate to him. impose a sentence of imprisonment for a term of less than seven years. takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed. If a person induced a minor girl to go along with him and had sexual intercourse with her. section 366(a) cannot have any application. remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes . in which cases. (2) Whoever.

P7 it was held. impose a sentence of imprisonment of either description for a term of less than ten years. to constitute an offence under Section 366A prosecution should prove and establish by cogent and reliable evidence that a minor girl under the age of 18 years was induced to come from one place to the other with the intention that such girl may be. In the case of Sannaia Subba Rao v. . Chief ingredient is that the girl is made to go from one place to other with the intention or knowledge that she may be forced to illicit intercourse. remand home. F. shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may. 72008(56)BLJR2583. or (d) being on the management or on the staff of a hospital. in regards to the present case the allegations of prosecutrix as to sexual intercourse do not hold merit. Nataraj6 where it was observed that it would be erroneous to rely upon the sole testimony of the prosecutrix without any corroboration of medical evidence and the accused should be given benefit of doubt. In the present case.Rgnul Curriculum Moot 2016 advantage of his official position and commits rape on any inmate of such jail. forced to have illicit intercourse with another person. State of A. Therefore. takes advantage of his official position and commits rape on a woman in that hospital.” This can be substantiated by the case of State of Karnataka v. for adequate and special reasons to be mentioned in the judgment. evidence on record does not reveal any such intention. 62016(1) ACR500. or (g) commits gang rape. or (e) commits rape on a woman knowing her to be pregnant. place or institution. Prosecution has not been able to conclusively prove and establish by cogent evidence that the prosecutrix was kidnapped by Accused persons with the intention of having sexual intercourse with them or with any other person. or (f) commits rape on a woman when she is under twelve years of age.

no punishment shall be imposed on such child. urethra or anus of a child or makes the child to do so with him or any other person. the urethra or anus of the child or makes the child to do so with him or any other person. THE ACCUSED 3 OF IS NOT LIABLE TO BE CHARGED UNDER SECTION 4 R/W SECTION POSCO ACT. who makes false complaint or provides false information against any person. Section 3 reads as follows“Penetrative sexual assault : A person is said to commit "penetrative sexual assault" if— (a) he penetrates his penis. . extort or threaten or defame him. not being the penis. into the vagina. or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina. in respect of an offence committed under sections 3. Reference has to be made of Section 22 of POSCO Act which states Punishment for false complaint or false information: (1) Any person. or (b) he inserts. urethra. anus. mouth. into the vagina. urethra of the child or makes the child to do so to such person or any other person. 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. shall be punished with imprisonment for a term which may extend to six months or with fine or with both. any object or a part of the body. 2012. to any extent. 5. vagina. to any extent. In the POSCO Act Section 2(d) defines "child" means any person below the age of eighteen years.” And Section 4 deals with the punishment for such penetrative sexual assault.Rgnul Curriculum Moot 2016 II. 7 and section 9. solely with the intention to humiliate. 2012 It is submitted that the accused is not liable to be charge under Section 4 r/w Section 3 of POSCO Act. (2) Where a false complaint has been made or false information has been provided by a child.

In these facts. She continued to have sexual intercourse with the accused for a long period on the assurance and promise that he would marry her. prosecutrix was aged about 17 years. the appellant. Her evidence also reveals that the appellant once disclosed to marry her but he could not marry her as his father objected to the marriage. It establishes that there was no misconception of fact in the instant case and the victim was a consenting party and her conduct was nothing but an act of promiscuity on her part. accused and victim continued to meet and have sex on several occasions. 1991 to 4th August. On 4th August. 1991 when she last met with the appellant on that date also she enjoyed sexual intercourse with the appellant as it transpired from her evidence. There was love affair between the victim and accused. until one day accused refused to solemnize marriage with her. Calcutta High Court held as under: "The evidence and circumstances also supports that the victim had full consent in sexual intercourse with the appellant as from January. She even did not report to her parents about her pregnancy during initial stages. L. State of Bihar.Rgnul Curriculum Moot 2016 It is submitted on behalf of the Respondent that the Prosecution with the intention to humiliate and defame the respondent is making a false complaint of penetrative sexual assault and therefore the allegations stand void ab initio. She reported it to her mother only when the appellant refused to marry her. 1991. In these facts. It also appears that she continued without any protest demur on objection with the affair of having sexual intercourse with the appellant since much prior to the alleged occurrence." In Kuber Chandra Das vs. victim was about 16 years of age. It was alleged that one day accused had sexual intercourse with the victim forcibly and when she raised objection. Thereafter. In this view of the matter the . State of West Bengal 2005 (3) Crimes 644. Jharkhand High Court has held as under: "It is crystal clear as per the testimony of PW 1. 4776. accused told her that he will marry her soon. In Krishna Pada Mahato vs. She had regular sexual intercourse with the appellant but did not report anything to her parents. Relying on the decisions cited above by the learned Advocate of the appellant I am of opinion that in the instant case there was no misconception of fact and the victim being a full grown lady voluntarily consented to having sexual intercourse with the appellant. the informant that it is a case where on her own showing the informant was willing and fully consenting party to the act of sexual intercourse with.J. 2004 Crl.

Here PW 1." . Therefore. in the facts and circumstances of this case the Informant is deemed to have given consent so far as sexual intercourse between her and the appellant is concerned and such consent cannot be called as an illegal consent so far as the applicability of Section 376 of the Indian Penal Code is concerned.Rgnul Curriculum Moot 2016 allegation that the informant was made to have sexual intercourse with the accused on the assumption based on an assurance and promise or giving out an understanding that appellant would marry her cannot amount to the lack of consent so far as the informant is concerned. This consented sexual intercourse continued for a long period prior to the occurrence and until the day of reckoning when she filed this case on assumption that the appellant has cheated her by refusing to solemnize his marriage with her. the informant is a major woman and if she gives consent even on any of the aforesaid assumptions and thus she has sexual intercourse with the appellant she will be under all circumstances and in all respect considered to be a consenting party. Viewed thus. in such a situation the appellant cannot be deemed to have even prima facie committed the offence of rape under Section 376 of the Indian Penal Code.

the Respondent respectfully requests the Court to adjudge and declare that: A.Rgnul Curriculum Moot 2016 PRAYER AND CONCLUSION Wherefore in the light of issues raised. ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY. 2012. X AGENTS FOR THE RESPONDENT . THE ACCUSED IS NOT LIABLE TO BE CHARGED UNDER SECTION 366A AND 376 OF THE INDIAN PENAL CODE B. arguments advanced. THE ACCUSED IS NOT LIABLE TO BE CHARGED UNDER SECTION 4 OF THE POSCO ACT. JUSTICE AND GOOD CONSCIENCE. reasons given and authorities cited.