MOOT PROPOSITION

1. The Respondent Ganesh Gaitonde who just then graduated from the Medical College was
staying with the family consisting of his parents, his brothers, his sister-in-law Smt.
Samaskhi and niece Richa at Borreveli, Mumbai. His elder brother at the relevant time was
working as Superintendent of Police in Nasik District.Within the same locality 3 or 4 houses
away from the house of the Respondent, the Appellant Prakash Javedkar was living with
his wife name, Elesabeth Javedkar, his sister Tulsi and his minor daughter Isha Javedkar , a
girl aged about 11 years. The family members of the Respondent and Prakash Javedkar were
on cordial relationship making frequent visits to the houses of each other.

2. Isha javedkar the victim was studying in the third standard in Helix International School along
with her class-mate Richa. Isha used to come frequently to the house of the Respondent to play
with Richa and her other girl friends. The Respondent developed friendship with the girls who
come to his house to play with his niece Richa by narrating interesting stories from comic
books.

3. On 31.5.2012 at about 4 or 5 p.m. Richa called Isha stating that her mother wanted her
come to her house. Accordingly, Isha accompanied by her younger brother went to the
house of Richa, but found none except the Respondent. When the two girls, namely,
Isha and Richa started playing in the drawing room, the Respondent whispered
something in the ears of Richa, who then told Isha that she had been asked by her uncle to
take his brother outside and narrate him some stories. As soon as Richa went outside
taking brother, the uncle bolted the door from inside, completely stripped off himself; removed
the clothes of Isha and made her naked and asked Isha to do fellatio. Thereafter the uncle
cuddled and pined Isha close to him, and slightly inserted his penis into her vulva and started
sucking her lips. After few seconds he freed the girl from his clutches and thereafter put on his
pyjamas and asked Isha to wear her jeans. Again the uncle longing for his lascivious
passion, laid down Isha on a sofa in his drawing room and remained lying on her and closed
her mouth so that the girl could not scream. A little later after wetting his sexual appetite he got
up; opened the door allowed the girl to go out. While the girl was leaving the drawing hall, the
uncle threatened her not to disclose this affair to anyone, otherwise his elder brother who
is a high ranking police officer would mercilessly beat her parents. Isha came out of the room
and told Richa as to what all happened inside the room.

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4. In the evening of that day she told her mother Elesabeth Javedkar that the Respondent
was a dirty fellow and he had asked her to suck his private part, to which her mother
instructed not to go to the house of Respondent thereafter. However, Isha did not
narrate the entire episode to her mother on the day of the incident. When Isha again
narrated this incident to Richa, the latter told her that her Chacha, referring to
Respondent, was like a dog and that he used to do the same thing with her also by stripping of
her whenever she came from the school. Lata Joshi, a tenant in the house of Prakash Javedkar
seeing Isha and Richa whispering each other asked them what was the matter. Isha narrated
the incident to her and other girl friends. On the third day, Isha told her mother the entire
incident which took place in the drawing hall of the house of the Respondent on 31.5.2012.

5. On hearing this horrid episode, Elesabeth Javedkar was very much annoyed and conveyed
this painful and jarring piece of information to Tulsi. Then Elesabeth Javedkar, reeling under
terrible shock, telephoned to her neighbours Shalesh Singh and Shalendra Kaur and informed
them about the sexual abuse perpetrated by the Respondent on her daughter. At about 9.00 p.m.
the Appellant, Prakash Javedkar came to his house and learnt about the occurrence.
Faced with the traumatic situation, the helpless panic stricken parents rushed to the house of
the Respondent accompanied by Tulsi, Shalesh Singh and Shalendra Kaur and searched for
the Respondent, but could not find him there.
All those including the rightful indignanted parents of victim Isha, kept waiting till mid night.
The Respondent after returning realising that the entire atmosphere was thick with the
charge of sexual molestation against him and finding him in culdesac voluntarily
confessed his crime stating that he had raped Isha and also had committed the same kind of
sexual assault on earlier occassions with Richa, Kukko and other girls of that locality,
but being a Doctor he had been careful enough not to repture their hymen. Prakash
Javedkar acerbated and mentally perturbed by hearing the confessional statement rushed
towards the Respondent to attack him.
6. When the parents of Respondent arrived next morning, Prakash Javedkar informed
Sooryavansham that his son (Respondent) had raped his minor daughter Isha,
Sooryavansham was not prepared to believe their accusation. Thereafter at the request of
Prakash Javedkar, he called his son and questioned him. Though the Respondent first abjured
his complicity, however, admitted his abominable crime of sexual assault on Isha the confession
made by the Respondent was thus: "I have raped the girl, but I have not ruptured her hymen.
You should not be perplexed, I know what are my limits, I am a doctor. You need not to go to
any doctor.

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7. Thereupon Sooryavansham gave his stick to Prakash javedkar and said that it was for him
either to show mercy or to give corporeal punishment as he deemed fit and also made an
earnest appeal to Prakash Javedkar not to precipitate any action against his son. Presumably,
Prakash Javedkar and his family members thinking that the police might not take any
action against the Respondent since his brother was a Superintendent of Police and his family
was wielding a high influence in that area and also fearing that any publicity of this
incident would bring only a disrepute to their family and that the future life of their
daughter would be completely shattered, suffered in silence for 2 or 3 days, without
approaching any authority.

8. However, on 5.6.2012, Prakash Javedkar mustered his strength and lodged a criminal
complaint against the Respondent. A case was registered by the SHO of Borreveli Police
Station and the investigation was entrusted to ASI. During the course of the investigation
the victim Isha was examined by Dr. Issa on 5.6.2012 on being sent by the Police. According
to Dr. Issa there was an abrasion on the medial side of Labia Majora about 1-1/2" in length,
redness present around the labia minora with a white discharge, and hymen was intact and
admitted tip of little finger. Dr. Issa has further stated that she prepared a slide for
confirmation of the white discharge found around labia minora. In the cross-examination she
has deposed that the white discharge was not flowing out, but it was at the same place where
she noticed the redness and the discharge could have been as a result of infection which
itself could have caused the redness found around labia minora. Further she has stated that she
did not find any crest on labia majora. The Chemical Examiner after examination of the slide,
which did not reveal any seminal stains in the virginal smear. A Medical Officer
examined the Respondent on 11.6.12 and found him as a virile person with well built body
capable of performing sexual inter- course, but found no injuries. The Investigating Officer after
examining all the witnesses and completing the investigation filed the charge sheet against the
Respondent for the offence of rape punIshable under Section 376 IPC.

9. The Respondent took his trial on the indictment that he committed rape on Isha between 4 and
5 p.m. on 31.5.12 in the drawing hall of the house of Respondent. Of the witnesses examined
Isha alone speaks about the actual commission of rape on her. Though Isha reported
this unpleasant incident to Richa immediately after coming out of the drawing hall,
Richa has not been examined by the prosecution.

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10. The Trial Court in its judgment arrived at a conclusion that the prosecution launched against
the Respondent on account of some enmity between the two families and that the
prosecution has not adduced any acceptable evidence for holding the Respondent guilty
of the offence under Section 376 IPC and consequently acquitted the Respondent.
The reasons, assigned by the Trial Court for such a conclusion are based on its following
findings:
(1) The evidence of Prakash Javedkar, Elisabeth Javedkar, Tulsi, Shalesh singh and Shalendra Kaur
is highly tainted and as such no safe reliance can be placed on their testimony.
(2) The extra-judicial confession which the Respondent had retracted cannot be said to be free from
threat, coercion or promise.
(3) The extra-judicial confession as such seems to be unnatural and it is wholly the product of an
illegal advice and false fabrication.
(4) The evidence of the victim is not corroborated by other independent evidence.
(5) The First Information Report has been belatedly lodged and there is no reasonable explanation
for such a delay.

11. On being aggrieved by the judgment of the Trial Court acquitting the Respondent, the State
preferred an appeal before the High Court challenging the order of acquittal. It is seen from
the judgment of the High Court that the complainant who is the Appellant also filed a
revision in Criminal Revision No. 130/20 questioning the legality of the order of acquittal. On
the basis of this petition, another revision in criminal Revision No.132/22 was registered.
The High Court disposed of the State appeal and the two criminal revisions by a common
judgment, whereby it allowed the State appeal for the reasons assigned therein accepting the
oral testimony of the prosecution witnesses particularly of Elisabeth, lata, and Isha and
the extra- judicial confession made by the Respondent. On 14th January, 2019 separate orders
were passed in the criminal revisions and the High Court found the Respondent
guilty of the offence only under Section 354 IPC and sentenced him to pay a fine of
Rs. 3,000, in default to suffer simple imprisonment for 6 months and also directed a sum of
Rs. 2,000 out of the fine amount if collected to be paid over as compensation to Prakash
Javedkar.

Following are some of the findings of the High Court.

1. The High Court after observing, "there is no reason as to why a small innocent girl would
have laid such a serious charge against the Respondent, if it was not true", held that the
evidence of Isha has been materially corroborated by Lata Joshi.
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2. Referring to the confession of the Respondent, it has been held by the High Court, "Though
there can be penetration without rupture, the absence of any sign of injuries, negatives a
case of rape with a small girl".

3. Then referring the corroboration required to the extra judicial confession made by
the Respondent, the High Court has recorded the following observation:
"After realising that his misdeeds have been exposed and he can no longer hide himself, he
had no option but to confess. This was only option left when he was cornered by his own
neighbours and relations. There was no question of any coercion or inducement in presence of
his family members in his own house. The confession was nothing but by way of repentance for
the wrongs done to the young girls. It appears that the Respondent was a perverted person
and was satisfying his sexual urge by outraging modesty of young girls who fell easy prey to
his designs."

12. However, the father of the victim, feeling aggrieved by the judgment of the High Court
has filed an appeal before the Hon’ Supreme Court mainly on following grounds, namely,

(1) The High Court has erred in finding the Respondent guilty of a minor offence under Section
354 IPC when all the necessary ingredients to constitute an offence punishable under
Section 376 IPC have been satisfactorily established

(2) That the sentence of fine alone imposed by the High Court under Section 354 IPC
for this serious offence is grossly inadequate and does not commensurate with the
gravity of the offence committed by the Respondent.

(3). Concerned about the increasing offence of rape against the minor girls, Appellant has asked
for the death penalty for committing rape on minor girls below the age of 12 year.

14. The Hon’ble Supreme Court has fixed the first hearing of the above petition on 9 February
2019.
Note - The participants are required to make two additional issues pertaining to the above
petition.

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