Participant Code: R4

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

Before,
THE HON’BLE HIGH COURT OF INDIA

APPELLATE JURISDICTION U/S 374 (2) IN THE CODE OF CRIMINAL PROCEDURE, 1973

AGAINST THE ORDER OF THE TRIAL COURT

IN THE MATTER OF

BHASKAR, VIKRAM………………………………………………APPELLANTS

V.

STATE………………………………………………………………RESPONDENT

ON SUBMISSION TO THE HIGH COURT OF INDIA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

1
 TABLE OF CONTENTS

INDEX OF AUTHORITIES .............................................................................................. 3

LIST OF ABBREVIATIONS ............................................................................................ 5

STATEMENT OF JURISDICTION .................................................................................. 6

STATEMENT OF FACTS ................................................................................................. 7

ISSUES RAISED ............................................................................................................... 8

SUMMARY OF ARGUMENTS........................................................................................ 9

ARGUMENTS ADVANCED .......................................................................................... 10

[ISSUE I]: THE ACT COMMITTED BY BHASKAR IS MURDER NOT CULPABLE

HOMICIDE .......................................................................................................................... 10

[ISSUE II]: THE OFFENCE OF VOUYERISM HAS BEEN COMMITTED BY VIKRAM

.............................................................................................................................................. 11

[ISSUE III] THAT THE DEATH PENALTY IS PROPER AND JUSTIFIED ................. 13

PRAYER .......................................................................................................................... 15

2
 INDEX OF AUTHORITIES

Cases
Bachan Singh v State of Punjab, 1980 2 SCC 684. ................................................................. 14
Ganga Ram v State 1968 Cri LJ134. ....................................................................................... 11
Justice K. S. Puttaswamy & Anr. v Union of India & Ors., W.P. (C) No. 494 of 2012 .......... 13
K. Chinna Koteswara Rao v The State of A.P. & Ors., Criminal Petition No. 13944 of 2016.
.............................................................................................................................................. 14
KM Nanavati v State of Maharashtra AIR 1962 SC 605. ....................................................... 12
Lehna v State of Haryana, 2002 3 SCC 76. ............................................................................. 15
Macchi Singh v State of Punjab, 1983 3 SCC 470. ................................................................. 14
Maneka Gandhi v Union of India, AIR 1978 SC 567.............................................................. 15
R. Rajagopal v State of T.N., 1995 AIR 264 ............................................................................ 13
Shivappa Buddappa Kolkar v State of Karnataka AIR 2004 SC 5047. .................................. 12
Sreedharan v State of Kerala 1969 SCC Online Ker 46. ........................................................ 11
State of Haryana v Ram Singh AIR 2002 SC 620. .................................................................. 12
State v Nalini, 1999 5 SCC 253. .............................................................................................. 15
State v Shailesh, FIR No. 244/13 Unique I.D. No. 02404R0032112014. ............................... 14

Statutes

Indian Penal Code 1860 ........................................................................................................... 11

Indian Penal Code 1860, Section 299 ...................................................................................... 11
Indian Penal Code 1860, Section 300. ..................................................................................... 11
Indian Penal Code, Section 354C. ........................................................................................... 13
Information Technology Act, Section 66E .............................................................................. 14
The Information and Technology Act, 2000, Section 66E. ..................................................... 13

Treatises

2 STEPHEN, HISTORY OF ENGLISH CRIMINAL LAW................................................... 12

HALL & JEROME, GENERAL PRINCIPLES OF CRIMINAL LAW 112 (2nd ed.) ............ 12
HUDA S., PRINCIPLES OF LAW AND CRIMES IN BRITISH INDIA ............................. 11

Reports

3
RV Kelkar, ‘Provocation as a defence in Indian Penal Code.’ [1963] PL 351........................ 12
M. Hirschfeld, Sexual Anomalies and Perversions: Physical and Psychological Development,
Diagnosis and Treatment (Encyclopaedic Press, London 1966)..............................................

Articles

Divij Joshi, India’s Criminal Law Amendment To Include Cyber Stalking, Harassment And
Voyeurism – CIS India, available at <https://www.medianama.com/2013/04/223-criminal-
law-amendment-to-include-cyber-stalking-harassment-and-voyeurism-cis-india/>. .......... 12
Shonee Kapoor, IPC 354C | Voyeurism | Punishment for Voyeurism, available at
<https://www.shoneekapoor.com/ipc-354c-voyeurism/>. ................................................... 13

Books

2 STEPHEN, HISTORY OF ENGLISH CRIMINAL LAW................................................... 12

HALL & JEROME, GENERAL PRINCIPLES OF CRIMINAL LAW 112 (2nd ed.). ........... 12
HUDA S., PRINCIPLES OF LAW AND CRIMES IN BRITISH INDIA 172. ..................... 11
SALMOND, JURISPRUDENCE 366 (10th ed.). .................................................................... 11

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 LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

& And

§ Section

AIR All India Reporter

Anr. Another

Art. Article

Cr.P.C. Code of Criminal Procedure

Cri LJ Criminal Law Journal

DW Defence Witness

edn. Edition

HC High Court

Hon’ble Honorable

PW Prosecution Witness

r/w Read with

SC Supreme Court

SCC Supreme Court Cases

u/s Under section

V Versus

IPC Indian Penal Code

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 STATEMENT OF JURISDICTION

The respondent humbly submit this memorandum for the appeal filed before the Hon’ble High
Court, which has been posted for final. The appeal invokes appellate jurisdiction of this
Hon’ble Appellate High Court under Section 374 (2) in The Code of Criminal Procedure, 1973.

THIS MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND ARGUMENTS FOR THE
RESPONDENT IN THE GIVEN CASE.

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 STATEMENT OF FACTS

1. Bhaskar and Aditi has been childhood friends. They both have been selected to prestigious
All India Engineering Course and they have taken admission to Prestigious Ram Lal
College of Engineering.
2. They encounter Vikram Motwane who is spoiled brat of college who philanders with
college girls and is addicted to drugs, but befriends both due to ulterior motives. Aditi and
Bhaskar are committed to each other and are in a ‘live in relationship. In the mid semester
exam Aditi get good grades but Bhaskar fails to secure good grades due to which his parents
came to know about the live-in and separated them. Bhaskar develops a grudge against
Aditi.
3. Vikram gets a video clip of private moments of them both and starts blackmailing Aditi on
the pretext of helping him in End Semester examination. On 1st July, 2018, a scream is
heard by Sayali of her roommate Aditi on terrace. When she follows the voice on the
terrace, she finds that body of Aditi is lying in the blood pool and Bhaskar is standing with
a Vegetable Knife
4. On 2nd July 2018 Bhaskar regains his consciousness and starts crying bitterly. He says that
he went to meet Aditi on the fateful day and she was not in room and when he was about
to return, he heard the scream of Aditi. He found Aditi struggling on terrace and seeing his
gruesome state he took out the knife from her body.
5. The car of Vikram was standing in parking area of sunrise towers, but upon investigation
he told that he went for his birthday party. Aditi had developed an intimate relationship
with Vishal about which Bhaskar was not happy.
6. Vishal admitted his love relationship with Aditi and said that Bhaskar fought with him on
several occasions on the issue. On 30th June a big fight happened in college canteen between
Vishal and Bhaskar and Bhaskar has said that he will kill Aditi.
7. Bhaskar on the DNA sample made a surprising confession to Police that he found that
Vishal was trying to force Aditi for sexual intercourse which was being resisted by Aditi.
Being provoked he rushed to Aditi’s flat and collected the knife and gave a severe blow,
but Aditi came in direct contact of the blow and sustained severe injuries. The Trial Court
Convicted Bhaskar for Murder and punished him with death penalty and Vishal for 10 years
imprisonment of rape and Vikram for Voyeurism and Intimidation. Conviction and death
penalty of Bhaskar and Vikram has been challenged in Appeal before High Court.

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 ISSUES RAISED

[ISSUE I]: THE ACT COMMITTED BY BHASKAR IS MURDER NOT CULPABLE

HOMICIDE.

[ISSUE II]: THE OFFENCE OF VOUYERISM HAS BEEN COMMITTED BY

VIKRAM.

[ISSUE III]: THAT THE DEATH PENALTY IS PROPER AND JUSTIFIED

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 SUMMARY OF ARGUMENTS
I. THAT THE ACT COMMITTED BY BHASKAR IS CULPABLE HOMICIDE
AMOUNTING TO MURDER.

It is humbly submitted before this Hon’ble court that the act of Bhaskar is culpable homicide
amounting to murder. The responsibility in crimes must depend on the doing of a “willed” or
“voluntary act” and a particular intent behind that act. The act committed by Bhaskar is of a
grave nature. He intended to murder Aditi. Bhaskar cannot take the defence of grave and
sudden provocation. He also did not lose his self-control as a reasonable man would have in
these circumstances. Thus, Bhaskar is guilty of murder.

II. THAT THE OFFENCE OF VOYEURISM HAS BEEN COMMITTED BY

VIKRAM.

It is humbly submitted before this Hon’ble court that Vikram has committed the offence of
voyeurism. Vikram had procured the video clip of the private acts of Aditi and Bhaskar and
those are defined under Section 354C of the IPC. Moreover, Vikram has also breached their
right to privacy that is a fundamental right. Vikram shall be held liable under Section 66E of
the Information and Technology Act, 2000. For the purpose of offence of voyeurism, there
are two basic ingredients that need to be fulfilled. In the present case, the video had Aditi, and
the video was captured without her consent. Thus, Vikram is liable. The act of Vikram had
outraged the modesty of Aditi and thus he shall be liable under Section 509 of the Indian Penal
Code.

III. THAT THE DEATH PENALTY IS PROPER AND JUSTIFIED

It is humbly submitted before the Hon’ble High Court that the offence of crime is committed by

Bhaskar and is proved beyond reasonable doubt. Thus he is made liable for capital punishment by the

trial court which is correct in the present facts and circumstances.

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 ARGUMENTS ADVANCED
[ISSUE I]: THE ACT COMMITTED BY BHASKAR IS MURDER NOT CULPABLE

HOMICIDE.

The act of Culpable Homicide has been defined as, “Whoever causes death by doing an act
with the intention of causing death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by such act to cause death, commits
the offence of culpable homicide.”1

Except in the cases hereinafter excepted, culpable homicide is murder—

(i) If the act by which the death is caused is done with the intention of causing death, or
(ii) If it is done with the intention of causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom the harm is caused, or
(iii) If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death, or
(iv) If the person committing the act knows that it is so imminently dangerous that it must,
in all probability, cause death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of causing death or such
injury as aforesaid.2

The responsibility in crimes must depend on the doing of a “willed” or “voluntary act” and a
particular intent behind that act.3 When one acts to produce a particular result or consequence,
he is said to do that act with that intention. If the consequence is not looked for the act may be
voluntary but not intentional4 and for any criminal liability there must be “voluntary act”.

However, intention is something, which can be gathered and inferred from the action of the
person, and surrounding circumstances such as nature of the attack, 5 the nature of the weapon
used,6 the nature of injuries caused to the deceased and so on. The connection between the act
and the death must not be too- remote and it must not be obscure. It is a sound principle of law
to hold an accused liable, when it is only after the evidence produced is beyond reasonable

1
Indian Penal Code 1860, Section 299.
2
Indian Penal Code 1860, Section 300.
3
SALMOND, JURISPRUDENCE 366 (10th ed.).
4
HUDA S., PRINCIPLES OF LAW AND CRIMES IN BRITISH INDIA 172.
5
Sreedharan v State of Kerala 1969 SCC Online Ker 46.
6
Ganga Ram v State 1968 CrLJ 134.

10
doubt. Further postmortem report is in itself not a substantive piece of evidence,7 but this case
has been largely dependent on it.

Intention is necessary to attract this section. In a case where the accused in the state of this
quarrel, suddenly picked up the axe lying on the cart and struck a blow on the head of the victim
causing fracture of the skull bone. He spoke to the injured victim to get up and smoke his beedi.
The Court said that these circumstances showed that the accused had no intention to cause
death.8

Intention is the purpose or design with which an act is done. It is the foreknowledge of the act,
coupled with the desire of it. In intention, the actor chooses, decides, resolves to bring a
prescribed harm into being, he consciously employs means to that end.9 Intention is also said
to be “an operation of the will directing an overt act; motive is the feeling which prompts the
operation of the will, the ulterior object of the person willing.”10.

The suddenness of provocation is to be ascertained not according to what the offender feels to
be unaccepted or sudden, but according to the test of reasonable man.11 The test of ‘grave and
sudden provocation’ is whether a reasonable man, belonging to the same class of society as the
accused, placed in the situation in which accused was placed, would be provoked as to lose his
self–control. In addition, the mental background created by the previous acts of the victim may
be taken into consideration in ascertaining whether the subsequent act caused grave and sudden
provocation.12

[ISSUE II]: THE OFFENCE OF VOUYERISM HAS BEEN COMMITTED BY

VIKRAM

Voyeurism blatantly defies this reasonable expectation of individuals infringing privacy and personal
dignity.13 Voyeurism is the sexual interest in or practice of spying on people engaged in intimate

7
State of Haryana v Ram Singh AIR 2002 SC 620.
8
Shivappa Buddappa Kolkar v State of Karnataka AIR 2004 SC 5047.
9
HALL & JEROME, GENERAL PRINCIPLES OF CRIMINAL LAW 112 (2 nd ed.).
10
2 STEPHEN, HISTORY OF ENGLISH CRIMINAL LAW.
11
RV Kelkar, ‘Provocation as a defence in Indian Penal Code.’ [1963] PL 351.
12
KM Nanavati v State of Maharashtra AIR 1962 SC 605.
13
Divij Joshi, India’s Criminal Law Amendment To Include Cyber Stalking, Harassment And Voyeurism – CIS
India, available at <https://www.medianama.com/2013/04/223-criminal-law-amendment-to-include-cyber-
stalking-harassment-and-voyeurism-cis-india/>.

11
behaviors such as undressing, sexual activity, or other actions usually considered to be of private
nature.14 The offence of voyeurism has been defined in Section 354 of the Indian Penal Code.15

Voyeurism is an offence when a man has seen or captured the image of a female engaging in a private
act where under circumstances the female does not want to be observed.16 In the present facts, Vikram
has procured a video clip of private acts of Aditi and Bhaskar and starts blackmailing Aditi for helping
him.17

The appellants humbly submit that Vikram has the video of the private moments of Aditi and Bhaskar.
It is being contended that the video had contents which can be classified as a “private act”. A “private
act” for the purposes of Section 35418 is an act where a woman is doing some activity in private like
feeding a baby, taking a bath, urinating, engaging in sexual activities, etc.19 According to the Black’s
Law Dictionary20, private acts are those which relate to particular persons which operate only upon
specified individuals or their private concerns. The video contained private and intimate moments of
Aditi and Bhaskar.

Vikram has committed the offence of voyeurism and hence is liable to the punishment specified under
the Act.21

In a recent judgment22, right to privacy has been declared as a fundamental right by the apex court. The
Indian Supreme Court has upheld the right to privacy of the person as the right to be left alone, and has
read it into Article 21 of the Constitution which guarantees the right to life, which it did in the
famed Auto Shankar case.23 The punishment for violation of privacy has been specified in Section 66E
of the IT Act, 2000.24

14
M. Hirschfeld, Sexual Anomalies and Perversions: Physical and Psychological Development, Diagnosis and
Treatment (Encyclopaedic Press, London 1966).
15
Indian Penal Code, Section 354.
16
Indian Penal Code, Section 354C.
17
Moot Proposition 6.
18
Indian Penal Code, Section 354.
19
Shonee Kapoor, IPC 354C | Voyeurism | Punishment for Voyeurism, available at
<https://www.shoneekapoor.com/ipc-354c-voyeurism/>.
20
Private Act, Black’s Law Dictionary, p. 26.
21
Indian Penal Code, Section 354C.
22
Justice K. S. Puttaswamy & Anr. v Union of India & Ors., W.P. (C) No. 494 of 2012.
23
R. Rajagopal v State of T.N., 1995 AIR 264.
24
The Information and Technology Act, 2000, Section 66E.

12
The law reads as a person who captures the image of a private area of a person intentionally without
their consent shall be punished with imprisonment or fine.25 In a case26 before the Delhi district court,
the woman was in the washroom where she thought she would not be visible to anybody, a man was
found peeping inside the washroom. He was held liable by the Delhi district court. In a case 27 before
the High Court of Hyderabad, the accused were held liable of voyeurism even though they did not
publish or transmit the information.

Vikram had the clip of the private moments of Aditi and Bhaskar. He was deliberately blackmailing
Aditi about uploading that video on social media. He is to be held liable for his acts.

[ISSUE III] THAT THE DEATH PENALTY IS PROPER AND JUSTIFIED

It is humbly submitted before the court that the punishment of death penalty is proper in the case of
Bhaskar. It is fairly established that the punishment of death penalty is only to be given in the rarest of
rare cases. In this case, the offence of culpable homicide was committed by Bhaskar amounting to a
high degree murder. Death penalty is a just punishment for the offence committed in this case because
if the plain reading of the series of cases in which death penalty is given is done, it can be clearly
observed that all the cases have been of first or second degree murders and the acts committed in those
cases were of high degree of intention to cause death, in which case a punishment as severe as death
penalty is justified.
In the case of Bachan Singh v. State of Punjab28 Supreme Court (SC) held that capital punishment must
be sentenced in brutal murder cases or in the most heinous crimes where doctrine of rarest of rare case
applies. According to the moot problem, Bhaskar got hold of the knife and rushed to the spot but Aditi
came in direct contact with the knife and got severely injured. It is clearly evident that the act committed
by Bhaskar would under any circumstances be covered under the most heinous crimes because the
degree of intention is not grave or direct enough to be accounted as murder. In the present case, Bhaskar
has committed the Act of murder, and that too of Aditi who loved him unconditionally. They were
together for so many years and Bhaskar not only betrayed her trust and relationship but also her
friendship of so many years. This was a grave act of violence and can be attributed under Rarest of the
care cases. and thus death penalty can be given to Bhaskar.
In the case of Machhi Singh v. State of Punjab29 the test of rarest of rare case is explained by the
following two principles:

25
The Information Technology Act, Section 66E: Punishment for violation of privacy, available at
<https://www.itlaw.in/section-66e-punishment-for-violation-of-privacy/>
26
State v Shailesh, FIR No. 244/13 Unique I.D. No. 02404R0032112014.
27
K. Chinna Koteswara Rao v The State of A.P. & Ors., Criminal Petition No. 13944 of 2016.
28
Bachan Singh v State of Punjab, 1980 2 SCC 684.
29
Macchi Singh v State of Punjab, 1983 3 SCC 470.

13
 1. Is there something uncommon about the crime which renders sentence of life imprisonment
inadequate and call for a death sentence?
2. Are the circumstances of the crime such that there is no alternative but to impose death
sentence?”
In this case the facts were of “extreme brutality” which is of extreme significance regarding giving
death penalty. In the given moot problem, there is a stance of extreme brutality as the incident had an
eventual grave negative intention and hence, death penalty is proper for this case.

In the case of State v. Nalini30 the Supreme Court observed that both, the crime and the criminal and
also the following circumstances should be considered for the rarest of the rare cases;
1. If the accused is young or old, the death sentence should be avoided.
2. The criminal acts done should constitute a continuing threat to the society.
3. That the accused acted under the duress or domination of another person.
The act committed by Bhaskar can be designated as a continuing threat for the society and so it
withstands the principle of “Rarest of the rare case”.
In the Lehna case31 the court held that death penalty can be awarded in “Rarest of the rare cases” when
collective conscience of the communities so shocked that it will expect the holders of the judicial power
center to inflict death penalty irrespective of their personal opinion regarding desirability or otherwise
of retaining the death penalty. So, the acts committed by Bhaskar can be said that it shocked the
conscience of the community, so the acts of Bhaskar attract death penalty.
In Maenka Gandhi v. UOI32, the apex court states that awarding death penalty or taking away of life
must be just, fair and reasonable. Every accused has right to a fair trial.
Natural and Procedural law states as follows:
1. Death penalty should be awarded only in special case.
2. Death Penalty shall be treated as exceptional punishment which will only be imposed on
special reason.

30
State v Nalini, 1999 5 SCC 253.
31
Lehna v State of Haryana, 2002 3 SCC 76.
32
Maneka Gandhi v Union of India, AIR 1978 SC 567.

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 PRAYER
Wherefore, in light of the facts of the case, issues raised, arguments advanced and
authorities cited, the Respondent respectfully requests this Court to adjudge and declare
that:

I. That Bhaskar is liable for murder of Aditi.

II. That the offence of voyeurism has been committed by Vikram.

III. That the death penalty imposed upon Bhaskar is justified and reasonable

And may pass any other order in favor of the respondent that it may deem fit in the interest of
justice, equity and good conscience.

SD/-
Counsel for Respondent

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