IN THE HON’BLE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2018

SURESH AND OTHERS …………PETITIONER

Versus

STATE OF RAJASTHAN…………RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

MEMORIAL ON BEHALF OF THE APPEALENT

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TABLE OF CONTENTS
LIST OF ABBREVIATIONS………………………………………………………………..
INDEX OF AUTHORITIES…………………………………………………………………
STATEMENT OF JURISDICTION………………………………………………………...
STATEMENT OF FACTS……………………………………………………………….....
ISSUES RAISED……………………………………………………………………………
SUMMARY OF ARGUMENTS…………………………………………………………...
ARGUMENTS ADVANCED…………………………………………………………........
1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS
COURT IS MAINTAINABLE OR NOT………………………………………………
2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT TO THE ACCUSED
IS CONSTITUTIONALLY VALID OR NOT…………………………………………
3. WHETHER THE LEVY OF HEAVY COMPENSATION IS
CONSTITUTIONALLY VALID OR NOT…………………………………………...

PRAYER…………………………………………………………………………………

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LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court
Bom. LR Bombay Law Reporter
Cal Calcutta High Court
CBI Central Bureau of Investigation
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del. Delhi
DLR Delhi Law Review
DLT Delhi Law Times
Edn. Edition
Guj. Gujarat
JJA Juvenile Justice Act
ILR Indian Law Reports
IPC Indian Penal Code
IC Indian Cases
JT Judgment Today
Mad Madras
NCRB National Crime Records Bureau
Ori Orissa
P&H Punjab and Haryana High Court
Pat Patna
Raj Rajasthan
RCR Recent Criminal Reports
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter

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Sec. Section
U.O.I. Union Of India
V. Versus

INDEX OF AUTHORITIES
CASES

BOOKS
★ Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol I,
Bharat Law House, Delhi, 27th Edn. 2013.
★ Ratanlal & Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol
II, Bharat Law House, Delhi, 27th Edn. 2013.
★ K I Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12th Edn. 2014.
★ Dr. (Sir) Hari Singh Gour, Penal Law of India, Law Publishers (India) Pvt. Ltd., 11th
Edn. 2014.
★ J C Smith, Smith and Hogan Criminal Law – Cases and Materials, LexisNexis
Butterworths, 8th Edn. 2002.
★ Basu’s Indian Penal Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn. 2011.
Criminal Manual, Universal Law Publishing Company, 2015.
★ Dr. Karunakaran Mathiharan, Modi’s Medical Jurisprudence and Toxicology,
LexisNexis Butterworths, 23rd Edn. 2010.
★ Maharukh Adenwalla, Child Protection and Juvenile Justice System, ChildLine India
Foundation, Mumbai, 10th Edn. 2008.

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★ Ved Kumari, Juvenile Justice System in India, Oxford University Press, New Delhi,
2004. S.K.A Naqvi & Sharat Tripathi, R. N. Choudhry’s Law Relating to Juvenile
Justice in India, Orient Publishing Company, New Delhi, 3rd Edn. 2012.

STATUTES
★ Indian Penal Code, 1860.
★ The Juvenile Justice (Care and Protection of Children) Act. 2015.
★ The Juvenile Justice (Care and Protection of Children) Rules, 2007.
★ The Constitution of India, 1949.

LEGAL DATABASES
★ Manupatra
★ SCC Online
★ Judis
★ Indian Kanoon

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STATEMENT OF JURISDICTION
The Petitioners have approached the Hon'ble Supreme Court of India under Article 136 of the
Constitution of India. The Respondents reserve the right to contest the jurisdiction of this
Hon’ble Court. The article 136 of Constitution of India reads as hereunder:

“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

(1) Notwithstanding Anything In This Chapter, The Supreme Court May, In Its Discretion,
Grant Special Leave To Appeal From Any Judgment, Decree, Determination, Sentence Or Order
In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The Territory Of India.

(2) Nothing In Clause (1) Shall Apply To Any Judgment, Determination, Sentence Or Order
Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law Relating To The
Armed Forces.”

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SYNOPSIS OF FACTS

For the sake of brevity and convenience of the Hon'ble Court the facts of the present case are
summarized as follows:
THE INCIDENT

Ms. Gyanwati, aged 20 years, B.com student of Jaipur City. she had a close friend Suresh,son of
Ex-CM,studying im the same college in M.com. On the night of 31 december, when she was
going home from new year party, Suresh along with Mahesh and Dinesh (son of DIG) abducted
her on Gun point and forcefully carried her to distant and lonely place having 1 room only inside
the city and there Gyanesh and Virender were already waiting, They carried her into the room
where all five drank scotch whisky and make her forcibly naked and tied her with rope. all five
raped her barbarically then 4 of them left the place leaving Virender to watch her and tied the
victim with iron chains.On 1-01-18, Suresh came along with brijesh, who was handsome brilliant
student and son of Millionaire, and Suresh offered Victim to Brijesh for intercourse and he
accepted then they both again commited Rape against her. The victim became unconscious and
her uterus was ruptured, with bruises on the breast and other parts of the body.
On 2-01-18, Mahesh called Manmohan, Father of Gyanwati and informed him that his daughter
has been kidnapped and raped and if he wants her release to a safe place, he should come to the
specified place along with a ransom of 5 lacs, else she would be killed and her body would be
thrown in a pond.

FIR

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The complainant was carried to the Chaksu police station and FIR was lodged with No. 10 dated
03.01.2018 and case under Sec. 376, 364, 364A/34 IPC r/w Sec 25/27 of the Arms Act.

JUDGEMENT BY LD. SESSIONS COURT

JUDGEMENT BY LD. HIGH COURT

APPEAL TO THE SUPREME COURT

Being aggrieved by the aforesaid orders, the complainant filed an appeal before the hon’ble
supreme court and the court issued notice pertaining to constitutional validity of life
imprisonment and levy of heavy compensation and fine.

ISSUES RAISED
1. . WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS
COURT IS MAINTAINABLE OR NOT.

2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT SENTENCED BY

THE TRIAL COURT IS CONSTITUTIONALLY VALID OR NOT.

3. WHETHER THE LEVY OF DRACONIAN COMPENSATION IS

CONSTITUTIONALLY VALID OR NOT.

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SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS COURT

IS MAINTAINABLE OR NOT.
It is most respectfully submitted before the Honorable Supreme Court of India that the instant
petition is not maintainable as Special Leave cannot be granted when substantial justice has been
done and no exceptional or special circumstances exist for case to be maintainable. It is
contended by the respondents that no substantial question of law is involved in the present case
and the interference is based on pure question of fact which is entitled to be dismissed. This court
had laid down the test which says if the general principles to be applied in determining the
question of those principles the question would not be a substantial question of law. In the
present case the appellants have been unsuccessful to show any exceptional and special
circumstances which exist. The appellants are convicted of a heinous offence and this petition
filed by the appellants is a mere vexatious attempt by them. Hence, the petition is not
maintainable.

2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT SENTENCED BY THE

TRIAL COURT IS CONSTITUTIONALLY VALID OR NOT.

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Reducing the sentence of life imprisonment has been the main ingredient of this issue. It is to be
humbly submitted that the punishment of life Imprisonment sentenced to the accused under
section 376 CrPC and section 53 IPC is completely valid. The accused have committed a heinous
crime of ‘abduction’ and ‘gang rape’ of a young woman that falls under the ambit of rarest of the
rare case doctrine and requires to be treated under the retributive theory. The accused did the in
full conscience and were aware of the consequences of the act.

Therefore, the appellant is liable for the crime of abduction and gang rape under rarest of the rare
case and must be punished with life imprisonment till the end of the life of the accused .

3. WHETHER THE LEVY OF DRACONIAN COMPENSATION IS

CONSTITUTIONALLY VALID OR NOT.
It is contended by the respondents that the proceedings of the Trail Court in the present case
were justified and lawful. There was no irregularity of proceeding in the levy of compensation in
the present case. The Trial Court found accused guilty of the offences in light of the
circumstantial evidences which were found against them and awarded the compensation of 50
lakhs. It is also in the ambit of criminal court to award the compensation to the victim according
to the nature and gravity of crime according to sec. 357 and 357A of CrPC. It’s further
contended before this Hon’ble Court that the orders passed by the lower courts is well justified
and there is no need to waste the time of the court in such vexatious contentions.

ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT.
It is most respectfully submitted before the Honourable Supreme Court of India that the instant
petition is not maintainable as Special Leave cannot be granted when substantial justice has been
done and no exceptional or special circumstances exist for case to be maintainable. In the present
case no exceptional and special circumstances exist and substantial justice has already been

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done. It is contended by the respondents that no substantial question of law is involved in the
present case and the interference is based on pure question of fact which is entitled to be
dismissed. This court had laid down the test which says if the general principles to be applied in
determining the question of those principles the question would not be a substantial question of
law. In the present case the appellants have been unsuccessful to show any exceptional and
special circumstances which exist. The appellants are convicted of a heinous offence and this
petition filed by the appellants is a mere vexatious attempt by them. Hence, the petition is not
maintainable before this Hon’ble court.

1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND

SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE.

The petitioner contends that in the present case no exceptional and special circumstances exist
and substantial justice has already been done. The appellant must show that exceptional and
special circumstances exists and that if there is no interference, substantial and grave injustice
will be done to the appellant1. Only then the court would exercise its overriding powers under
Art. 136.2 Special leave will not be granted when there is no failure of justice or when substantial
justice is done, though the decision suffers from some legal errors. The court has emphasized in
Pritam Singh v. The State3 that, “ The only uniform. standard which in our opinion can be laid
down in the circumstances in that Court should grant special leave to appeal in those cases where
special circumstances are shown to exist”. The court shall interfere with the decision under
challenge only if the extraordinary flaws or grave injustice or other recognized grounds are made
out.4 It was also observed that, it is not possible to define the limitations on the exercise of the
discretionary jurisdiction vested in this Court under Art. 136. It being an exceptional and
overriding power, naturally, has to be exercised sparingly and with caution and only in special
and extraordinary situations.5 Article 136 does not give a right to a party to appeal to the SC
rather it confers a wide discretionary power on the SC to interfere in suitable cases. 6 In the

1 Hem Raj v. The State of Ajmer, 1954 SCR 380.

2 M.P Jain, Indian Constitutional Law, LexisNexis, Nagpur, 7th Edn. 2014.
3 AIR 1950 SC 169.
4 Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 223
5 Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955) AIR 65 (SC
6 P.S.R. Sadhanantham v. Arunachalm & Ors. , (1980) 3 SCC 141.

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present case the appellants have been unsuccessful to show any exceptional and special
circumstances which exist. The appellants are convicted of a heinous offence and this petition
filed by the appellants is a mere vexatious attempt by them. Hence, the petition is liable to be
dismissed.

1.1.1 NO IRREGULARITY OF PROCEDURE OR VIOLATION OF

PRINCIPLE OF NATURAL JUSTICE HAS BEEN DONE.

In plethora of cases, it has been held that except that where there has been an illegality or an
irregularity of procedure or a violation of principle of natural justice resulting in the absence of a
fair trial or gross miscarriage of justice, the SC does not permit a third review of evidence with
regard to question of fact in cases in which two courts of fact have appreciated and assessed the
evidence with regard to such questions.7 It is contended that this court is not bound to go into the
merits and even if it were to do so, and declare the law or point out the error, still it may not
interfere if the justice of the case on facts doesn’t require interference or if it feels that the relief
could be molded in a different fashion.8

1.2 NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE.

It is contended by the respondents that no substantial question of law is involved in the present
case and the interference is based on pure question of fact which is entitled to be dismissed. This
court had laid down the test which says if the general principles to be applied in determining the
question of those principles the question would not be a substantial question of law. It might
involve question of law but not ‘substantial’ question of law. The present case does not involve
such ‘substantial’ question of law. In Jamshed Hormsuji Wadia v. Board of Trustees, 9 Port of
Mumbai the court emphasized that, “the very conferment of the discretionary power defies any
attempt at exhaustive definition of power. The power is permitted to be invoked not in a routine
fashion but in very exceptional circumstances as when a question of law of general public

7Union of India v. Rajeswari & Co., (1986) AIR 1748 (SC).

8 Raghunath G. Pauhale v. Chagan Lal Sundarji & Co., (1999) 8 SCC 1 (SC).
9 AIR 2004 SC 1815.

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importance arises or a decision sought to be impugned before the Supreme Court shocks the
conscience. This overriding and exceptional power has been vested in the Supreme Court to be
exercised sparingly and only in the furtherance of cause of justice in the Supreme Court in
exceptional cases only when special circumstances are shown to exist”.

2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT SENTENCED BY

THE TRIAL COURT IS CONSTITUTIONALLY VALID OR NOT.
“To call woman the weaker sex is a libel; it is man's injustice to woman. If by strength is
meant brute strength, then, indeed, is woman less brute than man. If by strength is meant
moral power, then woman is immeasurably man's superior. Has she not greater intuition,
is she not more self-sacrificing, has she not greater powers of endurance, has she not
greater courage? Without her, man could not be. If nonviolence is the law of our being,
the future is with woman. Who can make a more effective appeal to the heart than
woman?"----Mahatma Gandhi.

1) The act of the accused of abducting the victim and gang-raping her for 2 consecutive
days under section 372 and 376D comes under the ‘rarest of the rare’ case doctrine. It
is significant to mention that there is no hard and fast criterion for rarest of the rare
case doctrine and special circumstances have to be taken into consideration. The fact
that the young girl of 20 years who was a college student was raped by 5 men that led
to permanent injuries , both mental and physical , keeping in mind that the victim
would never be able to conceive in future should be fulfils all the criterion of the
doctrine of ‘rarest of the rare’ case. The punishment of life imprisonment is a liberal
punishment for the accused who have committed such a heinous crime of gang rape
with a woman and should have been punished with death penalty.

In Ravji v State of Rajasthan, a Division Bench observed that 'it is the nature and gravity of the
crime but not the criminal, which are germane for consideration of appropriate punishment in
a criminal trial'. A dispassionate analysis of criminological jurisprudence would reveal that

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capital punishment is justified only in extreme cases in which a high degree of culpability is
involved causing grave danger to society.

In a judgment given by the Supreme Court it was stated that, “This is yet another opportunity to
inform the subordinate Courts and the High Courts that despite stringent provisions for rape
under Section 376 IPC, many Courts in the past have taken a softer view while awarding
sentence for such a heinous crime. This Court has in the past noticed that few subordinate and
High Courts have reduced the sentence of the accused to the period already undergone to suffice
as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits
stark insensitivity to the need for proportionate punishments to be imposed in such cases.”

2) The act of the accused fall under the retributive theory.

Though an eye for an eye, a tooth for a tooth and death for death is not true in civilized society
but it is equally true that when a man becomes beast and a menace to society he can be deprived
of his life according to the procedure established by law. The heinous crime of rape committed
by the accused to outrage the modesty of a woman leaving her in a state where she cannot
conceive in future should be dealt with a harsh punishment of life imprisonment till the end of
life of the accused and not be dealt leniently. The punishment of the offence should be held with
proportionality to the crime. Retributive punishment has to be proportional to the degree of
desert. The more the desert, the more the punishment should be.

3) According to article 22 of Universal Declaration of human rights,

“Everyone, as a member of society, has the right to social security and is entitled to realization,
through national effort and international cooperation and in accordance with the organization and
resources of each State, of the economic, social and cultural rights indispensable for his dignity
and the free development of his personality.”

The accused in this case not only left the victim with permanent physical injury but a mental
trauma for life, destroying her self-esteem, personality and integrity in society. The right of each
citizen of the country to be secured and safe has been violated here. The accused were major at

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the time of committing the offence and had full knowledge of their act and its consequences.
They did not only rape her for 2 consecutive days but also asked for ransom from her family.
The punishment of life imprisonment is the justified punishment sentenced by the trial court as it
would not only do justice to the victim whose entire life has been destroyed but would also set an
example for the rest of the society in such regards.

4) Article 21 of the Indian Constitution talks about The right to life and liberty, and that
no person shall be deprived of his right except according to the procedure established
by law. It means that even if a person is sentenced to life imprisonment as a
punishment for a gruesome offence, it is just and fair. In Justice
K.S.Puttaswamy(Retd) v. Union Of India And Ors , it was observed that the sexual
autonomy is a part of right to privacy. The word “Life” under Article 21 means a
quality of life which recognizes adequate standard of living. In the present case,
actions of Javed created a concavity in the dignity and bodily integrity of Shazia
which is the very essence of Art. 21 of the Constitution of India.10

3. WHETHER THE LEVY OF DRACONIAN COMPENSATION IS

CONSTITUTIONALLY VALID OR NOT.
It is humbly submitted before this Hon’ble court that trial court is justified in directing
the accused to compensate the victim and the levy of compensation is nothing with
respect to the loss and agony suffered by the victim. Victim has suffered mental and
physical trauma and her and her family image and reputation is tarnished because of this
heinous act(rape) of accused as in India rape victim are treated as it is their fault that they
are rapeed and they are degraded for this.
It is purely within the discretion of the criminal court to order or not to order payment of
compensation( law commission report) and while awarding the compensation court
should take in account the the nature of crime, injury sufferrd, and justness of claim for
compensation, the capacity of accused to pay and other relevant circumstances in fixing
the amount of fine or compensation(sawrna singh case) and in the present matter

10 (2017) 10 SCC 1.

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beforehand court is justified in ordering the accused to compensate the victim by going
through all the witnesses and looking at the nature of crime they committed. Accused
were conscious and were fully aware about the graveness of their act and its result and
their act of confining the victim for nearly two days prove this. It was not at the spur of
moment but a fully premeditated act.
To buttress my contention inference is drawn at the Sec. 357 of the code of criminal
procedure, 1973( Here in after CrPC ) which says:
“ Order to pay compensation.
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death)
of which fine forms a part, the Court may, when passing judgment, order the whole or
any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person in a
Civil Court;
(c) when any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of such an offence, in paying compensation to
the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover
damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in disposing of, stolen property knowing or
having reason to believe the same to be stolen, in compensating any bona fide purchaser of
such property for the loss of the same if such property is restored to the possession of the
person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made
before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented,
before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when
passing judgment, order the accused person to pay, by way of compensation, such amount as

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may be specified in the order to the person who has suffered any loss or injury by reason of the
act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court
or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same
matter, the Court shall take into account any sum paid or recovered as compensation under
this section.”

.
.
Order of court to award compensation is not ancillary but in addition thereto. The power
to award compensation is to ensure the victim that she is not forgotten in the criminal
justice system. Exercise of this power is recommended liberally so as to meet the end of
justice in a better way.(hari krishna v. sukhbir singh). In case of SUGANTI SURESH
KUMAR V. JAGDESHAN, 2002(44) A.C.C.654; Sc upheld that dictum of sukhhbir case
is valid and binding on all court. In addition to conviction court may order the accused to
pay some amount to victim by way of compensation(MAHESHWAR DATTATRAYA
KALE V. ATUL WASUDEO DIVEKAR 2006). So, there arise no question of
constitutional validity as everything is followed according to procedure established by
law and justice is done.
In the Indian society of the 21st century, many people want their brides to be “pure”
virgins. A victim of rape in such cases not only loses out on the opportunity to marry into
an otherwise decent family but is also discriminated upon for no fault of hers. It is often
said that the most prised possession of a woman is her dignity and respect. In the society
where people still have an old mindset, the life of such a woman only degrades. It only
makes sense to compensate such a victim well apart from punishing the accused.
A women’s right to compensation originates from Article 21 of the Indian Constitution
which talks about right to life and personal liberty. The Supreme Court held that a woman
can be compensated even in the middle stages of the trial as well as at the end of the trial.
The Supreme Court even suggested the establishment of criminal injuries compensation

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Board under Article 38(1) of the Constitution of India whose function would have been to
compensate such victims and provide them relief. However, no such board has been
formed.[Deccan Herald, ‘Victims in criminal case be awarded compensation: SC’
(deccanherald.com 2013) <http://www.deccanherald.com/content/332311/victims-
criminal-case-awarded-compensation.html> accessed 14 November 13.]
Victim has to suffer from many hardship as she is not able to conceive in the future. Act
of the accused was so brutal that her uterus is ruptured and she is physically and mentally
tortured so in order to provide her meentainences and to support her compensation is only
a single way and the trial court as justified in awarding compensation.
No compensation can be adequate nor can it be of any respite to the victim. The
humiliation or the reputation that is sunfeed out and the mental trauma victim suffered
due to commission of such heinous crime(rape) can not be compensated but then
monetary compensation then can at least provide some solace.
Victim compensation scheme was added in the 2009, in CrPC by the insertion of new
sec. 357A which cast a responsibility on the state govt to formulate scheme for the
compensation to the victim of crime in coordination to the central govt whereas, Sec.
357 ruled the field which was not mandatory in nature and only the offender can be
directed to pay compensation to the victim under this Sec.( MOHD HAARON V. UOI
(2014) 5 SCC 252).
PRAYER

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

1. Dismiss this Special Leave Petition.

2. Hold that the order of conviction passed by the Sessions Court and the Hon’ble High
Court is correct.

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AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And
for this, the Respondent as in duty bound, shall humbly pray.

COUNSELS ON BEHALF OF THE RESPONDENT

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