THE ACCUSED ARE NOT GUILTY UNDER SECTION 376 AND 354 OF INDIAN

PENAL CODE, 1860

It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (Hereinafter will
be referred as A1, A2, and A3 respectively, are guilty of rape under section 376 and s. 354 of
IPC. The accused are charged with, the intervening night of 6th and 7th of July brutally
committing rape on the victim, while she was sleeping in her room.

It is humbly submitted that the accused plead not guilty as there was no physical contact between
the accused and the victim as the [1.1] medical reports are inconsistent [1.2] no independent
witness to the incident giving the accused, [1.3] the benefit ofdoubt,[1.4] Confession of the Co-
Accused.

[1.1] INCONSISTENCIES BETWEEN MEDICAL REPORT AND DYING

DECLARATION.

The defence humbly submits that though as a matter of law, the sole testimony of the prosecutrix
can sufficiently be relied upon to bring home the case against the accused, 1it is very dangerous to
convict the accused especially when the all that we have on her behalf is a sole declaration and
that too is inconsistent with the medical reports as there have been no injuries in the private parts
and is not in consonance with the statements given by A-3 (which will be dealt separately)2

As a general rule if evidence of the prosecution inspires confidence, it must be relied upon
without seeking corroboration of her statement in material particulars, 3 which is clearly not the
scenario here. In the case of in the case of State of U.P. v. Madan Mohan4 the Apex Court held
that:It is for the court to see that dying declaration inspires full confidence as the maker of the
dying declaration is not available for cross-examination. In Ramilaben v.State of Gujrat5the court
did not find the dying declaration to be admissible as it lacked confidence and was inconsistent
with the medical reports.

1
Manohar Lal v. State of M.P, (2014) 15 SCC 587.
2
Annexure 2, Rem Juris 1 National Virtual Moot Court Competition.
3
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
4
AIR 1989 SC 1519.
5
(2001) 1 GLR 783.
The Hon’ble SC in the case of State of H.P. v. Gian Chand6 held that conviction for an offence
of rape can be based on the sole declaration of the prosecutrix corroborated by medical evidence
and other circumstances such as the report of chemical examination, etc. if the same is found to
be natural, trustworthy and worth being relied on. The contrary is the scenario here as in the
instant case, the contentions in the dying declaration and the medical reports stand poles apart.

While the dying declaration states that she was raped thrice and the statements of A-3 7 state that
she was hit on the private parts and other body parts, the medical reports state that she had no
injuries in private parts & there was no semen found regarding the same. Other body parts also
had some injuries only related to the nail marks of which no proper investigation or DNA test
has been done. More than a forced rape, the marks signify the signs of consensual sex that could
have happened between her and any other individual. The report signify clear inconsistencies
and one cannot convict the accused solely on the belief that they “might” have raped her.

The possible reasons for her death here are Hypovolemia and Dyspnea. 8 While the former is a
condition of significant and sudden blood or fluid losses within your body caused due to
bleedings from digestive tract or overtly sensitive vaginal bleeding or prolonged diarrhea&
consistent vomiting, etc. & the latter is a condition of a state of breathlessness severe than the
usual and the causes for the same could be gastritis, bleeding disorder etc.

Also, assuming but not conceding to the fact that dying declaration hold some referential value,
though it doesn’t, the possible reason for the death is also internal bleeding which could have
been a result of she being kicked by her in-laws and it does not make it a fact that the rape was
ever committed by A1, A2 and A3. The blood stains on the cloth could also be a possible
outcome of consensual sex.

To conclude, each fact and collection of assumptions corroborating with the fact clearly signify
that the rape was never committed by the accused and the medical report concedes to this fact
while the dying declaration does not corroborate with the facts, hence the accused is hereby
innocent.

[1.2] NO INDEPENDENT WITNESS.

6
State of H.P v. Gian Chand, (2013) 14 SCC 420.
7
Annexure 4, Rem Juris 1 National Virtual Moot Court Competition.
8
Id. at 2.
Rape causes the greatest distress and humiliation to the victim but at the same time a false
allegation of rape can cause equal distress, humiliation and damage to the accused as well. 9It is
true that in a case of rape the evidence of the prosecutrix must be given predominant
consideration, but to hold that this evidence has to be accepted even if the story is improbable
and belies logic,10would be doing violence to the very principles which govern the appreciation
of evidence in a criminal matter.11

While the statements of PW2, PW3, PW4, and PW5 lead to mere assumptions and apprehensions
and again as mentioned signify that the rape might be a scenario, the accused cannot be
convicted on mere assumptions and in a conflict between “did” and “might have done”, actuality
must be given its due consideration.12 While PW1 statement does signify the presence of the
accused at the prosecutrix’s house but the same is not to be admitted for the alleged
offence.13There is no presumption or any basis for assuming that the statement of such a witness
is always correct or without any embellishment orexaggeration.14

Several statements by prosecution witness are on hearsay evidence 15 and they have no first-
hand knowledge of the same making the same inadmissible.In Arguendo, in the case of
Krishan Kumar Malik v. State of Haryana 16 the Supreme Court said that §6 of the Evidence
Act69 is an exception to the general rule where-under hearsay evidence becomes admissible.
The prosecution witnesses in their examination has laid down that they have no first-hand
information of the incident but is saying what prosecutrix had told her or other
circumstancial statements. But for bringing such hearsay evidence within the ambit of §6 of
the Evidence Act, what is required to be established is that it must be almost
contemporaneous with the acts and there could not be an interval which would allow
fabrication.17

Thus, the statement of the prosecution witnesses cannot be considered material and clearly

9
Rajoo & Ors v. State of Madhya Pradesh, AIR 2009 SC 858.
10
Rakesh Chhabra v. State (NCT of Delhi), 2017 SCC OnLine Del 9334.
11
Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566.
12
Supra note. 7.
13
Id. at 12
14
Supra note. 9.
15
S. 60, The Indian Evidence Act 1872, No. 1, Acts of Parliament, 1872
16
Krishan Kumar Malik v. State of Haryana, AIR 2011 SC 2877.
17
Id at 16.
signify fabrication and hereby leading to the accused not being liable of the aforementioned
charges.
[1.3] BENEFIT OF DOUBT

The counsel for the defence humbly submits before this Hon’ble Court that in criminal
trials, as opposed to civil proceedings where preponderance of probabilities is sufficient,
the burden of establishing the charge against the accused rests on the prosecution and the
standard of proving the same is always beyond all reasonable doubts. 18 Suspicion, however,
grave, cannot take place of proof & the Court must dispassionately scrutinize the evidence
on record, so as to ensure that the findings regarding the guilt of a
personarenotbasedonconjecturesorsuspicion.19 Criminalityisnottobepresumedandso there
exists a presumption of innocence in favour of the accused until the charge is proven.20

In the instant case the accused reaped at night when Dhanalaxmi was asleep they covered
her face so that she could not be identified & her modesty was outraged too (under s. 376
and 354 of the IPC). At the same time, the statements of the prosecution witnesses have not
been able to establish the same and the medical reports vis-à-vis the dying declaration is
inconsistent with each other. The statements of the witnesses only signify assumptions and
unreasonable apprehensions.
It is pertinent to note that false charges of rape are not uncommon. There have also been rare
instances where a person has persuaded a gullible or obedient daughter to make a false charge of
a rape either to take revenge or extort money or to get rid of financial
liability.21Thus,ifthecourtisoftheopinionthatonevidence,twoviewsarepossible,one that the accused
is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the
accused.22

18
Wilson Gilbert Viegas v. State, 2010 SCC OnLineBom 969.
19
Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade v. State of
Maharashtra, AIR 1973 SC 2622.
20
Subash Chand v. State of Rajasthan, (2001) 1 SCC 702.
21
Radhu v. State of Madhya Pradesh, 2007 Cri. LJ 4704.
22
K.P. Thimmappa Gowda v. State of Karnataka, (2011) 14 SCC 475.
 [1.4] CONFESSION OF THE CO-ACCUSED.

According to section 30 of the Indian Evidence Act, 1872, when several people are being tried
for the same offence, the court must take into consideration the statements of the accused but not
to the extent of solely convicting him or the co-accused. Also, such statements should not be
made under force or fraud23 which is a grey area and in no way clear in the instant case. Such
statements are considered ‘weak’ and lack evidence as they have not been recorded on oath, nor
it is given in the presence of accused and nor can the truth be established by cross examination..

In the instant case, A-3 has agreed with the allegations but his statements are inconsistent with
the report and dying declaration as stated that the act was brutal and they had hit the deceased in
private parts and several other body parts, but the the medical reports and the dying declaration
do not show any such signs.

The evidence should stand the test of corroboration. The following dangers of accepting
‘uncorroborated testimony’ are: a) he is participes criminis, hence evidence comes from a tainted
source; b) He has been faithless to his companions and may be faithless to the court. According
to s. 114 (b) of the Indian Evidence Act, the court shall presume that an accomplice is unworthy
of credit if it is not in consonance with the material facts. Therefore the two fold tests are: a) his
evidence must be relatable; b) and the evidence must be materially corroborated.

Sec 354 IPC, as states that whoever assaults or uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished for
the same.Thus, physical advances or contact is necessary for the aforementioned charge which is
clearly not the case here as the medical report shows no such signs and the dying declaration too
fails to establish that the same.
Thus, inconsistency in the medical report, lacunae in the declaration and fabrication by witness
gives a presumption of innocence in the favour of accused as the charges cannot be
provedbeyond reasonable doubt. So, in the light of the aforesaid statements, the defence humbly
denies the charges u/§ 354 and §376 and must be acquitted for the same.

23
Balbir Singh v. State of Punjab, AIR 1957 SC 216.