BEFORE THE HON’BLE HIGH COURT OF BOMBAY

APPELLANT JURISDICTION

CRIMINAL APPEAL NO. OF 2012

In the matter of

Mr. Sachin Mishra Appellant

Mr. Vikram Jhadav Appellant
Mr. Aniket Salwi Appellant
v.
The State of Maharashtra Respondent

MEMORIAL ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES ii

STATEMENT OF JURISDICTION iv

SUMMARY OF FACTS v

QUESTIONS OF LAW vii

SUMMARY OF ARGUMENTS viii

ARGUMENTS ADVANCED 1

CONTENTION 1: THAT THE APPEAL IS NOT MAINTAINABLE

CONTENTION 2: THAT THE CASE FALLS UNDER THE CATEGORY OF RAREST OF

RARE CASES. 3

CONTENTION 3: THAT THE DEATH PENALTY IS JUSTIFIED 6

PRAYER ix
 INDEX OF AUTHORITIES

STATUTORY COMPILATIONS

 INDIAN PENAL CODE, 1890

 INDIAN EVIDENCE ACT, 1872
 CRIMINAL PROCEDURE CODE, 1973

BOOKS AND DIGESTS

TABLE OF CASES

1. Bachhan Singh v. State of Punjab, AIR 1980 SC 898

2. Macchi Singh v. State of Punjab, AIR 1983 SC 957
3. Maenka Gandhi v. Union of India,
4. Mahindra Singh v. State of MP, 1987 3 SCC 80
5. Rajendra Prasad v. State of Uttar Pradesh, 1991 3 SCC 471
6. Santosh Kumar Bariyar v. State of Maharashtra, (2015) 1 SCC 67
 STATEMENT OF JURISDICTION

THE APPELLANT HAS FILED AN APPEAL TO THE HON’BLE HIGH COURT OF

BOMBAY TO REVIEW THE JUDGEMENT PASSED BY THE TRAIL COURT OF PUNE.

THE HON’BLE HIGH COURT HAS THE JURISDICTION TO HEAR THE MATTER
UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE, 1973.

SEC. 374(2) OF THE CRIMINAL PROCEDURE CODE, 1973 READS AS FOLLOWS:

“374. APPEALS FROM CONVICTION –

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven
years  has been passed against him or against any other person convicted at the same trial], may
appeal to the High Court.”
 SUMMARY OF FACTS

1. Navita is a 28 years old, married woman who works in a BPO Company Pune. She used
to travel to her workplace and back by her company transport, public transport or by an
auto rickshaw.
2. On 17/10/2012 i.e. the day of the incident, she was working late and missed her company
transport. She accepted the offer of lift near a Mall on Nagar road by Sachin Mishra
(Accused no.-1) in cab driven by him along with two others i.e. Vikram Jhadav (Security
Guard) (Accused no.-2) and Aniket Salwi (Accused no.-3). They promised to take her to
her house in Katraj and therefore she placed her trust in them.
3. The brutes took her advantage as she was the only woman in the cab. They drove her
across the city and raped her several times. In the meantime, T. Ramlinga (Approver)
joined them and raped her as well.
4. Her dead body was found near Markal road, the next day. The post-mortem revealed that
the cause of her death was strangulation by cloth, which was probably her dupatta. Her
face and head was brutally crushed with heavy stones to camouflage her identity in order
to destroy evidence.
5. Trial took place and all three were held guilty of gang-rape and murder and were
sentenced to death u/s 376(A), 397, 302, 404, 120(B) of IPC for that horrific crime. T.
Ramligam was acquitted. All the three accused filed an appeal before the Bombay High
Court against the decision of the Trial Court Pune.
 QUESTIONS OF LAW

1. WHETHER THE APPEAL IS MAINTAINABLE?

2. WHETHER THE CASE FALLS UNDER THE RAREST OF RARE CASES?
3. WHETHER DEATH PENALTY IS APPROPRIATE IN THIS CASE?
 SUMMARY OF ARGUMENTS

CONTENTION 1: THAT THE APPEAL IS NOTMAINTAINABLE.

The appeal is not maintainable before the Hon’ble High Court of Bombay as the decision of the
Trail Courts is apt and justified. The punishment befits the act committed by the three accused.

CONTENTION 2: THE CASE FALLS UNDER THE CATEGORY OF RAREST OF

RARE CASES.

The acts of multiple rape and murder followed by destruction of face of the victim are brutal and
grotesque. These acts are inhumane and a shock for the mankind.

The acts committed by the accused were heinous and brutal, thus they fall under the category of
rarest of rare cases. The acts shook the conscience of the entire community.

CONTENTION 3: DEATH PENALTY IS APPROPRIATE IN THIS CASE.

The acts of the accused i.e. gang rape and murder fall under the category of rarest of rare cases.
The acts committed satisfy aggravating circumstances and thus the reformative approach cannot
be applied to such heinous crimes. Such criminals cannot be excused in the guise of humanity. A
soft approach will only encourage such criminal that is why death penalty is the appropriate
punishment.
 ARGUMENTS ADVANCED

CONTENTION 1: THAT THE APPEAL IS NOT MAINTAINABLE.

The appeal before the Hon’ble High Court of Bombay should not be allowed as the facts of the
case are clear. The accused are guilty of gang rape and murder of the victim. The Trail Court
Pune has awarded them death penalty as the act of accused falls under the “rarest of rare cases”.

The three accused betrayed the faith of Navita and raped her while moving the cab across the
city. Later on, they also allowed Ramalingam to join them who further continued to rape Navita.
Their inhuman acts did not stop at rape, they murdered the victim by strangulation and then
destroyed her face to destroy evidence.

The three accused have been given reasonable opportunity to prove themselves innocent but their
heinous act prompted the Trial Court Judge to give them death penalty.
 CONTENTION 2: THAT THE CASE FALLS UNDER THE CASE OF RAREST OF
RARE CASES.

In the present case, the act of the three accused of brutally raping and murdering the deceased
falls into “Rarest of rare” cases. It is imperative to mention that there is no straightjacket
criterion of “Rarest of rare” cases and special circumstances have to be taken in consideration.
However, the Apex Court has time and again enumerated certain factors which have to be taken
in consideration for putting into “Rarest of rare” cases which are:

1. Manner of the commission of crime.

2. Socially abhorrent nature of the crime.
3. Such act which shocks the collective conscience of the community.

It is the nature and the gravity of the crime which are the basic consideration for appropriate
punishment in the criminal trial. In the present case the act of the accused fulfills the criterion of
the doctrine of “Rarest of rare” cases. In the case of Macchi Singh v. State of Punjab1, the
Hon’ble Supreme Court described the meaning of manner of murder and stated that when murder
is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to
arouse intense and extreme indignation of the community then such act is one of the aspects of
the doctrine of “Rarest of rare” cases in the manner of commission of crime by accused.

In the present case, the act of the three accused is abhorrent because Navita was repeatedly gang
raped and then murdered by strangulation of her dupatta around her neck and then destroyed her
face with heavy stones. Therefore, the act of the accused shocked the collective conscience of the
community and is put under the purview of the “Rarest of rare” cases.

1
(1983) 3 SCC 470.
 CONTENTION 3: THAT DEATH PENALTY IS APPROPRIATE.

In Maineka Gandhi v. Union of India2, Supreme Court held that the death penalty can be
awarded only in special cases. It constitutes an exceptional punishment which will be imposed
only with special reasons and will be properly conferred by the High Court. In Rajendra Prasad
v. State of Uttar Pradesh, the Justice Krishna Iyyer observed that “if the murderous operation of
a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then
his enjoyment of fundamental rights may be rightly annihilated.”3

In Santosh Kumar Bariyar v. State of Maharashtra, Justice S.B. Sinha imposed a duty upon the
court that “Appropriate punishment is to be determined on a case-by-case basis. The death
sentence is not to be awarded save in the “Rarest of rare” case where reform is not possible.”4

Basing reliance on Bachchan Singh Case5, the following can be considered as aggravating
circumstances:

 Murder committed with previous planning and extreme brutality.

 Murder involving exceptional decadence.
 Murder of any member of armed force of the union, police force or a public servant:
1. On duty.
2. Anything done or attempted to be done in lawful discharge of his duty whether or
not at the time or murder he was such member or public servant.
 Murder of the person in the course of lawful discharge of his duty u/s 43, 37 and 129 of
CRPC.

3
1991 3 SCC 471
4
(2015) 1 SCC 67
5
AIR 1980 SC 898
In the present of the accused satisfies aggravating circumstances, when such crimes are
continuously increasing reformative ideas are totally ineffective. If death penalty is not given it
will only badly influence the criminals like them to commit such heinous crimes.

The MP High Court in the case of Mahindra Singh v. State of MP “Justice demands that the
court should impose a punishment befitting the crime so that it reflects abhorrence of the crime.”6

Humanity is more in danger in the hands of persons like the accused who have committed an act
of extreme depravity when they brutally raped and murdered Navita. The extreme punishment
may convey a message to these predators that it is not a soft state where criminals committing
such crimes may get reprieve in the guise of humanity.

6
1987 3 SCC 80
 PRAYER

In the light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsel for the Respondent humbly prays before the Hon’ble Court to kindly adjudge and
declare that:

1. The appeal is not maintainable.

2. The case falls under the category of the rarest of rare cases.
3. The death penalty is justified.

And to further pass any order that the Hon’ble Court may deem fit.

And for this act of kindness, the Counsel on behalf of the respondent, as duty bound shall forever
pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd /-

COUNSEL FOR THE RESPONDENT.