[I] THAT THE SPECIAL LEAVE PETITION BY STATE OF THUNDER PRADESH

IS NOT MAINTAINABLE.

It is humbly submitted before the Hon’ble Court that the instant matter is not maintainable

before the Court of Law. The petitioner lacks the essential ingredients to maintain the matter

before the apex Court.

It is humbly submitted before the Hon’ble Supreme Court that the Constitution of

Wonderland, by virtue of Art. 136 have not made the Supreme Court a regular Court of

Appeal or Court of Error. It only intervenes where justice, equity and good conscience

requires such intervention.1

The power under Art. 136 is an extraordinary power to be exercised in rare and exceptional

circumstances.2The respondents most humbly submit that in this particular case no such

special circumstances have occurred that would make this Hon’ble Court exercise its

extraordinary power.

The Hon’ble High Court was absolutely right while deciding the instant matter. No evidences

against the accused were proved before the court and thus Hon’ble High Court acquitted the

accused from all charges on the ground of reasonable doubt and lack of evidences.

The respondent has placed its reliance on the case of Baldota Brothers v. Libra Mining

Works,3 wherein this Court has held that-

“There is no distinction in the scope of the exercise of power under Art. 136 of the

Constitution of India at the stage of application for special leave and the stage where the

1
A.V. PapayyaSastri v. Govt. of A.P., AIR 2007 SC 154.

2
JamshedHormusjiWadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214.

3
Baldota Brothers v. Libra Mining Works, AIR 1961 SC 100.
appeal is finally disposed off and it is open to the Court to question the proprietary of the

leave granted by it even at the time of hearing of the appeal.”

Hence, it is submitted before the Hon’ble Court that a Special Leave once granted can be

subsequently revoked.4 Therefore, it is open to the Court to question the propriety of the leave

granted and to dismiss the appeal without going into the merits if it finds that there was no

proper case for granting special leave.5

[B] THAT MR. ROMSAY BOLTAN SHOULD NOT BE CONVICTED UNDER

SECTION 377 AND 306 OF WPC, 1860

It is humbly submitted before this Hon’ble Court that the decision of the High Court is not

patently erroneous and it has rightfully disposed of the case on the ground of lack of evidence

and reasonable doubt and acquitted the accused. It is submitted that accused Mr. Romsay

Boltan is not guilty of offences charged under section 377 of WPC [A] & Section 306 of

WPC [B].

[A] THAT MR. ROMSAY SHOULD NOT BE CONVICTED FOR THE OFFENCE

UNDER SECTION 377 OF WPC, 1860

It is most humbly submitted before getting into facts of we need to understand the law under

which the prosecution has filed the appeal.this Honourable Court that for the acquittal of Mr

Romsay Bolton under section 377, the ingredients of this section must be fulfilled. Section

377 run as follows:

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the

order of nature with any man, woman or animal shall be punished with imprisonment

4
Tungabhadra Industries v.The Government of Andhra Pradesh, AIR 1964 SC 1372.

5
Bengal Chemical & Pharmaceuticals Works Limited v. Employees, AIR 1959 SC 633.
 for life, or with imprisonment of either description for a term which may extend to ten

years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to

the offence described in this section.

The essential ingredients of Section 377 are as follows:

i) The accused had carnal intercourse with man, woman or animal

ii) Such intercourse was against the order of the nature

iii) Presence of consent of both adults

iv) There was penetration

The court in the case of Navtej Singh Johar v. Union of India held that two adults can have

carnal intercourse with consent; two adults will include any person, both transgender as well. 6

In this case, Alosh after having undergone sex surgery converted himself into girl and took

the name of Alice.7 The prosecution has falsely alleged Ramsay for committing offence under

Section 377 and 306 of WPC, 1860. The respondent have primarily based his arguments on

two grounds i.e., there are no evidences or medical reports of Romsay Boltan which can

prove that he had any sexual intercourse with Alice. Also it is submitted before the Hon’ble

Court that he was not present at the time when the alleged incident happened.

Medical Report of Alice

Alice was medically examined and it was concluded that she was subjected to sexual

intercourse i.e. peno-vaginal sex but was not subjected to carnal intercourse against the order

of nature. Sexual intercourse has been defined in Black’s Law Dictionary as a contact

6
Navtej Singh Johar v. Union of India

7
Nalsa v. uoi
between a male and a female’s sexual organ.8 The unnatural carnal intercourse with human

being generally consists in penetration per anus.9 Though the definition of carnal intercourse

against the order of nature is not very clear and the definition can be understood in wide

ambit, thus consent has equally become essential condition to constitute an offence under this

section.10 Though the medical examination of Alice concluded that she was subjected to

sexual intercourse but what about the medical examination report of accused, his report has

not been presented before the court.

A] Absence of Medical Examination Report of the accused

It is mandatory to medically examine any accused of rape as well as other forms of sexual

assault. Section 53-A of CrPC, 1973 states that examination of person accused of rape by

medical practitioner is mandatory.11 But there are no medical records/reports of the accused

being presented by the prosecution which can show that accused was involved in the sexual

intercourse with Alice anywhere. Even the Hon’ble High Court acquitted the accused because

of lack of evidence against the accused.

Generally, accused is brought in the police custody for conducting medical examination

which includes general physical examination, potency test and evidence collection. The

medical examination report of the accused is labelled as the “Potency Test Report”.

The medical report in rape cases is a document of vital importance.12Potency test is still a

mandatory part of medical examination of accused. It cannot be lost sight of that rape causes

8
Black’s law dictionary 2nd edition.

9
R a nelsons ipc pg.3241.

10
Supra 6.

11
Section 53-A, CrPC, 1973.

12
84th Law Comission Report
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.13

Looking into the facts of this case, it is amply clear that the case of the prosecution, as made

out, appears to be artificial and concocted. If in actuality the incident had taken place as

contended by appellants, the medical report of the accused would have been presented by

them before the court.

In absence of medical report of accused, the court cannot arbitrarily manifest that the accused

involved in the sexual intercourse with the victim. Merely because medical examination of

Alice states that she was subjected to sexual intercourse, Ramsay Bolton should not be made

liable for rape just because he was one of the persons who were presented in the Christmas

party. Also when the alleged incident happened the accused was already left as witnessed by

Grey Voram. The allegations of Alice are totally false and erroneous thus, should to be

dismissed.

B] THAT ROMSAY BOLTON WAS NOT PRESENT WHEN THE ALLEDGED

INCIDENT HAPPENED

It is most humbly submitted before this Hon’ble Court that Mr. Romsay Bolton was not

present at the time when Alice alleged him for committing rape on her as he left the place

(party) before, when this alleged incident had happened. The counsels on the behalf of

respondent would support its argument on the basis of facts and law as follows;

Plea of Alibi

When an accused makes a plea of alibi in a court he or she attempts to prove that he or she

was in some other place at the time the alleged offence was committed. In general, a plea of

13
Raju vs. State of M.P. (2008) 15 SCC 133
alibi implies that the accused was physically not present at the scene and time of the

commission of an offence due to the reason that he was present somewhere else. Plea of alibi

is a rule of evidence recognized under Section 11 of the Indian Evidence Act, 1872.14

It is humbly submitted before the Hon’ble Court that accused was not present at the place

where the alleged incident happened at that point of time. So there was absence of person

charged at the place of occurrence. Mr. Grey Voran, who was the security in charge of the

Christmas party, witnessed Ramsay Bolton leaving the party before Alice alleged the offence

of rape on him. He also said that Mr. Romsay Bolton was very calm and composed. He was

on the phone while he left the party but he stopped for a second and gave me a tip of 2,000

Rupees.15

From the above statement, it can be clearly established that if a person after committing such

a serious offence and heinous crime will not be calm and composed but he would be in the

state of terror and panic, and at that point of time he will escape from the place as soon as

possible but here the case is totally different the accused was so calm and cool that he even

stopped the car for a moment and gave some amount of tip to the security guard. All these

incidents shows the real picture of the incident that he was in good mood and not in any state

of terror when he left the party, it strongly favours the accused that he not present when the

alleged incident happened.

This firmly establishes that the allegation made was an attempt to defame Mr. Romsay

Bolton.

[B] THAT MR. ROMSAY SHOULD IS NOT LIABLE FOR ABETMENT OF

SUICIDE UNDER SECTION 306 OF WPC, 1860

14
Section 11, Indian Evidence Act, 1872.

15
Para 19, Moot Proposition.
It is most humbly submitted before this Honourable Court that the Mr. Romsay Bolton is not

liable under Section 306 of WPC, 1860 as there is no evidence of direct abetment of suicide

by him, the Hon’ble High court has rightly given its decision in favour of accused and thus he

should not be convicted for abetment to suicide. Further, The Wonderland Penal Code, 1860

provides the clear definition and essentials of Abetment to suicide.

Section 306 WPC is as follows:

306. Abetment of suicide: If any person commits suicide, whoever abets the commission of

such suicide, shall be punished with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.16

The two requirements for an offence under section 306 IPC are

a) Suicide and
b) Abetment to commit suicide.

In section 306 IPC, the word 'abetment' has not been defined or explained. In Concise Oxford

English Dictionary (XI Edition 2004), 'Abetment' (Abet, Abets, Abetting, Abetted, Abettor)

has been explained as 'encourage or assist (someone) to do something wrong in particular to

do crime'. In Wonderland Penal Code, in Chapter V (Abetment), in Section 107 'abetment of

a thing' has been explained. Though the word 'abetment' has not been defined in section

306 IPC to understand its meaning, we can refer to section 107 IPC. Section 107 IPC runs as

under:

107. Abetment of a thing a person abets the doing of a thing, who-

First: Instigates any person to do that thing; or

16
S. 306, IPC, 1860.
Secondly : Engages with one or more other person or persons in any conspiracy for the

doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy,

and in order to the doing of that thing; or

Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1 : A person who, by willful misrepresentation, or by willful concealment of a

material fact which he is bound to disclose, voluntarily causes or procures, or attempts to

cause or procure, a thing to be done is said to instigate the doing of that thing.

Explanation 2 : Whoever either prior to or at the time of the commission of an act, does

anything in order to facilitate the commission of that act, and thereby facilitates the

commission thereof, is said to be aid the doing of that thing.17

Section 107 IPC defines abetment as comprising:

i. instigation to commit the offence :

ii. engaging in conspiracy to commit the offence, and

iii. aiding the commission of an offence.

Abetment thus necessarily means some active suggestion or support to the commission of the

offence. The word 'instigate' literally means to goad, urge forward, provoke, incite or

encourage to do an act and a person is said to instigate another when he actively suggests or

stimulates him to the act by any means, or language, direct or indirect, whether it takes the

form of express solicitation or of hints, insinuation or encouragement.

17
S. 107, IPC, 1860.
In Randhir Singh and Another v. State of Punjab,18  the Hon'ble Supreme Court observed as

under: “Abetment involves a mental process of instigating a person or intentionally aiding

that person in doing of a thing.

In Ramesh Kumar v. State of Chhattisgarh,19 'instigation' has been explained by the Hon'ble

Apex Court as under:

“Instigation is to goad, urge forward, provoke, incite or encourage doing an act. To satisfy

the requirement of instigation though it is not necessary that actual words must be used to

that effect or what constitutes instigation must necessarily and specifically be suggestive of

the consequence. Yet a reasonable certainly to incite the consequence must be capable of

being spelt out. The present one is not a case where the accused had by his acts or omission

or by a continued course of conduct created such circumstances that the deceased was left

with no other option except to commit suicide in which case instigation may have been

inferred. A word uttered in the fit of anger or emotion without intending the consequences to

actually follow cannot be said to be instigation.”

In S.S.Chhena v. Vijay Kumar Mahajan and Another,20  the Hon'ble Apex Court observed

that:

“Abetment involves a mental process of instigating a person or intentionally aiding a person

in doing of a thing. Without a positive act on the part of the accused to instigate or aid in

committing suicide, conviction cannot be sustained. The intention of the legislature and the

ratio of the cases decided by the Supreme Court is clear that in order to convict a person

under  Section 306 IPC there has to be a clear mens rea to commit suicide. It also requires
18
Randhir Singh and Another v. State of Punjab, AIR 2004 SC 5097 : (2004) 13 SCC 129

19
Ramesh Kumar v. State of Chhattisgarh, AIR 2001 SC 3837.

20
S.S.Chhena v. Vijay Kumar Mahajan and Another, (2010) 12 SCC 190.
an active act or direct act which led the deceased to commit suicide seeing no option and

that act must have been intended to push the deceased into such a position that he committed

suicide.”

In Amalendu Pal @ Jantu V. State of West Bengal,21 the Hon'ble Apex Court has opined as

under:

Thus, this Court has consistently taken the view that before holding an accused guilty of an

offence under Section 306 IPC, the Court must scrupulously examine the facts and

circumstances of the case and also assess the evidence adduced before it in order to find out

whether the cruelty and harassment meted out to the victim had left the victim which no other

alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged

abetment of suicide there must be proof of direct or indirect acts of incitement to the

commission of suicide. Merely on the allegation of harassment without there being any

positive action proximate to the time of occurrence on the part of the accused which let or

compelled the person to commit suicide, conviction in terms of Section 306 IPC is not

sustainable.

In Vijay Kumar Rastogi v. State of Rajasthan22 the Rajasthan High Court observed as under:

The word 'urge' means to advice or try hard to persuade somebody to do something, to make

a person to move more quickly or in a particular direction, specially by pushing or forcing

such person. Therefore, a person instigating another has to goad or urge forward the latter

with intention to provoke, incite or encourage the doing of an act by the latter. In order to

prove abetment, it must be shown that the accused kept on urging or annoying the deceased

by words, taunts or willful omission or conduct which may even be willful silence, until the
21
Amalendu Pal @ Jantu V. State of West Bengal, (2010) 1 SCC 707.

22
(2012) CRI. L.J. 2342.
deceased reacted, or pushing the deceased by his words or willful omission or conduct to

make the deceased move forward more quickly in a forward direction. Secondly, the accused

had the intention to provoke or urge or encourage the deceased to commit suicide while

acting in the manner noted above. Undoubtedly the presence of mens rea is the necessary

concomitant of instigation.

The court further observed that, in order to bring a case within the purview of Section

306  IPC there must be a case of suicide and in the commission of the said offence, the

person, who is said to have abetted the commission of suicide must have played an active

role by an act of instigation or by doing certain act to facilitate the commission of suicide.

Therefore, the act of abetment by the person charged with the said offence must be proved

and established by the prosecution before he could be convicted under Section 306 IPC. The

offence of abetment requires 'mens rea' (guilty mind). There must be intentional doing/aiding

or goading the commission of suicide by another. Otherwise, even a mere casual remark,

something said in routine and usual conversation will be wrongly construed or

misunderstood as 'abetment'.23

In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), 24 the court opined that there

should be intention to provoke, incite or encourage the doing of an act by the latter. Each

person's suicidability pattern is different from the others.

In M. Mohan v. State, the Hon'ble Court observed:25 ‘Abetment involves a mental process of

instigating a person or intentionally aiding a person in doing of a thing. Without a positive act

on the part of the accused to instigate or aid in committing suicide, conviction cannot be

23
Ibid.

24
Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) AIR 2010 SC 1446.

25
M.Mohan v. State by D.S.P. Karaikudi, (2011) 3 SCC 626.
sustained. The intention of the Legislature and the ratio of the cases decided by this

court are clear that in order to convict a person under section 306 IPC there has to be a

clear mens rea to commit the offence. It also requires an active act or direct act which

led the deceased to commit suicide seeing no option and this act must have been

intended to push the deceased into such a position that he/she committed suicide.’

Before committing suicide, Alice made a video of herself, in which she was seen crying and

traumatized. She started telling that she no more had the will to continue as she lost her

family. She said that now people are threatening her even when she was the victim and her

career and life are ruined.26

It is humbly submitted before the Hon’ble Court that suicide committed by Alice was not a

result of abetment done by Mr. Romsay Boltan but because of some other reason being

depression, death of parents etc. and the influence of alcohol. There was no direct or

indirect instigation on the part of Mr. Romsay Bolton. There was not aiding done by

Mr. Romsay Bolton for the commission of suicide. One of the groups which publicly gave

her a life threat was Wonderland Sanskriti Bachao Andolan. 27 The counsels for the

respondents would like to draw the attention of Hon’ble court mainly towards the post

mortem report of Alice in which the deceased was found to be in the intoxicated state at mind

as alcohol was found in her blood.28 When a person is under the influence of alcohol he/she

cannot understand the consequences of his/her act, Alice clearly stated that she no more had

the will to live because she lost her family, apart from this other factors like she was

receiving death threats from one of the group who does not approve his sexuality and

26
Para 12, Moot Propistion.

27
Para 8 of Moot Proposition.

28
Para 13, Moot Proposiotion
transgender people. We can conclude that she committed suicide due to her past life

experiences and weak state of mind under the influence of alcohol. 29

The respondent Mr. Romsay Boltan is a leading producer who makes movies of women

empowerment and patriotism, and also happens to be a member of the ruling party. 30 Possibly

all these allegations against made against him were to target the ruling party’s member and

people having same ideology for the election benefit. The movement was an attempt of

opposition to tarnish its member,31 ultimately to defame the ruling party’s member and

further to collapse their government which is in power.

Therefore, the counsel on the behalf respondent requests the Hon’ble Court to dismiss the

appeal and upheld the decision of Hon’ble High Court.

29
Para 16, Moot Proposiotion.

30
Para 9, Moot Propisition.

31
Para 24, Moot Proposiotion.