INTRA MOOT COURT COMPETITION, 2021

MOOT PROPOSITION

Mr. Kishan Chand was a government employee in a Bank in Ghaziabad. During his stay in
Ghaziabad, he met a girl and they started dating each other.

The girl approached him with a proposal of marriage. Mr. Kishan Chand, at first, refused but later
on, accepted the proposal. Next day, the girl came to his room along with all her belongings with
the intent to live with him.

The girl’s family being oblivious to these acts, filed a missing complaint at police station. After
six hours, Police found both of them in Kishan Chand’s room. The girl was sent to her house, and
Kishan Chand was arrested on the ground of kidnapping. Later on, the officer in charge of police
station, upon an investigation, found no sufficient evidence and submitted his report under Section
169 Code of Criminal Procedure, 1973 (hereinafter referred as CrPC)

Being aggrieved by such action of police, after 20 days, girl’s father approached the superintendent
of police and requested him for reinvestigation.

During reinvestigation, the Medical officer examined the victim (victim’s name is deliberately
withheld) and found that the hymen of victim was torn. However, the medical officer was not sure
whether the torn of hymen was due to penetrative sexual assault or not. The victim had given the
Medical officer the history that she was in love with Kishan Chand for last one year. The birth
certificate stated her age of 17 years 9 months.

Further, the statements of the victim’s parents were recorded under Section 161 CrPC which stated
that the victim has been sexually assaulted by the accused repeatedly. Whereas, the victim did not
cooperate with police during the recording of her statement. She even remained silent before the
Magistrate when her statement under Section 164 CrPC was to be recorded.

Subsequently, the new investigation officer has submitted charge sheet against the accused for the
offenses punishable under Section 376, Indian Penal Code, 1860 (hereinafter referred as IPC) and
Section 3 read with Section 4 of Protection of Children from Sexual Offenses Act, 2012
(hereinafter referred as POCSO).

The accused was brought before the court in pursuance of a commitment of the case to Court of
Session, the accused filed for discharge. The court rejected the said application.

1|Page
LAW SCHOOL, BANARAS HINDU UNIVERSITY
 INTRA MOOT COURT COMPETITION, 2021

The Trial court framed the charge against the accused. The accused denied his guilt and claimed
to be tried. Surprisingly, the prosecution in support of its case examined only 4 witnesses. The
victim was not examined. After that, prosecution refused to lead any evidence before the trial court
and submitted that, under Section 29 and Section 30 of POCSO, the Special Court to presume that
such person has committed the offenses charged under POCSO unless the contrary is proved.
Therefore, the prosecution has discharged its burden as per the Act, and the accused has to prove
the contrary. The accused submitted that there was no physical intimacy, and the instant First
Information Report was lodged only after he was released by police. Further, the accused sought
permission to examine the victim, which was denied by the court. The trial court reserved its
judgment.

The trial court held that the accused could not prove contrary to presumption, thereafter, proceeded
to convict the accused for the offenses charged.

Mr. Kishan Chand appealed his conviction in the High Court. The High Court upheld the order of
trial court.

Mr. Kishan Chand filed a special leave to appeal to the Supreme Court of India challenging, inter
alia, the constitutional validity of Section 29 and Section 30 of POCSO for violating his
fundamental rights.

The matter is pending before Hon’ble Supreme Court for constitutional validity of section 29 and
Section 30 of POCSO.

2|Page
LAW SCHOOL, BANARAS HINDU UNIVERSITY