Professional Documents
Culture Documents
C.C. …… OF 2019
In the matter of
State of Starwalker
(Prosecution)
v.
Tridev Shukla
(Defence)
SECTIONS 328, 363, 376 & 506 OF THE TRINDIAN PENAL CODE, 1860
&
TABLE OF CONTENTS
A. BOOKS _______________________________________________________________ vi
B. LEXICONS ____________________________________________________________vii
F. CASES ________________________________________________________________vii
[1.] Whether Mr. Tridev Shukla (Hereinafter Accused) is guilty of the offence under
§328 of Trindian Penal Code, 1860? ___________________________________________ 1
[1.1] The acts of the accused satisfy all the pre-requisites. __________________________ 1
[1.1.1]Accused administered drugs to the victim _______________________________ 1
[1.1.2] Intention to commit or to facilitate the commission of an offence. ____________ 2
[2.] Whether the Accused is guilty of the offence under §363 of Trindian Penal Code,
1860?_____________________________________________________________________ 3
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[2.1] The acts of the accused satisfy all the pre-requisites of kidnapping. ______________ 3
[2.1.1] Taking or Enticing any minor ________________________________________ 3
[2.1.2] Out of the keeping of the lawful guardian of victim _______________________ 4
[2.1.3] Absence of consent of guardian ______________________________________ 4
[3.] Whether the accused is guilty for the offence under §376 of T.P.C, 1860? ________ 5
[3.1] Act of sexual intercourse was committed by the accused with the prosecutrix. _____ 5
[3.1.1] Witness Statement _________________________________________________ 6
[3.1.2.] Documentary Evidences ____________________________________________ 7
[3.2] The act must fall under the any of the seven circumstances of §375. _____________ 7
[4] Whether the accused Tridev Shukla is guilty for offence under §506 of T.P.C.? ____ 8
[4.1] Threatening a person with injury. _________________________________________ 9
[4.1.1] To his person, reputation, or property __________________________________ 9
[4.2] Threat must be with Intent. _____________________________________________ 10
[5.] Whether the Accused is guilty of the offence under §6 of the Protection of Children
From Sexual Offences Act, 2012? ____________________________________________ 10
[5.1.] Commission of aggravated penetrative sexual assault. _______________________ 10
[5.1.1.] The Deputy Commissioner of Police is a public servant __________________ 11
[5.1.2] Penetrative sexual assault has been committed against the victim ___________ 11
[5.1.3.] Victim fall within the definition of child ______________________________ 13
[5.2.] Act is committed by the accused. _______________________________________ 13
[5.3.] Burden of Proof is on the defence. ______________________________________ 14
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LIST OF ABBREVIATIONS
SL. NO. ROOT WORD ABBREVIATION
1. Allahabad All.
3. And &
5. Another Anr.
6. Article Art.
7. Bombay Bom.
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25. Justice J.
34. Paragraph ¶
35. Paragraphs ¶¶
40. Regina R.
41. Section §
42. Sections §§
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53. Versus v.
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INDEX OF AUTHORITIES
A. BOOKS
9. Kataria, R.P., Commentary on ‘The Protection of Children from Sexual Offences’ Act,
2012 (2nd Ed. 2016).
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B. LEXICONS
1. Catherine Soanes, Oxford Dictionary Thesaurus, 40th Ed., 2006, Oxford University Press.
3. Garner Bryana, Black’s law Dictionary, 7th Ed. 1981, West Group.
D. INTERNATIONAL LEGISLATIONS
1. Convention on the Rights of the Child (United Nations General Assembly Resolution
44/25 of 20 November, 1989).
E. LEGAL DATABASE
1. www.heinonline.com
2. www.lexisnexis.com
3. www.manupatra.com
4. www.scconline.com
F. CASES
1. A.S. Krishnan & Ors. v. State of Kerala, (2004) 11 S.C.C. 576.
2. Adapala Subbaiah v. Shaik Hasan Saheb, (2007) 4 ALD 196.
3. Alakh Alok Srivastava v. Union of India & Ors., 2018 S.C.C. OnLine S.C. 478.
4. Aman Kumar & Anr. v. State of Haryana, A.I.R. 2004 S.C. 1497.
5. Aman Kumar v. State of Haryana, A.I.R. 2004 S.C. 1497.
6. Anda & Ors. v. State of Rajasthan, A.I.R. 1966 S.C. 148.
7. Anil Kumar Sharma v. State of H.P., 2015 S.C.C. OnLine H.P. 3758.
8. Anis Beg v. Emperor, A.I.R. 1924 All. 215.
9. Bakshish Singh v. State of Punjab, A.I.R. 1971 S.C. 2016.
10. Basdev v. State of PEPSU, 1956 S.C.R. 363.
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11. Bhagubhai Dullabhabhai Bhandari v. District Magistrate, Thana, A.I.R. 1956 S.C. 585.
12. Bharat Aaratmal Ramtara @ Kara v. The State of Maharashtra, (2012) 1 A.I. R. Bom. R
793.
13. Bhoora Yadav @ Rahul v. State of U.P., (2016) 93 A.C.C. 597.
14. Bhungee Ahur, (1865) 2 WR (Cr) 5.
15. Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi & Anr., 2012 S.C.C.
OnLine S.C. 1043.
16. Bishnu Dayal v. State of Bihar, A.I.R. 1981 S.C. 39.
17. Biswanath Mallick v. State of Madras, A.I.R. 1965 S.C. 942.
18. Biswanath Mallick v. State of Orissa, 1995 Cri. L.J. 1416 (Ori).
19. Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 117.
20. Chandi Charan v. Bhabataran (1964) 2 Cri. L.J. 85 (Cal).
21. Chandrabhan @ Aba Jaggan Salunke v. The State of Maharashtra, 2015 S.C.C. OnLine
Bom. 6156.
22. Deelip Singh @ DIlip Kumar v. State of Bihar, A.I.R. 2005 S.C. 203.
23. Deelip Singh v. State of Bihar, (2005) 1 S.C.C. 88.
24. Deepak Verma v. State of Himachal Pradesh, (2011) 10 S.C.C. 129.
25. Dilip v. State of M.P., (2003) Cri. L.J. 2449 (S.C.).
26. Dinesh Chandra Jamuna Das Gandhi v. State of Gujrat, (1989) 1 S.C.C. 420.
27. EERA v. State (NCT of Delhi) & Anr., 2017 S.C.C. OnLine S.C. 787.
28. Empress v. Joygopal, 4 WR (Cri.) 4.
29. Exploitation of children in orphanages in state of Tamil Nadu v. Union of India & Ors.,
2017 S.C.C. OnLine S.C. 534.
30. Fateh Chand v. State of Haryana, (2009) 15 S.C.C. 543.
31. Gopal Krishan v. State of Punjab, 2003 Cri. L.J. 2851 (P&H).
32. Guddu v. State of M. P., (2007) 14 S.C.C. 454.
33. Independent Thought v. Union of India & Anr., 2017 S.C.C. OnLine S.C. 1222.
34. Independent Thought v. Union of India, (2017) 10 S.C.C. 800.
35. Iqbal v. State of Kerala, (2007) 12 S.C.C. 724.
36. Jageer Singh v. State of Rajasthan, (1998) 7 S.C.C. 372.
37. Jinish lal Shah v. State of Bihar, (2003) 1 S.C.C. 605.
38. Joseph Kurian v. State of Kerala, A.I.R. 1995 S.C. 4.
39. K.K. Saravana Babu v. State of Tamil Nadu & Anr., (2008) 9 S.C.C. 89.
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103. Vishal v. Avinash Ram Sadphule, 2014 S.C.C. OnLine Bom. 1887.
104. Wahid Khan v. State of Madhya Pradesh, A.I.R. 2010 S.C. 1.
105. Zahoor Ali v. State of U.P., 1989 Cri. L.J. 1177 (All.).
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STATEMENT OF JURISDICTION
The prosecution has approached the Hon’ble Special (POCSO) Sessions Court at
Starwalker under §177 r/w §209 of Act 2 of 1974 along with §28(1) of Act 32 of 2012.
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.
§209 (Act 2 of 1974): Commitment of case to Court of Session when offence is triable
exclusively by it
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-
Provided that if a Court of Session is notified as a children's court under the Commissions for
Protection of Child Rights Act, 2005 or a Special Court designated for similar purposes
under any other law for the time being in force, then, such court shall be deemed to be a
Special Court under this section.
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STATEMENT OF FACTS
BACKGROUND
Mr. Tridev Shukla is the D.C.P. of Starwalker City police administration. Ms. Sitara Nayak
approached Mr. Shukla with request to mediate on her family’s behalf for a property. Mr.
Shukla agreed but no agreement on the same could be met out. The relations between the two
soured but later in December, 2012 Ms. Nayak invited Mr. Shukla to her home where he met
Wareena Nayak, d/o Ms. Sitara Nayak.
PAST RECORD
Ms. Kanyakumari Anand who also works with the department as an Inspector and reports to
Mr. Shukla, had filed a sexual harassment complaint against him.
INCIDENT ON 07/02/2013
At around 1300 hrs Mr. Shukla called Wareena and asked to meet near her coaching at
District Centre to give her history notes. From there, he took her to his house and offered a
cup of coffee. Wareena became unconscious after administering coffee.
At around 1400 hrs, she regained her consciousness and found herself naked in the bedroom
of Mr. Shukla. Mr. Shukla informed her that he had sexual intercourse with her and also
threatened her not to inform about the same to anyone.
INCIDENT ON 27/02/2013
At 2000 hrs finding Wareena alone in her house, Mr. Shukla came to her place and tried to
rape her. Ms. Sitara Nayak along with her son came to the rescue of her daughter and was
informed about the events of 07.02.2013.
INVESTIGATION
On 28/02/2013 at around 0000 hrs police was informed about the whole incident and F.I.R.
was filed against Mr. Tridev Shukla. A Final Form Report was filed & Mr. Tridev Shukla
was charged u/s. 328, 363, 376 & 506 of Trindian Penal Code, 1860 along with §6 of
Protection of Children from Sexual Offences Act, 2012.
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STATEMENT OF CHARGES
According to the submitted Final Form Report of F.I.R. No. 24/2013 dated 27/02/2013
the accused has been charged u/s.
328 (45 of 1860)1 Causing Hurt by means of poison, etc. with intent to commit an offence
1
Causing hurt by means of poison, etc., with intent to commit an offence-Whoever administers to or causes
to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with
intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or
knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
2
Punishment for kidnapping-Whoever kidnaps any person from India or from lawful guardianship, shall be
punished with imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
3
Punishment for rape-Whoever, except in the cases provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term which shall not be less than seven years but which
may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women
raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with both: Provided
that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.
4
Punishment for criminal intimidation-Whoever commits, the offence of criminal intimidation shall be
punished with imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
5
Punishment for aggravated penetrative sexual assault-Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which
may extend to imprisonment for life and shall also be liable to fine.
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STATEMENT OF ISSUES
-I-
-II-
WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §363 OF TRINDIAN PENAL
CODE, 1860?
-III-
WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §376 OF TRINDIAN PENAL
CODE, 1860?
-IV-
WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §506 OF TRINDIAN PENAL
CODE, 1860?
-V-
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SUMMARY OF ARGUMENTS
-I-
[1.] WHETHER MR. TRIDEV SHUKLA (HEREINAFTER ACCUSED) IS GUILTY OF THE OFFENCE
UNDER §328 OF TRINDIAN PENAL CODE, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker,
there are multiple incidents and evidences that corroborate the fact that the accused is guilty
for the offence of administering drugs to the victim with the intent to commit an offence u/s.
328. In order to bring affluent conviction under this charge it is pertinent to refer to essentials
of this §. The acts of the accused satisfy all the pre-requisites and there are material evidences
to prove the guilt of the accused u/s. 328 of T.P.C., 1860.
-II-
[2.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §363 OF TRINDIAN PENAL
CODE, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker
that there are multiple incidents and evidences that corroborate the fact that the accused is
guilty for the offence of kidnapping u/s. 363. In order to bring affluent conviction under this
charge it is pertinent to refer to essentials of kidnapping. Further there are multifarious
episodes that put on the endeavours made by the defendant. The acts of the accused satisfy all
the pre-requisites of kidnapping and there is material evidence to prove the guilt of the
accused u/s. 363 of T.P.C., 1860.
-III-
[3.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §376 OF TRINDIAN PENAL
CODE, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Court of Sessions, Starwalker,
that there are prolific developments and evidences that corroborate the fact that the accused
Mr. Tridev Shukla is guilty for the offence of rape under §376. On a harmonious reading of
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§376 and State of Uttar Pradesh v. Bablunath we see, two important ingredients necessary
to constitute the offence of rape are: [1] an act of sexual intercourse by a man with a woman,
[2] the act must fall under any of the seven clauses of §375.
-IV-
[4.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §506 OF TRINDIAN PENAL
CODE, 1860?
Criminal intimidation, which is punishable u/s. 506, is defined in §503, Trindian Penal Code
as follows: ‘Whoever threatens another with any injury to his person, reputation or property
with intent to cause alarm to that person, or to cause that person to do any act which he is not
legally bound to do, as the means of avoiding the execution of such threats, commits criminal
intimidation.’
-V-
[5.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §6 OF THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker
that the facts of the case and the evidences corroborate and show the guilt of the accused
under §6 of POCSO Act, 2012 beyond all reasonable doubts.
“Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous
…” This means to prove the guilt of any person under §6 of POSCO Act, 2012 the necessary
ingredients to be proved are: [1.] Commission of aggravated penetrative sexual assault. And
[2.] the act is committed by the accused. [3.] Burden of proof is on the defence.
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ARGUMENTS ADVANCED
ISSUE-1
[1.] WHETHER MR. TRIDEV SHUKLA (HEREINAFTER ACCUSED) IS GUILTY OF THE OFFENCE
UNDER §328 OF TRINDIAN PENAL CODE, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker6,
there are multiple incidents and evidences that corroborate the fact that the accused is guilty
for the offence of administering drugs to the victim with the intent to commit an offence u/s.
3287. In order to bring affluent conviction under this charge it is pertinent to refer to
essentials of this §. The acts of the accused satisfy all the pre-requisites and there are material
evidences to prove the guilt of the accused u/s. 328 of T.P.C., 1860.
(i) The accused must administer to, or caused to be taken by,9 any person10, a thing;
(ii) The said thing was any poison11, or a stupefying, intoxicating or unwholesome drug,12
or any other thing13; and
(iii)The accused did so:
(a) Intending to cause hurt14 to the said person15, or
(b) Knowing it to be likely that he will thereby cause hurt,16 or
(c) Intending to commit, or to facilitate the commission of an offence17.
6
Trial Proposition.
7
The Indian Penal Code, 1860.
8
1996 Cri. L.J. 1062.
9
R v. Hurley, (1830) 4 C&P 369; Pardesi v. State 1968 A.W.R. 711 (H.C.).
10
R v. Dhania Daji, 5 Bom. H.C. (Cr.) C 59.
11
Sushila Teluni v. State, I.L.R. 1959 Cut. 682.
12
Empress v. Joygopal 4 W.R. (Cr.) 4.
13
R v. Jottee Ghoraee 1 W.R. (Cr.) 7.
14
The Indian Penal Code, 1860, §319.
15
The Indian Penal Code, 1860, §11.
16
Anis Beg v. Emperor, A.I.R. 1924 All. 215.
17
The Indian Penal Code, 1860, §40.
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administered the substance to the complainant and he did so with intent to cause hurt, or with
the intention to commit or facilitate the commission of an offence18.
Furthermore in the instant case19, in the statement of the victim clearly depicts that,20 the
accused took the victim to his house by persuading her. He offered her a cup of coffee, mixed
with some drug, which made the victim unconscious. The accused did so with the intent to
rape21 the victim. Moreover, as per the accused statement,22 he offered the victim a cup of
coffee and later she woke up with no clothes. Statement of both accused and the victim are in
corroboration. Therefore, the accused is guilty of the offence u/s. 328 of T.P.C., 1860 for
administering drugs to the victim with the intent to commit rape.
Furthermore, it is necessary to prove the intention or knowledge on the part of the accused to
convict a person under §328.24
In the instant case, as per the statement of the accused and victim, it is quite clear that the
accused took the victim to his place and offered her a cup of coffee mixed with some drug
with the intent to commit rape on her.25 This indicates the intention of the accused and shows
that all of this was done with the motive to commit rape. Further, the accused selected the
date and time when there was no one in his home, this clearly shows his planning for the
offence.26 Therefore, the accused must be convicted u/s. 328 of T.P.C., 1860.
18
Supra note 17.
19
Trial Proposition.
20
Trial Proposition, Ex. 1, Pg. 9, Ex. 3, Pg. 12 & Ex. 4, Pg. 13.
21
The Indian Penal Code, 1860, §375.
22
Trial Proposition, Ex. 1, Pg. 13.
23
Re. Kuruba Chinna Hanumakka, A.I.R. 1943 Mad. 396.
24
Muruga Goundan v. Emperor, 15 Cri. L.J. 599.
25
Supra note 21.
26
Ibid.
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ISSUE-2
[2.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §363 OF TRINDIAN PENAL
CODE, 1860?
It is humbly submitted before the Hon’ble Court27 that there are multiple incidents and
evidences28 which corroborate with the fact that the accused is guilty for the offence29 of
kidnapping under §36330. In order to bring affluent conviction under this charge it is pertinent
to refer to the essentials of kidnapping.31 Further there are multifarious episodes that put on
the endeavours made by the defendant. The acts of the accused satisfy all the pre-requisites of
kidnapping and there is material evidence to prove the guilt of the accused u/s. 363 of T.P.C.,
1860.
[2.1] The acts of the accused satisfy all the pre-requisites of kidnapping.
In the case of Biswanath Mallick v. State of Orissa,32 the apex court restated the four
ingredients of §36333: [i.] Taking34 or Enticing35 away a minor or a person of unsound
mind.36 [ii.] Such minor must be under 16 years of age, if a male,37 or under 18 years of age,
if a female.38[iii.] The taking or enticing must be out of the keeping of the lawful guardian of
such minor or person of unsound mind,39 [iv.] Such taking or enticing must be without the
consent of such guardian.40
27
Trial Proposition.
28
The Indian Evidence Act, 1872, §3.
29
Supra note 17.
30
The Indian Penal Code, 1860, §363.
31
Biswanath Mallick v. State of Madras, A.I.R. 1965 S.C. 942.
32
Biswanath Mallick v. State of Orissa, 1995 Cri. L.J. 1416 (Ori.).
33
Supra note 31.
34
Madan Lal v. Jaswant Batra, 1994 Cri. L.J. 1767.
35
Biswanath Mallick v. State of Orissa, 1995 Cri. L.J. 1416 (Ori).
36
S. Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942; State of Haryana v. Rajaram, A.I.R. 1973 S.C. 819.
37
The Indian Penal Code, 1860, §361.
38
Ibid.
39
Prakash v. State of Haryana, (2004) 1 S.C.C. 39.
40
Bhungee Ahur, (1865) 2 W.R. (Cr.) 5.
41
Supra note 38.
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specified in the section, out of the keeping of the lawful guardian without the consent of such
guardian.”42
It is not necessary that the taking or enticing must be shown to have been by means of force
or fraud. Persuasion by the accused person which creates willingness on the part of the minor
to be taken out of the keeping of the lawful guardian would be sufficient to attract the §.43
In the present case, the accused had persuaded the victim by offering her history notes in
order to take her to his house, where other offence i.e., rape was committed by the accused on
the victim. This is quite clear from the statement of the victim given before the counsellor44
stated, “On 07.02.2013, Mr. Shukla forced me to go to his place despite my reluctance.”
Also, as per the statement of the accused,45 he agreed that the victim was reluctant to go to his
place, which corroborates the statements of the accused as well as the victim.
Persuasion by the accused is sufficient to constitute ‘taking’ within the meaning of this §47.
Consent of the minor is wholly immaterial. It is only the guardian’s consent that takes the
case out of the purview of the §.48
In the present case, as per the statement of the accused49 and the victim50 it is quite clear that
the accused have persuaded the victim which resulted in bringing the victim out of the
keeping of the lawful guardian.
42
State of Haryana v. Raja mam, A.I.R. 1973 S.C. 819; S.Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942.
43
Ibid.
44
Trial Proposition, Ex. 3, Pg. 12, ¶1.
45
Trial Proposition, Ex. 4, Pg, 13.
46
Prakash v. State of Haryana, (2004) 1 S.C.C. 39.
47
The Indian Penal Code, 1860, §363.
48
S. Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942.
49
Trial Proposition, Ex. 4, Pg, 13.
50
Trial Proposition, Ex. 1, Pg. 9, Ex. 3, Pg. 12 & Ex. 4, Pg. 13.
51
Bhungee Ahur, (1865) 2 W.R. (Cr.) 5.
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In the case of Zahoor Ali v. State of U.P.,52 it was held that “if a child leaves its parents’
house for a particular purpose with their consent, it cannot be said to be out of the parents
keeping. A mere leading of a not unwilling child would be sufficient”
In the present case, the victim was taken out of the keeping of the lawful guardian with their
consent by the accused. Further, the accused fulfils all the essential ingredients of §363 of
T.P.C of 1860. Hence, the accused should be held liable for kidnapping under §363.
ISSUE-3
[3.] WHETHER THE ACCUSED IS GUILTY FOR THE OFFENCE UNDER §376 OF T.P.C, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Court of Sessions, Starwalker,
that there are prolific developments and evidences that corroborate with the fact that the
accused Mr. Tridev Shukla is guilty for the offence of rape53 under §376.54 On a harmonious
reading of §376 and State of Uttar Pradesh v. Bablunath55 we see, two important ingredients
necessary to constitute the offence of rape as: [1] an act of sexual intercourse by a man with a
woman,56 [2] the act must fall under any of the seven clauses of §375.57
[3.1] Act of sexual intercourse was committed by the accused with the prosecutrix.
The prosecution most reverently submits before this Hon’ble court that the facts and the
circumstances of the case clearly show that there was sexual intercourse 58 by the accused
with the prosecutrix without her consent.59
The essence lies in the ‘presentation’,60 however slight, of the penis,61 or ‘insertion’ of any
object or part of body (other than the penis),62 or manipulation of any part of the body of a
woman for penetration into the vagina,63 urethra, or anus of a woman.64 It is not necessary
52
Zahoor Ali v. State of U.P., 1989 Cri. L.J. 1177 (All.).
53
Supra note 22.
54
The Indian Penal Code, 1860, §376.
55
(1994) 6 S.C.C. 29.
56
Ibid.
57
Supra note 22.
58
Sakshi v. Union of India, A.I.R. 2004 S.C. 3566.
59
Shyam Narain v. State, (NCT of Delhi) (2013) 7 S.C.C. 77.
60
Wahid Khan v. State of Madhya Pradesh, A.I.R. 2010 S.C. 1.
61
State of Tamil Nadu v. Ravi alias Nehru, (2006) 10 S.C.C. (Cri.) 133.
62
Parminder Singh @ Ladka Pola v. State of Delhi, A.I.R. 2014 S.C. 1034.
63
Anil Kumar Sharma v. State of H.P., 2015 S.C.C. OnLine H.P. 3758.
64
Independent Thought v. Union of India, (2017) 10 S.C.C. 800.
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that there should be injuries on her private parts65 or her hymen should rupture,66 or he should
ejaculate.67
In the present case this is established with the help of evidences [3.1.1] Statement of
Witnesses, and [3.1.2] Documentary Evidences.
Keeping in mind that it is not for the prosecution to meet any and every hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be,68 it is humbly submitted
before this Hon’ble court that the circumstantial evidence in the instant matter shows that
within all human probabilities, the act is done by the accused.69
It is a well-known maxim that ‘Evidence has to be weighed and not counted’70 and it has
been given statutory placement u/s. 134 of Evidence Act71 which states that no particular
number of witnesses is required.72 Also, on congenial reading of §114A of T.E.A.73 and
Rajesh Namdeo Matre v. State of Maharashtra,74 it is evident that the accused has to prove
that the woman consented to sexual intercourse.75 In the present case the testimony of the
prosecutrix under §161 of Cr. P. C. (Ex-4),76 the statements of Ms. Sitara Nayak,77 Riyayat
Nayak,78 and the Statements of other P. W.’s,79 completes the chain of circumstances80 and
the statement of the witnesses are the blocks of circumstances that build the chain of the
accused’s guilt.
65
Fateh Chand v. State of Haryana, (2009) 15 S.C.C. 543.
66
Guddu v. State of M.P., (2007) 14 S.C.C. 454; Rajendra Datta Zarekar v. State of Goa, A.I.R. 2008 S.C. 572;
State of Karnataka v. F. Nataraj, (2015) 9 S.C.C. 91.
67
Aman Kuman v. State of Haryana, A.I.R. 2004 S.C. 1497; Tarekshwar Sahu v. State of Bihar, (2006) 8 S.C.C.
560.
68
State of Uttar Pradesh v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840.
69
Bakshish Singh v. State of Punjab, A.I.R. 1971 S.C. 2016.
70
Nikhil Soni v. State of H.P., 2015 Cri. L.J. 1299.
71
The Indian Evidence Act, 1872, §134.
72
Kartik Malhar v. State of Bihar, (1996) Cri. L.J. 889.
73
The Indian Evidence Act, 1872, §114A.
74
(2002) 4 L.J. 266.
75
Ibid.
76
Trial Proposition, Ex. 4, Pg. 13, ¶1.
77
Trial Proposition, Ex. 4, Pg. 14, ¶6.
78
Trial Proposition, Ex. 4, Pg. 15, ¶4.
79
Trial Proposition, Ex. 4(d, e & j).
80
Chandrabhan @ Aba Jaggan Salunke v. The State of Maharashtra, 2015 S.C.C. OnLine Bom. 6156.
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Also, the prosecutrix has given §16481 statement which can form basis for the conviction of
the accused.82 Sole reliance on single witness testimony was upheld in various
cases.83Therefore, the accused is guilty of the above-mentioned offence.
When we combine the documentary and the oral evidences all the essentials of crime- (i)mens
rea,88(ii) actus reus,89(iii) planning,90 (iv) preparation91 of the accused Tridev Shukla is
clearly met in this instant case.
Further, he told, that he was bringing the notes to the coaching centre, but in turn did not
bring the notes and ask the victim to accompany him to his house, where he sedated her and
raped her while she was unconscious.92 This shows his intention to commit the crime.93
[3.2] The act must fall under the any of the seven circumstances of §375.
On a harmonious reading of §37594 and Shankar Kishanrao Khade v. State of
Maharashtra,95 it is sine qua non that the act of sexual penetration must fall under any of the
seven circumstances under §375.
81
The Code of Criminal Procedure, 1973, §164.
82
Bhoora Yadav @ Rahul v. State of U.P., (2016) 93 A.C.C. 597.
83
Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, A.I.R. 2008 S.C. 927.
84
Uka Ram v. State of Rajasthan, (2001) 5 S.C.C. 254.
85
Adapala Subbaiah v. Shaik Hasan Saheb, (2007) 4 A.L.D. 196.
86
Trial Proposition, Ex. 3, Pg. 12.
87
Trial Proposition, Ex. 4, Pg. 13.
88
Uma Shankar v. State of Chhattisgarh, (2001) 9 S.C.C. 642.
89
Dinesh Chandra Jamuna Das Gandhi v. State of Gujrat, (1989) 1 S.C.C. 420.
90
Suleman & Anr. v. State of Delhi, (1999) 4 S.C.C. 146.
91
Koppula Venkat Rao v. State of A.P., (2004) 3 S.C.C. 602.
92
Trial Proposition, Ex. (3, 4b, 5, Final Form Report).
93
Basdev v. State of PEPSU, 1956 S.C.R. 363; Jageer Singh v. State of Rajasthan, (1998) 7 S.C.C. 372.
94
The Indian Penal Code, 1860, §375(6).
95
(2013) 5 S.C.C. 546.
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The first two circumstances, sexual penetration without the consent of the victim96 and
against her will97 appear synonymous.98 But, there is some distinction on basis of the element
of active opposition.99
Consent supposes three things- (i) a physical power to act,100 (ii) a mental power of acting,101
and a (iii) free and serious use of them.102 And, when these three criteria’s are evaluated, they
make up consent103of a minor immaterial.104 Sexual intercourse with a woman will amount to
rape,105 whether it is done with or without her content.106 As the consent of minor is no
consent.107 And, in the instant case consent is immaterial because [a] victim is under 18 years
of age108 hence, consent is immaterial.109 [b] She was not in her senses as she was
unconscious,110 hence, sexual intercourse with her amounts to rape.111 As such consent is not
informed consent as it is not given with understanding pros and cons as well as consequences
of the intended action.112
After reading of the arguments it is noteworthy that the guilt of accused is clearly highlighted
and he is liable for the punishment under §376.
ISSUE-4
[4] WHETHER THE ACCUSED TRIDEV SHUKLA IS GUILTY FOR OFFENCE UNDER §506 OF
T.P.C.?
Criminal intimidation,113 which is punishable under §506,114 is defined in §503, Trindian
Penal Code as follows: ‘ (i) Whoever threatens another with any injury to his person,115
96
Rabindranarayan Das v. State of Orissa, (1992) Cr. L.J. 269 (Ori.).
97
Pradeep Kumar Verma v. State of Bihar, A.I.R. 2007 S.C. 3059; Kaini Rajan v. State of Kerela, (2013) 9
S.C.C. 113.
98
Deelip Singh @ DIlip Kumar v. State of Bihar, A.I.R. 2005 S.C. 203.
99
State of Uttar Pradesh v. Chhoteylal, (2011) 2 S.C.C. 550.
100
Uday v. State of Karnataka, (2003) 4 S.C.C. 46.
101
Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar (2007) 7 S.C.C.
102
Kathi v. State, (2013) 12 S.C.C. 710.
103
The Indian Penal Code, 1860, §90.
104
State v. Kesar Singh, 1977 Cr. L.J. (NOC) 185 (J&K).
105
Bishnu Dayal v. State of Bihar, A.I.R. 1981 S.C. 39.
106
Jinish Lal Shah v. State of Bihar, (2003) 1 S.C.C. 605.
107
Iqbal v. State of Kerala, (2007) 12 S.C.C. 724; State of Punjab v. Rakesh Kumar, A.I.R. 2009 S.C. 392.;
Dilip v. State of M.P., (2003) Cr. L.J. 2449 (S.C.).
108
Trial Proposition, Pg. 5, ¶4.
109
Satish Kumar Jayanti Lal Dabgar v. State of Gujrat, (2015) Cr. L.J. 1959 (S.C.).
110
Trial Proposition, Ex. 3.
111
Meena v. State of Haryana, 2015 S.C.C. OnLine P&H 16380.
112
Supra note 108.
113
The Indian Penal Code, 1860, §503.
114
The Indian Penal Code, 1860, §506.
115
Manik Taneja v. State of Karnataka, (2015) 7 S.C.C. 423.
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reputation116 or property,117 (ii) with intent to cause alarm to that person,118 (iii) or to cause
that person to do any act which he is not legally bound to do as the means of avoiding the
execution119 of such threats, commits criminal intimidation.’120
The scope of the section was enclosed in Romesh Chandra v. State,121 [1] the manner of
threat is an essential ingredient of the offence,122 [2] intent specified in this section is also an
essential ingredient of the offence,123 and it must be established by the evidence and must be
found as a fact. It is only the words used by the speaker that can give an idea of the evil
threatening.124 The intention is the very soul of the definition of criminal intimidation. The
intention can be gathered by the words and the sentence uttered.125
116
Tilak Raj v. State of H.P., (2016) 4 S.C.C. 140.
117
Nilesh Sundar Shetty v. State of Maharashtra, (2016) S.C.C. OnLine Bom. 8588.
118
Bharat Aaratmal Ramtara @ Kara v. The State of Maharashtra, (2012) 1 A.I.R. Bom. R 793.
119
Bhagubhai Dullabhabhai Bhandari v. District Magistrate, Thana, A.I.R. 1956 S.C. 585.
120
Supra note 114.
121
(1960) 1 S.C.R. 924.
122
Ibid.
123
Ratanjeetsing Brahmajeetsing Sharma v. State of Maharasthtra, (2004) 106 (4) Bom. L.R. 119.
124
State of Maharastra v. Prakash Mane, 1980 Cri. L.R. (Mah.) 146.
125
Shri Vasant Vaman Pradhan v. State of Maharastra, 2004 (1) Mah. L.J. 487 (Bom.).
126
Chandi Charan v. Bhabataran, (1964) 2 Cri. L.J. 85 (Cal.).
127
Chandi Charan v. Bhabataran, (1964) 2 Cri. L.J. 85 (Cal.).
128
Deelip Singh v. State of Bihar, (2005) 1 S.C.C. 88.
129
Trial Proposition.
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ISSUE-5
[5.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §6 OF THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker
that the facts of the case and the evidences corroborate and show the guilt of the accused
under §6 of POCSO Act, 2012 beyond all reasonable doubts.
“Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous
…”131 This means to prove the guilt of any person under §6 of POSCO Act, 2012 the
necessary ingredients132 to be proved are: [1.] Commission of aggravated penetrative sexual
assault.133 And [2.] the act134 is committed by the accused. Further [3.] Burden of proof is on
the defence.
Therefore, to bring the act within the preview of aggravated penetrative sexual assault140 the
following ingredients must be fulfilled141:1. The act must be done by a public servant.142 2.
There is penetrative sexual assault.143 3. The act is against a child.144
130
Tammineedi Bhaskara Rao & Ors. v. State of Andhra Pradesh & Anr. 2007 Cri. L.J. 1204 (A.P.).
131
The Protection of Children from Sexual Offences Act, 2012, §6.
132
Mahender v. State of Delhi, 2017 S.C.C. OnLine Del. 9031.
133
Alakh Alok Srivastava v. Union of India & Ors. , 2018 S.C.C. OnLine S.C. 478.
134
The Indian Penal Code, 1860, §33.
135
The Protection of Children from Sexual Offences Act, 2012, §2(a).
136
The Indian Penal Code, 1860, §10.
137
The Protection of Children from Sexual Offences Act, 2012, §3.
138
The Protection of Children from Sexual Offences Act, 2012, §2(d).
139
The Protection of Children from Sexual Offences Act, 2012, §5.
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Further, §2 of The Police Act, 1861 states, “Subject to the provisions of this Act the pay and
all other conditions of service of members of the subordinate ranks of any police force shall
be such as may be determined by the Government”.152
Therefore, it can be concluded when both the §§ are read together that the Deputy
Commissioner of Police falls within the preview of Public Servant.
[5.1.2] Penetrative sexual assault has been committed against the victim
153
A person is said to commit “penetrative sexual assault154”155 if he penetrates156 his penis, to
any extent, into the vagina, mouth, urethra or anus of a child157 or makes the child to do so
with him or any other person158.159
Merely because vagina admitted one finger with difficulty, it cannot be inferred that there is
no penetration as the muscles might have contracted by the time of examination, when
conducted.160 Even slight penetration without emission of semen and rupture of hymen would
140
Independent Thought v. Union of India & Anr., 2017 S.C.C. OnLine S.C. 1222.
141
EERA v. State (NCT of Delhi) & Anr., 2017 S.C.C. OnLine S.C. 787.
142
Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 117.
143
Shakib Shahajan Shaikh v. The State of Maharashtra, 2018 S.C.C. OnLine Bom. 5776.
144
Exploitation of children in orphanages in State of Tamil Nadu v. Union of India & Ors., 2017 S.C.C. OnLine
S.C. 534.
145
Supra note 17.
146
Superintending Engineer, Public health, U.T. Chandigarh & Ors. v. Kuldeep Singh & Ors., (1997) 9 S.C.C.
199.
147
Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi & Anr., 2012 S.C.C. OnLine S.C. 1043.
148
Union of India & Ors. v. Nagesh & Anr., (2002) 7 S.C.C. 603.
149
The Indian Penal Code, 1860, §21(8).
150
Supra note 15.
151
The Indian Penal Code, 1860, §21(12(a)).
152
The Police Act, 1861, §2.
153
Supra note 151.
154
The Protection of Children from Sexual Offences Act, 2012, §7.
155
The Protection of Children from Sexual Offences Act, 2012, §2(f).
156
JOHN GLAISTER, MEDICAL JURISPRUDENCE AND TOXICOLOGY 51 (13th ed., 1973).
157
Supra note 139.
158
Supra note 151.
159
The Protection of Children from Sexual Offences Act, 2012, §3(a).
160
Prithichand v. State of H.P., A.I.R. 1989 S.C. 792.
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constitute the offence.161 Also, no marks of injuries on the penis, does not mean the offence
has not been committed.162
Doctor finding that hymen was intact163 does not rule out rape in cases of child.164 The mere
fact that hymen was intact,165 does not by itself negates the commission of rape by the
accused as tearing of hymen would depend upon the extent of penetration166 and force used
while committing sexual assault167. Slightest penetration168 is sufficient for commission of
offence of rape and proof of rupture of hymen is unnecessary.169
Non-rupture of hymen is not conclusive of the fact that there was no sexual intercourse. 170 To
prove rape, emission of semen,171 & rupture of hymen is not necessary.172
Further, delay in filing the F.I.R.173 cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same.174 It is necessary for the courts to have a sensitive
approach when dealing with cases of child rape.175
The Courts should examine the broader probabilities of a case and not get swayed by minor
contradictions or significant discrepancies in the statement of the prosecutrix.176 If evidence
of the prosecutrix inspires confidence,177 it must be relied upon without seeking corroboration
of her statement178 in material particulars.179 The testimony of the prosecutrix180 must be
appreciated in the background of the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases involving sexual molestations.181
161
Aman Kumar & Anr. v. State of Haryana, A.I.R. 2004 S.C. 1497.
162
State of Mizoram v. Rualhleithanga, 2005 Cri. L.J. 3184 (Gau.).
163
Trial Proposition, Ex. 2, Pg. 11.
164
State of Karnataka v. Revannaiah, 2005 Cri. L.J. 2676 (Kant.).
165
Supra note 164.
166
DORLAND, MEDICAL DICTIONARY, (32nd ed., 2011).
167
Supra note 155.
168
State of Kerala v. Kundumkara Govindan, 1969 Cri. L.J. 818 (Ker.).
169
Ramachandrappa v. State of Haryana, 1976 Cri. L.J. 452 (P&H).
170
P.W. Khan v. State, A.I.R. 1962 Cal. 641.
171
Gopal Krishan v. State of Punjab, 2003 Cri. L.J. 2851 (P&H).
172
Prithvi Chand v. State of Himachal Pradesh, A.I.R. 1989 S.C. 702.
173
The Code of Criminal Procedure, 1973, §154.
174
Sh. Zosangliana v. State of Mizoram, 2005 Cri. L.J. 1057 (Gau.).
175
State of Rajasthan v. Om Prakash, A.I.R. 2002 S.C. 2235.
176
State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384.
177
Trial Proposition, Pg. 154.
178
Ibid.
179
Supra note 177.
180
Supra note 178.
181
Supra note 177.
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Therefore, the meaning of the child under POCSO will be any person below 18 years of
age.185
In the present case the victim is a female of 16 years of age 186 and this is an undisputed fact
of the case.187 Also, the age of the victim to be 16 years has been affirmed in the F.I.R.,188
statement of victim under section 161 Cr.P.C,189 final report from190191 & Statement before
magistrate192193. Therefore, all the necessities194 to prove aggravated penetrative sexual
assault195 are successfully fulfilled in the present case.
The victim has stated in her complaint in the F.I.R. 198 that on 07/02/2013 at around 1300
hours, the accused took the victim to his house and after making her unconscious, had sexual
intercourse with the victim.199 Further, the same has also been corroborated in the statements
given by her before the counselor200, police officer201 & magistrate202. Also, the fact stated by
182
Supra note 139.
183
Convention on the Rights of the Children, art. 1.
184
Preamble, The Protection of Children from Sexual Offences Act, 2012.
185
Supra note 183.
186
Trial Proposition, Pg. 5, ¶4.
187
Trial Proposition, Pg. 6, ¶6.
188
Trial Proposition, Ex. 1, Pg. 9, ¶8.
189
Trial Proposition, Ex. 4, Pg. 13, ¶3.
190
The Code of Criminal Procedure, 1973, §173.
191
Trial Proposition, Pg. 19, ¶9.
192
The Code of Criminal Procedure, 1973, §164.
193
Trial Proposition, Pg. 23, ¶1.
194
Supra note 142.
195
Supra note 136.
196
Supra note 135.
197
Supra note 136.
198
Trial Proposition, Ex. 1, Pg. 9, ¶12.
199
Trial Proposition, Ex. 1, Pg. 10, ¶1.
200
Trial Proposition, Ex. 3, Pg. 12, ¶1.
201
Trial Proposition, Ex. 4, Pg. 13, ¶3.
202
Supra note 194.
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the victim has been affirmed by the Call Detail Records 203 and all the chain of circumstances
have been successfully linked in the present case. Further, the victim has also successfully
identified each & every place related to the offence204 and this further proves the version of
the prosecution.
Even the past record of the accused in the present case raises reasonable apprehension on him
and gives a reasonable suspicion that such act can be committed by him.205
On the date of 27/02/2013 at around 2000 hours, finding the victim alone, the accused again
tried to rape her and the same was seen by the mother206 & brother207 of the victim.208
Therefore, the statement of the victim209 corroborates with all the chain of circumstances210
and also there is the presence of eye-witnesses211. All of these evidence successfully prove
the guilt of the accused under §6 of The Protection of Children against Sexual Offences Act,
2012.
In the present case the accused has been charged u/s. 6 of POCSO Act, 2012 and the same is
an offence u/s. 5 of POCSO Act, 2012.217 Therefore, following the provision of §29 of
POCSO Act, 2012 the burden of proof completely and wholly lies on the defence in the
203
Trial Proposition, Ex. 5, Pg. 17&18.
204
Trial Proposition, Ex. 4, Pg. 13, ¶1 & Pg. 14, ¶2&3.
205
Trial Proposition, Ex. 4, Pg. 14, ¶4.
206
Trial Proposition, Ex. 4, Pg. 14, ¶5.
207
Trial Proposition, Exhibit 4, Pg. 15, ¶3.
208
Trial Proposition, Final Report Form, Pg. 22, ¶3.
209
Supra note 194.
210
Supra note 204.
211
Supra note 207&208.
212
The Protection of Children from Sexual Offences Act, 2012, §3.
213
The Protection of Children from Sexual Offences Act, 2012, §5.
214
The Protection of Children from Sexual Offences Act, 2012, §7.
215
The Protection of Children from Sexual Offences Act, 2012, §9.
216
The Protection of Children from Sexual Offences Act, 2012, §29.
217
Supra note 192.
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present case and in case of their failure to satisfy the court and proof their innocence, the
court is bound to presume and hold them guilty for the offence.218
Further, §30(1) of POCSO Act, 2012 states, “In any prosecution for any offence under this
act which requires a culpable mental state on the part of the accused, the special court shall
presume the existence of such mental state..”219
Culpable mental state includes intention,220 motive,221 knowledge of a fact and the belief
in,222 or reason to believe, a fact.223
Therefore, the necessary elements of crime224 that is, planning, preparation, motive &
intention are to be presumed to be present. It is the burden on the defense to prove the
absence of these elements of crime and in case of their failure to achieve their burden beyond
all reasonable doubts, the court is bound to presume their presence and the accused must be
held guilty for the offence.225
218
Vishal v. Avinash Ram Sadphule, 2014 S.C.C. OnLine Bom. 1887.
219
The Protection of Children from Sexual Offences Act, 2012, §30(1).
220
Anda & Ors. v. State of Rajasthan, A.I.R. 1966 S.C. 148.
221
Deepak Verma v. State of Himachal Pradesh, (2011) 10 S.C.C. 129.
222
A.S. Krishnan & Ors. v. State of Kerala, (2004) 11 S.C.C. 576.
223
The Protection of Children from Sexual Offences Act, 2012, §30.
224
K.K. Saravana Babu v. State of Tamil Nadu & Anr., (2008) 9 S.C.C. 89.
225
Raj Kumar v. State of H.P., 2014 S.C.C. OnLine H.P. 5027.
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PRAYER
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it
is most humbly prayed and implored before the Hon’ble Special (POCSO) Sessions Court,
Starwalker:
To convict accused Mr. Tridev Shukla
u/s.328, 363, 376, 506 of T.P.C., 1860 & §6 of POCSO, 2012
And
Pass any such order that this Hon’ble Court deems fit in the interests of justice, equity and
good conscience.
xviii
MEMORANDUM ON BEHALF OF PROSECUTION