Docsity Moot Memorial On Behalf of Complainant

Moot memorial on behalf of
complainant
Law
Jaipur National University
14 pag.
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BEFORE THE HONOURABLE SESSION COURT
OF JAIPUR
State of Rajasthan
(COMPLAINANT)
VS.
X
(RESPONDENT)
CASE CONCERNING ABOUT KIDNAPPING, FORCED MARRIAGE AND RAPE

UNDER INDIAN PENAL CODE
MEMORANDUM ON BEHALF OF COMPLAINANT
SUBMITTED TO: SUBMITTED

BY:
MR. SHEIKH INAM NEETA
SAINI
ASSISTANT PROFESSOR BA.LLB (H)
SSLG SEMESTER(III)

TABLE OF CONTENTS
Index of Authorities....................................................................................................................................................
Statement of Jurisdiction.................................................................................................................................................
Statement Of Facts......................................................................................................................................................
Issues Raised...............................................................................................................................................................
Arguments Advanced......................................................................................................................................................
Prayer..........................................................................................................................................................................

INDEX OF AUTHORITIES
Statues Referred:
1. Indian Penal Code
2. Criminal Procedure Code
Cases Referred:
1. Neela Bebee case,10 W.R. (Cr.) 33
2. Shivanath vs State of Madhya Pradesh, 1998 Cr.LJ 2691
3. Pandyaram Sastri vs Emperor, 16 I.C. 166
4. Emperor vs Ismail Sayad Saheb Mujawar, A.I.R. 1933 Bom. 417
5. State vs Sunder Singh, (1961) Jab. L.J. 870
6. Rathinam vs State, A.I.R 1967 Mad. 409
7. Bhajan Lal vs State of Uttarakhand on 18 April 2013
8. Bishnudyal vs State of Bihar, A.I.R. 1981 SC 39
9. Emperor vs Asad Ali, 29 Cr.L.J. 12
10. Dolgobinda Rath vs State, A.I.R. 1958 Orissa 224
Books Referred:
1. Dr. Hari Singh Gour's, Indian Penal Code, 15 th edition, 2nd volume
Websites Referred:
1. www.indiankanoon.org
2. www.scconline.com

STATEMENT OF JURISDICTION
The Honorable Session court has jurisdiction to try the instant matter under section 209 of
Criminal Procedure Code 19731.
1
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 that the offence is triable exclusively by the
court of Session, he shall-
(a). Commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the court
of Session, and subject to the provisions of this code relating to bail, remand the accused to custody until such
commitment has been made;
(b). Subject to the provisions of this code relating to bail, remand the accused to custody during, and until the conclusion
of the trial;
(c). send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d). notify the Public Prosecutor of the commitment of the case to the court of Session.

STATEMENT OF FACTS
 On 1 September 2020 at about 1:15 hours the prosecutrix mother found that her daughter
was missing.
 On enquiring, she found that the accused had come to meet him and had a talk with her.
 After that, they ( accused and prosecutrix) moves towards the market one after the other
respectively.
 When prosecutrix's father enquired from the accused's uncle, he came to know that both
of them went towards Indra Gandhi Nagar, Jaipur Rajasthan bus stand.
 The accused uncle's son also saw both of them together at Indra Gandhi Nagar bus stand.
 When the prosecutrix father reached there, he could not find any of them.
 F.I. R was registered on 5 September 2020 at Indiragandhi Nagar police station. On 7
September 2020, both, accused and Prosecutrix had surrendered before the Police
 Their statements were recorded and Prosecutrix was sent to medical examination because
the age of the Prosecutrix was less than 16 years of age as per the complainant.
 The investigation revealed sufficient evidence against the accused and hence he was
arrested on 30 November 2020.
 Accused claimed that he was innocent. Both, accused and Prosecutrix was in love and got
married on 9 March 2020 as per Hindu rite. The marriage got registered by the marriage
of registrar at Indira Gandhi Nagar, Jaipur Rajasthan. So, he maintained that it is a false
case against him.
 Thereafter, as the case was exclusively triable by the court of sessions, the case was
committed to the session’s court, Indira Gandhi Nagar, Jaipur Rajasthan.

ISSUES RAISED
1. Whether the accused is liable under section 363 of Indian Penal Code ?
2. Whether the accused is liable under section 366 of Indian Penal Code?

ARGUMENTS ADVANCED
 KIDNAPPING
It is humbly contended to the court that the accused is guilty of an offence of kidnapping from
lawful guardianship.
Section 361 of Indian Penal Code provides,
''Kidnapping from lawful guardianship- Whoever takes or entices any minor under sixteen years of
age if a male or under eighteen years of age if a female, or any person of unsound mind, out of the
keeping of a lawful guardianship of such minor or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person from lawful guardianship.''
Essentials of Section 361 :-
 that the person kidnapped was then a minor under 16 years of age , if a male and under 18 years
of age if a female or that he was insane.
 that such person was in keeping of a lawful guardianship.
 that the accused took or enticed such person out of such keeping.
 that he did so without the consent of lawful guardianship.
The draftsman of the code said: “The crime of kidnapping consist according to our definition of
it , in conveying a person without his consent or the consent the consent of some person legally
authorized to consent on his behalf or with such consent obtained by deception out of the
protection of the law or of those whom the law has appointed his guardian.
In Neela Bebee case2, it was held by the court that the mere removal of minor from the custody
of the guardian is sufficient to constitute the offence.
In Shivanath vs State of Madhya Pradesh3 , it was held by the court that when there is no iota of
doubt that the accused had kidnapped the prosecutrix from the lawful guardianship of her
parents, the accused has been rightly convicted of the offence under Section 363 of the Indian
Penal Code.
 GUARDIANSHIP
2
Neela Bebee case,10 W.R. (Cr.) 33
3
Shivanath vs State of Madhya Pradesh, 1998 Cr.LJ 2691

It is not necessary that the girl should be in physical possession of the guardian. It is enough if it
is under a continuous control which is for the first time terminated by the act complained off. She
is still said to be in legal possession of her parents. She can be said to be in no longer in the
keeping or control of the lawful guardian when the facts disclosed that she was either driven
away from parental roof as was the case in Pandyaram Sastri vs Emperor4, or voluntarily
abandoned the control of the guardian on account of the I'll treatment as was in the case of
Southerland Weekly Reporter.
It is clearly visible from the facts that the prosecutrix was neitherr driven away from
parental roof nor she voluntarily abandoned the house on account of I'll treatment of his parents.
Thus the accused should be liable for the offence of kidnapping.
 INTENTION
It is humbly contended to the submitted to the court that it is clearly known that in order to
constitute a crime intention is an essential ingredient but,
In State vs. Sulekh Chand it is clearly mentioned by the court that, " the offence of kidnapping
under Section 363 consists solely of taking a minor from the keeping of lawful guardian and no
intention need to be established".
 AGE
It is humbly contended to the court that the prosecutrix kidnapped was under the age of 16 years
as mentioned in the First Information Report and it is sufficient to constitute the offence of
kidnapping.
In Emperor vs Ismail Sayad Saheb Mujawar5, it was held by the court that to constitute the
offence of kidnapping a minor from lawful guardianship penalized by this section is not
necessary to prove that the minor is under the age specified in section 361.
 CONSENT
It is most humbly submitted that in case of minor consent of father is main ingredient and such
consent must be legally obtained consent.
4
Pandyaram Sastri vs Emperor, 16 I.C. 166
5
Emperor vs Ismail Sayad Saheb Mujawar, A.I.R. 1933 Bom. 417

In State vs Sunder Singh6, it was held by the court that for the purpose of the section 363 of
Indian Penal Code, the intention of the offender, his motive, the means employed by him and the
consent of the girl are all irrelevant.
In this case, consent was not obtained from girl's father.
It is most humbly contended that sec. 366 is an aggravated form of offence created by sec.361
and 363. It is further contended that X is guilty of offence of kidnapping, abducts or inducing
women to compel her marriage etc. as the prosecutrix is kidnapped from the lawful guardianship
of father with the intention of compelling her to marry with the accused and forced or seduced to
illicit intercourse with the accused.
Section 366 of Indian Penal Code provides,
''Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to
be likely that she will be compelled, to marry any person against her will, or in order that she
may be forced or seduced to illicit intercourse, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine;''
For an offence instituted under this section main ingredients are:
1. Kidnapping and abducting of any women
2. Such kidnapping or abducting must be
 With intent that she may be compelled, or knowing it to be likely that she will be
compelled to marry any person against her will
 In order that she may be forced or seduced to illicit intercourse or,
3. It is immaterial whether the women kidnapped is married or not
In Madan Lal vs State, the Rajasthan High Court upheld the decision of trial court that appellant had
taken away to prosecutrix with him from the protection of her lawful guardian with intension to
marry her and knowing fully well that she would be subjected to sexual intercourse therefore he was
liable to be convicted under section 366 A.
In Rathinam vs State7, it was held by the court that "All that this section requires is that the minor
girl or woman should be kidnapped or abducted, as the case may be, for the purpose of being
compelled to marry against her will, and whether the marriage would be valid or not has nothing to
do with the commission of offence.
6
State vs Sunder Singh, (1961) Jab. L.J. 870
7
Rathinam vs State, A.I.R 1967 Mad. 409

3. Whether X is liable for offence of rape under section375 and 376 of Indian Penal Code?
It is humbly submitted before this honourable court that X is liable for the offence of rape as he had
sexual intercourse with the minor girl under the age of 16 years and such sexual intercourse is falling
under clause 6 of section 375 of Indian Penal Code.
Rape is defined under section 375 and punishable under section 376 of Indian Penal Code.
Section 375 of Indian Penal Code provides;
''A man is said to be commit "rape" if he
(a). Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a women or makes
her to do so with him or any other person ; or
(b). inserts, to any extent, any object or part of the body, not being the penis, into the vagina,
urethraor anus of a women or makes her to do so with him or any other person; or
(c). manipulates any part of the body of a women so as to cause penetration into the vagina, urethra,
anus or or any part of body of such women or makes her to do so with him or any other person; or
(d). applies his mouth to the vagina, anus, urethra of a women or makes her to do so with him or any
other person.
Under the circumstances falling under any of the following seven descriptions:-
First. - Against her will.
Secondly.- Without her consent.
Thirdly.- with her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly.- with her consent, when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or or beleives herself to be lawful
married.
Fifthly.- with her consent, when at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying
or unwholesome substance, she is unable to understand the nature and consequences of that to
which she gives consent.
Sixthly.- with or without his consent, when she is under eighteen years of age.
Seventhly. - when she is unable to communicate consent.''
Section 376 : Punishment of Rape:-
10

''Whoever except in case provided for in sub section (2), commits rape, shall be punished with
rigorous imprisonment of either description for a term which shall not less than seven years, but
which may extend to imprisonment for life, and shall also be liable to fine.''
Thus to constitute the offence of rape:
1. Sexual intercourse by a man with a women
2. The sexual intercourse must be under circumstances falling under any of the 7 clauses of section
375.
The present case comes under section 375
 It is most humbly submitted that accused has sexual intercourse with prosecutrix who is a girl
under 16 years of age. It is clearly reflected from the facts that
1. The accused along with prosecutrix surrendered himself
2. Both of them send for a medical examination and investigation revealed sufficient
evidence against the accused.
3. It is further submitted that the prosecutrix is below 18 years of age and according to
clause 6 of section 375 the consent of a minor girl under the age of eighteen years is
immaterial and could not give a valid consent. A girl being below 18 years of age is not
competent to give consent because such child is incapable to decide what is good or what
is bad for her.
In Bhajan Lal vs State of Uttarakhand8, it was held by the court that consent if any of the victim,
is immaterial if she is below 18 years for the purpose of offence under section 375 of Indian
Penal Code.
In Bishnudyal vs State of Bihar9, in this case the girl at the time of intercourse is hardly of 13 or
14 years of age and court held that on question of consent was immaterial as the offence would
fall within clause 6 of definition of rape in section 375 of Indian Penal Code.
In Emperor vs Asad Ali10 it was held that the fact that such girl can discriminate between right
and wrong and had invited the accused to the act are both wholly irrelevant, are wholly irrelevant
for the policy of law is to protect children of such immature age against sexual intercourse.
8
Bhajan Lal vs State of Uttarakhand on 18 April 2013
9
Bishnudyal vs State of Bihar, A.I.R. 1981 SC 39
10
Emperor vs Asad Ali, 29 Cr.L.J. 12
11

In Dolgobinda Rath vs State11, it was held by the court that where the age of the girl is under 16
years, even the consent of the girl does not make any material difference and the act of
cohabitation would constitute the offence under this section.
Hence it is most respectfully submitted that X should be convicted and punished for offences.
11
Dolgobinda Rath vs State, A.I.R. 1958 Orissa 224
12

PRAYER
Wherefore in the light of the Issues Raised, Argument Advanced and Authorities Cited,
the Honorable Session Court may be pleased to :
1. Convict X for the offence of rape and punished under section 376 of
Indian Penal Code.
2. Convict X for the offences under section 361, 366 and punished under
section 363 of Indian Penal Code.
AND/OR
Pass any other order, direction or relief that it deems fit in the interest of Justice, Equity and
Good Conscience.
For this act of kindness, the Complainantt shall duty bound forever pray.
(COUNSEL ON BEHALF OF COMPLAINANT)
13

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CASE CONCERNING ABOUT KIDNAPPING, FORCED MARRIAGE AND RAPE

MEMORANDUM ON BEHALF OF COMPLAINANT

SUBMITTED TO: SUBMITTED

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(COUNSEL ON BEHALF OF COMPLAINANT)

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