i

T TE EA AM MC CO OD DE E A A .. 2 29 9

IN THE HONBLE SUPREME COURT

OF INDIA

3rd FLYC-RANKA NATINAL MOOT COMPETITION,2013

CRIMINAL APPEAL NO. ****/2013 [UNDER ARTICLE 136 OF INDIAN CONSTITUTION] IN THE MATTER OF

MS SHALINI...APPELLANT
VS.

STATE OF RAJASTHAN.....RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONSIV LIST OF AUTHORITIES...V CONSTITUTIONS..V ACTS, CODES AND STATUTES.V INDIAN CASES.V FOREIGN CASES...VIII BOOKS REFERRED....VII DICTIONARIES......VIII STATEMENT OF JURISDICTION.IX STATEMENT OF FACT..X QUESTION PRESENTED.XIII SUMMARY OF ARGUMENT XIV ARGUMENT ADVANCED1 TO 10 1) Whether the Hon`ble High Court has taken a lenient view and whether Punishment of Trial should be restored..............................................................1 a) There was miscarriage of justice by the Honble High Court ...................................................................................1 i) Presumption as to absence of consent in certain prosecution cases..2 ii) Leniency by Hon,ble High Court is wholly misplaced and detterent theory ahould be applied to curb spur in instances of gang rape2 iii) Gravity of offence demands strictest punishment available under the section 376 2(g).3 iv) Joint Liability applicable4
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v) Easy virtues of women no defence and threat to life of the complainant needs to be taken into account..5

2. Whether Bhawarlal should be imprisoned for life for such a henius act.

3.Whether the damages should be restored to that decreed by trial court i)Compensation for violation of fundamental rights ii)Compensation for violation of International Human

Rights.. iii)Compensation for violation of rights under International Convenant on Civil and political rights .. iv)Compensation under 367A of Criminal Procedure Code. PRAYER20

Cr LJ ed. SCC Sec. SCR vs.. Mad. Cr LJ

Criminal Law Journal Edition SupremeCourtCases Section SupplementaryConceptRecord versus

Criminal Law Journal

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ed. SCC Sec. SCR vs.. Mad. Ori. Lrs A.P. Cal Anrs. U.P Ald. Ibid Vol

Edition SupremeCourtCases Section SupplementaryConceptRecord versus Madras Orissa Legal Representatives Andhra Pradesh Calcutta Others Uttar Pradesh Allahabad ibidem Volume

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LIST OF AUTHORITIES

CONSTITUTIONS 1- TheConstitutionof India,1950.

ACTS, CODE AND STATUTES 1- Code Of Criminal Procedure, 1973 2- Indian Evidence Act, 1872 3- Indian Penal Code, 1860 INDIAN CASES 1. Ramesh Kumar and Ors [AIR 2013 SC 733] 2. Salil Bali vs UOI and Anr.[AIR 2013 SC 718].. 3. State of Andhra Pradesh vs Bodem Sundra Rao [AIR 1996 SC

130].. 3. State of Punjab vs Gurmit Singh Ors.[AIR 1996 SC

130]. 4. State of Karnataka vs Krishnappa [AIR 2000 SC

210] 4. Jugendar singh vs State of UP[AIR 2012 SC 485] 5. Sirivalla Srinavasa Rao Ors.(APP) vs State of UP [AIR 2011 SC 933]. 6. Vijay@Chinee v. State of Madhya Pradesh[AIR 2012 SC 522].. 7. Mulla and Anr. Vs. State of Uttar Pradesh[AIR 2010 SC 91].. 8. Pushpanjali vs State of Orrisa.[AIR 2012 SC 780].. 9. Om Prakash vs State of Rajasthan and Anr.[AIR 2002 SC 416] 10. Bipin Bihari Sahu v. State[1982 Cr LJ 2346 (Ori.)]

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11. Minerva Mills Ltd. And Ors. V. UNION OF INDIA AND ORS [AIR 1980 SC 75].. 12. Gopal Reddy v. State of A.P.[AIR 1996 SC 550] 13. Bhupinder Sharma vs State of Himachal Pradesh[AIR 2003 SC 825].. 14. Rafiq vs State of U.P.[AIR 1980 SC 196]. 15. Bharwada Bhogiabhai and Hiribhai v. Sate of Gujrat[AIR 1983 SC 90] 16. Rameshwar v. The State of Rajasthan[1952CriLJ547].. 17. MD Iqbal and ANR v. State of Jharkhand[(2012) 5 SCC 674] 18. Narendra Kumar v. State(NCT of Delhi)[AIR 2012 SC 0481]... 19. Shimbhu vs State of Haryana[AIR2012 SC 1011] . 20. State of Himachal Pradesh v. Raja Mahendra Pal[AIR 1999 SC 1786]. 21. Francis Coralie Mullin v. Administator,Union Territory of Delhi[AIR 1981 746]. 22. Khatri vs State of Bihar[(1981) 1 SCC 627] 23. Rudal sah vs State of Bihar[(1982) 3 SCC 131].
24. D.K Basu vs State of W.B.[(1997) 1 SCC 416]

SC

23 Maneka

Gandhi

vs.Union

of

India

[(1978)

SCC

248]

...

24 Md. Hussainvs.DalipSinghji[AIR 1970 SC 45].. 25 Md.Yasinvs. King Emperor[ILR (1901) 28 Cal. 689] .. 26 Mohd. Khalid vs. State of West Bengal[(2002) 7 SCC 334].. 27 Munna Devi vs. State of Rajasthan [AIR 2002 SC 107] 28 NandaniSatpathyvs. P.L. Dani[AIR 1978 SC 1029]...

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29 Nazir

Khan

and

Anrsvs.

State

of

Delhi[(2003)

SCC

461]. 30 ParmanandaPeguvs. State Of Assam[(2004) 7 SCC 779]... 31 PromothaNathvs. Emperor[AIR 1923 Cal. 470].. 32 PyareLalvs. State of Rajasthan[AIR 1963 SC 1094].. 33 R vs.Lakshman[1882 (6) Bom. 124]. 34 R.B. Mithanivs. State of Maharastra [AIR 1971 SC 1630].... 35 R.S Bhagatvs. Union of India[(1980) ILR Del. 1422].. 36 Rajeshwarivs.PuranIndoria[(2005) 7 SCC 60].. 37 Ram Tossavs. State of Assam[2012 (3) GLD 69]... 38 Re SheobhajanAhir and others vs. King Emperor[AIR 1921 Pat. 499]. 39 RovolaGopaiahvs. Government of A.P [MLJ: YD 1978 Suppl C

23].................................. 40 S.N. Mukherjee vs. Union of India [(1990)

4 SCC 594]..

41 SatishMehravs.

Delhi

Administration

and

Anr[(1996)

SCC

766]. 42 Sawarn Singh Rattan Singh vs. State of Punjab [AIR 1956 SC 537]. 43 Shankaranvs. State of Delhi [(1990) CrLJ 550 (Del.)].. 44 Shankariasvs. State of Rajasthan[(1978) 4 SCC 453]

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45 Sheoraj Singh Ahlawat and Ors.vs.State of U.P. and Anr[(2012) 1 RCR (cri.) 153] 46 Siddharthvs. State of Bihar[(2005 12 SCC 545] . 47 Siemens Engg.& Mfg. Co. vs. Union of India [(1976)
2 SCC 981]..

48 State Anti-Corruption Bureau, Hyderabad and Anr. vs. P. Suryaprakasam[(1999) SCC criminal 373].. 49 State of Karnatkavs.Muniswami[(1997) 2 SCC 699].. 50 State of Maharashtra vs.PriyaSharanMaharaj and Anrs[(1997) 4 SCC 393] 51 State of Tamil Nadu vs.Kutty alias Lakshmi Narashinhan[(2001) 6 SCC 550].. 52 State of U.P.vs.ShriKishan[(2005) 10 SCC 420]... 53 SubramaniaGoundanvs.The State of Madras[AIR 1958 SC 66]. 54 Sugumaranvs. State[1987 (2) Crimes. 691 (Mad.)].. 55 Superintendent and Remembrancer of legal Affairs, West Bengal vs.. Anil Kumar Bhunja and Anrs[1979 CrLJ 1390 SC]. 56 Thakur Das (Dead) by Lrs.vs.State of Madhya Pradesh and Anr [(1978) 1 SCC 27]........ 57 U.P. AvasEvamVikasParishadvs.SheoNarainKushwaha and Ors[(2011) 6 SCC 456] 58 ZahiraHabibullah Sheikh &Anrvs. State Of Gujarat & Ors[(2006) 3 SCC 374]. FOREIGN CASES 1. Alexander Machinery (Dudley) Ltd. vs.. Crabtree[1974 LCR 120] 2. Breen vs. Amalgamated Engineering Union[(1971) 1 All ER 1148]. 3. Brutonvs. US[391 US 123]...

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4. R vs. Thomson[1836 (1) Mood CC 465].. 5. State vs. Mullin[85 NW 2ND 598].. BOOKS REFERRED 1. C.K.Thakkar Takwani, Code of Criminal Procedure (3rd Ed., Lexis

NexisButterworthsWadhwa, Nagpur, 2012). 2. Chief Justice M. Monir, Law of Evidence (14th edition, Universal Law Publishing House New Delhi, 2006). 5. D.D.Basu, Commentary on Constitution of India (8th ed., Wadhwa and Company, Nagpur, 2010). 6. D.N.Sen, The Code of Criminal Procedure (Premier Publishing Company, Allahabad, 2006). 7. H.M.Seervai, Constitutional Law of India(4th ed. Universal Publishing House, New Delhi, 2007). 8. 3. I.P. Massey, Administrative Law(7th ed. Eastern Book Company, Lucknow, 2008). Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, Code Of Criminal Procedure(17th Ed., Wadhwa and Company, Nagpur, 2007). 4. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, The Law Of Evidence (22nd Ed., Wadhwa and Company, Nagpur, 2007).

DICTIONARIES 1. Brayan A. Garner, Blackslaw dictionary(9thed. Thomson West,2009). 2. The International Websters New Universal Dictionary (2nded. Trident Press International, USA, 1983). 3. P. RamnathaIyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010).

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STATEMENT OF JURISDICTION
The appellant has approached to the Honble Supreme Court of India through Article 136 of the Constitution of India, 1950. The matter is now posted for the final hearing before the Honble Court.

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STATEMENT OF FACTS

Ms Shalini aged about 20 years , The complainant was a nursing student and was living in a Government Women Nursing College Hostel at Jaipur. On 30th June 2009 while the complainant came out of her room in the front lawn of the hostel , the main accused, Shri Bhawarlal, aged about 30 year a chowkidar/ night watchman in the hostel and Shri Tribhuvan, aged about 18 years, a spoilt multimillionaire student, kidnapped her at about 11 P.M. and forcibly carried her in chowkidars room behind the hostel II Two students namely Mohan aged 22 years, son of a local M.L.A. and Sohan aged 20 years, close relation of Central Miniser, were drinking heavy liquor. As the summer vacation was commenced from 1.6.2009, hardly 3 or 4 students in Hostel with a capacity of 100 inmates. The lady Warden had left for her home and no other employee was there . Bhawarlal kidnapped the complainant , the complainant mouth and body was tied with cloth. She was given intoxicant

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with drug forcibly put on mattress and was raped by Tribhuwan , Mohan, Sohan and Bhawarlal. After gang rape, in a naked(unconscious) condition, the complainant was thrown outside the backside of boundary wall of the hostel at about 4.00 a.m III At about 5.00 A.M, the complainant came to little senses and was noticed by certain passer by. She was carried to nearest police station being crime no. 966 of 2009, where FIR could be lodged with much difficulty and on intervention of police commissioner. Case under section 363 and 376(2)(g), was registerd against the four accused. Wide publicity was given by electronic media in local newspaper and on its T.V. The complainant was given in the government hospital and was released after two weeks. The chowkidar , Bhawarlal and other three accused could be traced out haviely drunk sleeping in the chowkidars room.

IV In Panchnamah, the list of article confiscated by the Invistigation Officer viz torn out kurta , payjama, panty,hawai chappal, non-vegitarian food items,tumblers, liquor bottle,cigarettes, hukka with tobacco and match box, other intoxicants, sharp knife weapon, cash10,000/-+ R.s 50,000/-etc. On the checking of call list it was found(1) there had been call between the 4 accused in the evening at about 7.00 P.M.(2) Two missed call were by Tribhuwan to the complainant on 29.5.2009.Exibhit A-2. A classic car Mercedes register in the name of Tribhuvans father and the driving license of Tribhuvan were apart from a motor bike in the campus .In the car 1 bottle foreignwas also found with bed sheet, carpet, cosmetics, cigar, etc. The complainant was required to undergo medical examination within 12 hour. V The accused was also required to undergo sperm detection test. A case u/s. 376(2)(g) with sec 364A of Indian penal code was registered against the 4 accused. After investigation the three accused were arrested. Shri Tribhuvan was absconding and later arrested. VI

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The complainant sought a death sentence for Bhawarlal and damages of 20 lacs under section 357 and 357A of the criminal procedure code with costs. The session court held that Shree Bhawarlal to undergo the rigorous imprisonment of life. Shree Mohan undergo the ten years rigorous imprisonment. Shree Sohan undergo simple imprisonment for 7 years.Shree Tribhuvan exempted from punishment. VII The complainant as well as respondent was not satisfied by the decision of session court so she appeals in high court. Again both the complainant and respondent was not satisfied by the decision of high court so they appeal in a supreme court.

QUESTION PRESENTED

I.

WHETHER THE HONBLE HIGH COURT

HAS TAKEN A LENIENT VIEW AND WHETHER

PUNISHMENT BY TRIAL COURT SHOULD BE RESTORED?

II.

WHETHER BHAWARLAL SHOULD BE IMPRISONED FOR LIFE?

III.

WHETHER DAMAGES AWARDED BY TRIAL COURT SHOULD BE RESTORED?

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SUMMARY OF ARGUMENTS 1- . Whether the Hon`ble High Court has taken a lenient view and whether Punishment of Trial should be restored. It is humbly submitted by the appellant the Honble High Court was not justified in diminishning the sentence of the accused as the crime being of a very heinous nature. It is submitted that there was miscarriage of justice in awarding punishment. The special and adequate reasons under 376 2 (g) not take into account properly.. 2- Whether Bhawarlal should be imprisoned for life for the henious act. It is humbly submitted by the appellant that the offence by Bhanwarlal is of heinous nature and the maximum punishment under 367 2(g) should be awarded.To curb the growing menance of gang rapes in Indian society in the recent years maximum punishment should be given to deter criminals and restore social security and commensurate with the offence. 3-. Whether the damages should be restored to that decreed by trial court

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It is humbly submitted by the appellant that the damages awarded by the trial court should be restored,in view of the blatant violation of Fundamental Rights,European Convention for the Protection of Human Rights,International Convenant on Civil and Political Rights and the compensation under section 367 A of Criminal Procedure Code keeping in view the psychological trauma and further rehabilitation expenses.

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ARGUMENT ADVANCED
1-Whether the Hon`ble High Court has taken a lenient view and whether Punishment of Trial should be restored. The Honble High Court was not justified in diminishing the punishment,awarded by the Ld. Session Court and there was miscarriage of justice. a-There was a miscarriage of justice made by the Honble High Court. It is submitted by the appellant that there was a miscarriage of justice made by the Honble. High Court and the punishment awarded was not commensurate with the heinous offence.After the Criminal Ammendment Bill 2013,a section 114 A was adduced in the Indian Evidence Act,1872,which presumes no consent on part of the prosecutrix unless proved otherwise which states:1[ Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub- section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent1. The ratio decidendi by the High Court in diminishing punishment awarded to the accused does not stand because the section 114 A clearly states the presumption,moreover rape being a sexual offence,mostly committed in secrecy,demands absence of primary of eyewitness and can be misued to escape maximum punishment as in this case

(i) Presumption as to absence of consent in certain prosecution cases The Honble Supreme Court in a pleothra of cases have ruled about the presumption of no consent. In the case of Bhupinder Singh vs State of Himachal Pradesh,observed that In cases of gang rape , the proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation 1 in relation to Section 376 (2) (g), I.P.C. appears to have been done with a view to effectively deal with the growing menace ofgang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the of rape by each
1

Section 114 A,Indian Evidence Act ,1872

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one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rapeand convict them under Section 376, I.P.C.In the case of Kamal Kishore vs State of H.P,the court defined special and adequate reasons mentioned in 376 2 (g) as Reasons which are general or common in many cases cannot be regarded as special reasons,and absence of primary eyewitness in sexual offences is common as sexual offences are mainly commited in privacy. Also in the case of Banti alias Balvinder Singh vs State of MP2,th Honble Supreme Court observed that A woman, howsoever dissolute she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual intercourse on her by a number of persons, as if she were a chattel for public use. The law recognises that a woman even of easy virtue, or even a whore for that matter, has personal dignity and honour. She cannot be violated, if only because of her lowly profession. A presumption has been enacted in section 114A of the Evidence Act which says that in a case, inter alia,of gang rape, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Hence, the legal position is that if the fact of sexual intercourse by the accused is proved, the evidence of the woman in a case of gang rape that she did not consent to sexual intercourse would have to be believed and it will not help the defence merely to show that the woman was of easy virtue. It is true that the presumption about want of consent is not conclusive. Evidence may still be given to disprove it. But in the absence of any evidence of disproof, there is no option with the Court but to raise a presumption about non-consent if circumstances for raising the presumption under section 114A exist. It must, however, be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse.In the case of Bharwadabosigai vs State of Gujarat3,supreme court observed that in the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.In the case of State of HP vs Asha Ram4, the Court highlighted the importance to be given to the testimony of the prosecutrix as under para 5 It is now well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured
2 3

AIR 2003 SC 0825 AIR 1983 SC 0090 4 AIR 2005 SC 1982

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witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a wellsettled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.In Vijay@chinee vs State of MP5,After discussing the entire case law, this Court concluded in paragraph 14 of the Report as follows,the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.In the case of J Rameshwar vs State of Rajasthan6,the court highlighted ;The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge.In the case of Narendra Kr. Vs State7(NCT of Delhi),the court observed that , this Court has
observed that even if a woman is of easy virtues or use to sexual intercourse, it cannot be a licence for any person to commit rape. (ii)Leniency

by Hon,ble High Court is wholly misplaced and detterent theory ahould be applied to curb spur in instances of gang rape It is humbly submitted by the appellant that the leniency by the Honble High Court is wholly misplaced.In the recent verdict of Supreme Court,in case of , Shimbhu and Anr. Vs State of Haryana8it observed that the punishment in cases of rape must be commesurate with its gravity,there cannot anything grave than this offence as the prosecutrix was in a vegetative state,except for the loss of life of the prosecutrix which attracts death penalty also.In Mulla and Anr. Vs State of U.P9.,the court highlighted the objective of punishment as the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishments as being a deterrent or reformative or preventive and nothing else.... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not. The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the
5 6

AIR 2010 SC 0522 AIR 1952 SC 0036 7 AIR 2012 SC 0481 8 AIR 2012 SC 1012 9 AIR 1998 SC 0786

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actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided10 In the case of Pushpanjali vs State of Orrisa11,where the rape was committed by a security guard,the SC observed that the court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. If for the extremely heinous crime of gang rape perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will fail,the court needs to keep in mind the accused acted without any provocation.In the case of Srinivasa Rao vs State of AP12, A victim of gang rape inevitably suffers acute trauma and it was some time before such a victim was in a position to make a lucid and sensible statement Moreover, rape itself brings enormous shame to the victim and it was after much persuasion that a rape victim goes to the police station to lodge a report and if some delay if occasioned that cannot in any way detract from the other credible evidence.In the case of Jugendra Singh vs State of UP13,the court observed Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the Appellant is excessive or deserves to be modified. The cases of rapes and gang rapes are increasing monstrously and needs to dealt with an iron hand to ensure basic fundamental rights of the Indian Constitution and social security to women. (iii)Gravity of offence demands strictest punishment available under the section 376 2(g) It is humbly submitted that the gravity of the offence in this case demands strictest punishment available in the aforesaid section,and the disregard and fearlessness towards law by the accused is clearly manifested in their conduct.In the case of State of Punjab vs Gurmit Singh14 ,the SC observed that society in cases of the heinous crime of rape on innocent helpless girls of tender years should be responded by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was further observed that to show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced.In the case of Krishnappa vs State of
10
11 12

Halsbury's Laws of England, (4 Edition: Vol. II: para 482)

th

AIR 2012 SC 1439 AIR 2009 SC 0671 13 AIR 2012 SC 0485 14 AIR 1996 SC 0366

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Karanataka15,a three bench judge stated with anguish that crime against women in general and rape in particular is on the increase. The learned Judges proceeded further to state that it is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection of the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. Thereafter, the Court observed the effect of rape on a victim with anguish: We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.The court further in State of AP vs Bodem Sundra Rao16 stated that In recent years, we have noticed that crime against women are on the rise. These crimes are affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The henious crime of committing rape on a helpless girls shakes our judicial conscience.In the Minerva Mills vs Union of India17,the object of law was beautifully defined by the then CJ, The promise of a better tomorrow must be fulfilled today, day after tomorrow it runs the risk of being conveniently forgotten. Indeed so many tomorrows have come and gone without a leaf turning that today there is a lurking danger that people will work out their destiny through the compelled cult of their own 'dirty hands,the Honble Court if gives a verdict commensurate with the heinous crime the tomorrow it can act as a precedent to convict the destroyers of the social fabric of the society and who ruin lifes of innocent helpless girls.In the cases of rape the conviction occurs in less than 1% cases,this abysmal performance needs to change drastically.With this record,it is a miracle that women still come forward with their complaints and the sexual offences by age group of 18-30 is the highest i.e 162118.
(iv) Joint

liability in gang rape cases

In the case of Ashok vs State of Haryana19 the court went on to state that . Charge against the
Appellant is Under Section 376(2)(g) Indian Penal Code. In order to establish an offence Under Section 376(2)(g)Indian Penal Code, read with Explanation I thereto, the prosecution must adduce evidence to
15 16

AIR 2000 SC 0210 AIR 1995 SC 1145 17 AIR 1980 SC 0075 18 NCRB Crime in India 2012 Report 19 AIR 2002 SC 734

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indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rapeby each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence.In the case of Jugendra Singh vs State of U.P20 the court stated , the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the Appellant is excessive or deserves to be modified. The learned Counsel for the Appellant would submit that the Appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. The other ground that is urged is the background of impecuniosity. In essence, leniency is sought on the base of aforesaid mitigating factors. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is
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AIR 2012 SC 0485

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aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned Counsel for the Appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court. Ex consequenti, the appeal, being sans merit, stands dismissed. 2-Whether the damages should be restored to that decreed by trial court a.Compensation for violation of fundamental rights- Part III of the Constitution is rightly described as magna carta of India. It contains a long and comprehensive list of justiciable Fundamental Rights.Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the power delegated by them to their Government. The Fundamental Rights are meant for promoting the ideal of political democracy. They prevent the establishment of an authoritarian and despotic rule in the country and protect the liberty and freedom of the people, against the invasion by the State. The Fundamental Rights are named so because they are guaranteed and protected by the Constitution, which is the fundamental law of the land. They are fundamental also in the sense that they are most essential for the all-round development of the individuals. Any infringement of these rights is the disrespect or a shame towards the framers of Constitution and needs to be dealt with an iron hand.Article 21 of the Indian Constitution states that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The violation of the right to livelihood is required to be remedied. But the right to livelihood as contemplated under article 21of the Constitution cannot be so widely construed which may result in the defeating the purpose sought to be achieved by the aforesaid article. In the case of Sate of HP vs Mahendra Pal21 the court observed that it is also true that the right to livelihood would include all attributes of life but the same cannot be extended to the extent that it may embrace or take within its ambit all sorts of claim relating to the legal or contractual rights of parties completely ignoring the person approaching the court and the alleged violation of the said right In the above case the freedom to life and liberty,right to live with human dignity. the A question regarding the awarding of monetary compensation through writ jurisdiction was first

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AIR 1999 SC 1786

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raised before the Supreme Court in Khatri (II) v. State of Bihar22 In this case, Bhagwati, J. observed: "Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty."2 Regarding the liability of the State to pay compensation for infringing Article 21, the Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its significant content. The Court further observed that where there are issues of the gravest constitutional importance involving as they do the exploration of a new dimension of the right to life and personal liberty, it has to lay down the correct implications of the constitutional right in Article 21 in the light of the dynamic constitutional jurisprudence, which the Court is evolving.Hence the accused needs to be compensated on account of this violation. b.Compensation for Ostentatious violation of human rights:-_ International human rights are the rights a person is entitled to from the birth by the virtue of his/her being a human, and these rights are unvarying and fundamental across the globe, standardised by International Bill of Rights. Human rights are inalienable-you cannot lose these rights any more than you can cease being human. Human rights are indivisible-you cannot be denied a right because it is less important than another right. Human rights are interdependent-all human rights are part of a complementary framework. Rhonda Howard has worded that, "...dignity is not a claim...rather it's granted at birth or on incorporation into the community...it's the inner moral worth of a person..." Dignity is, therefore, the inviolable premise of human rights Article 3 of the Internatinal Bill of Human Rights provides the right to life, dignity and security Article 12 of the Internatioanal Bill of Human Rights maintains that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, not to attacks upon his honour or reputation. Article 17 provides The right to freedom from torture or cruel or inhuman treatment is protected . The Supreme Court of India in Rudul Sahv. State of Bihar23 brought about a revolutionary breakthrough in human rights jurisprudence by granting monetary compensation to an unfortunate victim of State lawlessness onprovisions of this article shall have an enforceable right to compensation". This right must be provided for within the national legal system, that is, a remedy must be made available under the domestic law and enforceable in a domestic court. The basic duty of the State is to ensure that a breach of Article 5 may be remedied by way of compensation in the domestic legal system. Where, under the law of a State the Convention
22 23

(1981) 1 SCC 0627 1983 4 SCC 141

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forms part of the law of the land, there is less likelihood of difficulty in complying with this paragraph, but where "transformation" or specific adaption is required constitutionally, and if this has not occurred, a problem may arise. In the case of Brogan 24and others of 1988, the detention of the applicants had been in conformity with British law but was ruled to have breached the Convention provisions. The Court rejected the UK Government's argument that "lawfulness" referred to in the text applied only to domestic law. Thus compensation was payable, and failure to provide this as of right resulted in a breach of the article.6But even where the Convention is part of the law of the land, the Human Rights Commission and Human Rights Court at Strasbourg have the duty to consider the legal effect of incorporation to ensure that the practical result was indeed to confer an effective right on individuals to compensation, a point made in the 1989 case of Ciulla v. Italy7 c.Violation of International Convenant of Civil and Political Rights:- Article 9(5) of the International Covenant on Civil and Political Rights of 1966 indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) reads as follows: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." India adopted the Covenant with a reservation regarding the enforceable right to compensation. The Declaration by the Government of India dated 10-4-1979 in respect of Article 9(5) is as under: Declaration II.-With reference to Article 9 of the International Covenant on Civil and Political Rights, the Government of the Republic of India takes the position that the provisions of the article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India. Further under the Indian legal system, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State. The Supreme Court of India in D.K. Basu made the following observation with reference to the above Covenant: The Government of India at the time of its ratification of International Covenant on Civil and Political Rights, in 1979 had made a specific reservation to the effect that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention and thus did not become a party to the Covenant. That reservation, however, has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen.

24

Ibid,p.438,para 432

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d.Compensation under 367 A of the Criminal Procedure Code,1973:- The court in awarding damages needs keep in mind the mental and physical torture that she has gone by this incident and will clinch her throughout her life.The court also needs to keep in ind the medical complexities which may arise in future from this gruesome act and the further chances of being ostracized by the society and being abandoned by the parents.Also career prospects that are affected by this grotesque act and the expenses which she might encounter.The counsel would present before the court that why should an innocent girl and her family bear the expenses that was of an unprovoked act.

PRAYER

Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities cited, it is most humbly prayed and implored before the Honble Court, that it may be graciously pleased to adjudge and declare1. Honble High Court was not justified in taking a lenient view for a heinous act and punishment of trial court should be restored. 2. Honble High Court should award life imprisonment to Bhanwarlal. 3. Compensation awarded by trial court should be restored

All of which is most humbly and respectfully submitted.

COUNSEL FOR THE APPELLANT

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