Rgnul Curriculum Moot 2016

TEAM- 15

IN THE COURT OF SESSIONS

THE STATE
(PROSECUTRIX)
V.

THE ACCUSED
(RESPONDENT)

IN SUBMISSION OF PARTIAL FULFILMENT OF 9 SEMESTER

TH

RGNUL CURRICULUM MOOT 9 SEMESTER (5 YEAR)

TH

MEMORIAL FOR THE RESPONDENT

-THE ACCUSED-

TH

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TABLE OF CONTENTS

Table of Contents....................................................................................................................... 1
Table of Authorities....................................................................................................................2
List of Abbreviations..................................................................................................................3
Statement Of Jurisdiction...........................................................................................................4
Statement Of Facts.....................................................................................................................4
Summary of Arguments............................................................................................................. 6
Arguments Advanced.................................................................................................................7
I.The Accused is not liable to be charged under Section 366(a) and 376 of the Indian Penal
Code....................................................................................................................................... 7
II.The Accused is not liable to be charged under Section 4 r/w Section 3 of Posco Act,
2012......................................................................................................................................10
Prayer and Conclusion............................................................................................................. 11

TABLE OF AUTHORITIES
CASES
1. Sahil Thakur v. State of Himachal Pradesh Cr. M.P.(M) No. 798 of 2015.
2.

Nandu Mandal, Yogendra Mandal S/o late Chulai Mandal and Vinay Ram v. State of
Bihar Cr.Misc. No.10356 of 2011.

3. State of Karnataka v. F. Nataraj 2008(56)BLJR2583.

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4. Sannaia Subba Rao v. State of A.P

LIST OF ABBREVIATIONS
&

And

AIR
KLJ
Mad
MLJ
Cal
Del
CrLJ
Kar
UP
Bom.
P& H
Har
Him.
WB
RCR
SC

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STATEMENT OF JURISDICTION
The respondent has approached the Honble Court of Sessions under Section 28 1 of POSCO
ACT, 2012 read with Section 184(a) and Section 220 of the Code of Criminal Procedure,
1973.

1Designation of Special Courts : (1) For the purposes of providing a speedy trial, the State Government shall in
consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each
district, a Court of Session to be a Special Court to try the offences under the Act:
Provided that if a Court of Session is notified as a childrens 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.
(2) While trying an offence under this Act, a Special Court shall also try an offence other than the offence
referred to in subsection
(1), with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act,
2000, shall have jurisdiction to try offences under section 67B of that Act in so far as it relates to publication or
transmission of sexually explicit material depicting children in any act, or conduct or manner or facilitates abuse
of children online.

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STATEMENT OF FACTS
PARA I
Victims family was residing at Patiala. She (victim) was hardly Seventeen years old at the
time of occurrence. She was studying 11th standard and at that time accused became
acquainted with her. During the month of December 2013, on account of her ill-health, she
stopped her studies. On 15.02.2014, during night hours, she had gone to a church at patiala.
The accused met her near the church and expressed his desire to marry her. He also requested
her to come on the next day at 06.00 AM to Kali Devi Temple. Accordingly, when she went
there, the accused took her in a bus to Bathinda.
PARA II
The accused took her to a rented house, which was in his occupation. He gave promise to her
that he would marry her. On that day, the accused attempted to have sexual intercourse with
her. But, she declined to give consent. With a view to get consent from her, the accused told
her that since he was surely going to marry her, there was nothing wrong in having sexual
intercourse with him. By giving such assurance, the accused had repeated sexual intercourse
with her.
PARA III
When her mother could not locate her, she proceeded to Police Station Model Town Patiala to
make a complaint. Case was registered after finding the accused under Section 366(A), 376
of the Indian Penal Code, 1860 and Section 4 of the POCSO Act, 2012.

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QUESTIONS PRESENTED
I.

WHETHER

THE

THE INDIAN

II.

WHETHER

ACCUSED

IS LIABLE TO BE CHARGED UNDER

SECTION 366(A)

AND

376

OF

PENAL CODE?

THE

ACCUSED

IS

LIABLE

TO BE CHARGED UNDER

SECTION 4

OF THE

POSCO

ACT, 2012?

SUMMARY OF ARGUMENTS
I.

Firstly, the Accused is not guilty under Section 366(a) of the Indian Penal Code.
Secondly, the Accused is not liable to be charged under Section 376 of the Indian
Penal Code.

II.

The Accused is not liable to be charged under Section 4 of POSCO Act, 2012.

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ARGUMENTS ADVANCED
I.

THE ACCUSED
376

OF THE

IS NOT LIABLE TO BE CHARGED UNDER

SECTION 366(A)

AND

INDIAN PENAL CODE

It is submitted that the Accused is not liable to be charged under Section 366(a) and 376 of
the Indian Penal Code, 1860. On 15.02.2014, during night hours, she had gone to a church at
patiala. The accused met her near the church and expressed his desire to marry her and
requested her to come on the next day at 06.00 AM to Kali Devi Temple.

When she went

there, the accused took her in a bus to Bathinda and took her to a rented house, which was in
his occupation. He gave promise to her that he would marry her.3 On that day, the accused
attempted to have sexual intercourse with her. With a view to get consent from her, the
accused told her that since he was surely going to marry her, there was nothing wrong in

2Moot Proposition 15, line 5.

3Moot Proposition 15, line 7.

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having sexual intercourse with him. By giving such assurance, the accused had repeated
sexual intercourse with her.4
The charge levied against the accused in the form under Section 366(a) of the Indian Penal
Code is not valid. Section 366(a) states thatProcuration of minor girl.Whoever, by any means whatsoever, induces any minor girl
under the age of eighteen years to go from any place or to do any act with intent that such
girl may be, or knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall be punishable with imprisonment which may extend to
ten years, and shall also be liable to fine.
In a similar case of Sahil Thakur v. State of Himachal Pradesh5 it was observed that it was
the prosecutrix, who travelled far and distant places to be with the petitioner and she has
remained with him for more than five days without any protest. Not only did she travel a
distance of more than 150 KM and stayed with the petitioner, that too, in a hotel at Solan
(Oachghat), but later she even accompanied the petitioner for a joy-ride to Chandigarh. In
such background, the allegations set out by the prosecutrix cannot be taken at the face value
and have to be taken with a pinch of salt.
In the Judgement, Revision vs By Adv. Sri.V.Binoy Ram A reading of section 366(a) shows
that in order to attract the said provision, a minor girl aged below the age of 18 must be
induced to go from place to place or to do any act with the intent that she will be forced to do
illicit intercourse with any other person. It is clear from a reading of the said provision that it
is necessary to have the involvement of at least three persons to attract the said provision. It
is attracted when a minor girl is procured by one person for the seduction of sexual

4Moot Proposition 15, line 10.

5Cr. M.P.(M) No. 798 of 2015.

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intercourse by a third person. If a person induced a minor girl to go along with him and had
sexual intercourse with her, section 366(a) cannot have any application.
Conviction of the accused for the offence punishable under section 366(a) as
confirmed by the lower appellate court is set aside and so also the sentence awarded
by the lower appellate court for the said offence. It is held that he is not guilty of the
offence under section 366(a) of IPC. He is acquitted of all charges under section
366(a) levelled against him. He is set at liberty.

The stand of the prosecutrix regards to Section 376 is also not valid. Section 376 states thatPunishment for rape (1) 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.
(2) Whoever, (a) being a police officer commits rape (i) within the limits of the police
station to which he is appointed; or (ii) in the premises of any station house whether or not
situated in the police station to which he is appointed; or (iii) on a woman in his custody or
in the custody of a police officer subordinate to him; or (b) being a public servant, takes
advantage of his official position and commits rape on a woman in his custody as such
public servant or in the custody of a public servant subordinate to him; or (c) being on the
management or on the staff of a jail, remand home or other place of custody established by
or under any law for the time being in force or of a womans or childrens institution takes

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advantage of his official position and commits rape on any inmate of such jail, remand home,
place or institution; or (d) being on the management or on the staff of a hospital, takes
advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman
when she is under twelve years of age; or (g) commits gang rape, shall be punished with
rigorous imprisonment for a term which shall not be less than ten years but which may be for
life and shall also be liable to fine: Provided that the Court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.
This can be substantiated by the case of State of Karnataka v. F. Nataraj6 where it was
observed that it would be erroneous to rely upon the sole testimony of the prosecutrix without
any corroboration of medical evidence and the accused should be given benefit of doubt.
Therefore, in regards to the present case the allegations of prosecutrix as to sexual intercourse
do not hold merit.
In the case of Sannaia Subba Rao v. State of A.P7 it was held, to constitute an offence under
Section 366A prosecution should prove and establish by cogent and reliable evidence that a
minor girl under the age of 18 years was induced to come from one place to the other with
the intention that such girl may be, forced to have illicit intercourse with another person.
Chief ingredient is that the girl is made to go from one place to other with the intention or
knowledge that she may be forced to illicit intercourse. In the present case, evidence on
record does not reveal any such intention. Prosecution has not been able to conclusively
prove and establish by cogent evidence that the prosecutrix was kidnapped by Accused
persons with the intention of having sexual intercourse with them or with any other person.
62016(1) ACR500.
72008(56)BLJR2583.

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II.

THE ACCUSED
3

OF

IS NOT LIABLE TO BE CHARGED UNDER

SECTION 4 R/W SECTION

POSCO ACT, 2012

It is submitted that the accused is not liable to be charge under Section 4 r/w Section 3 of
POSCO Act, 2012. Section 3 reads as followsPenetrative sexual assault : A person is said to commit "penetrative sexual assault" if (a)
he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or
makes the child to do so with him or any other person; or (b) he inserts, to any extent, any
object or a part of the body, not being the penis, into the vagina, the urethra or anus of the
child or makes the child to do so with him or any other person; or (c) he manipulates any
part of the body of the child so as to cause penetration into the vagina, urethra, anus or any
part of body of the child or makes the child to do so with him or any other person or (d) he
applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so
to such person or any other person. And Section 4 deals with the punishment for such
penetrative sexual assault.

In the POSCO Act Section 2(d) defines "child" means any person below the age of eighteen
years. Reference has to be made of Section 22 of POSCO Act which states

Punishment for false complaint or false information: (1) Any person, who makes false
complaint or provides false information against any person, in respect of an offence
committed under sections 3, 5, 7 and section 9, solely with the intention to humiliate, extort
or threaten or defame him, shall be punished with imprisonment for a term which may extend
to six months or with fine or with both. (2) Where a false complaint has been made or false
information has been provided by a child, no punishment shall be imposed on such child.

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It is submitted on behalf of the Respondent that the Prosecution with the intention to humiliate
and defame the respondent is making a false complaint of penetrative sexual assault and
therefore the allegations stand void ab initio.
In Krishna Pada Mahato vs. State of West Bengal 2005 (3) Crimes 644, victim was
about 16 years of age.
There was love affair between the victim and accused. It was alleged that one day
accused had sexual intercourse with the victim forcibly and when she raised
objection, accused told her that he will marry her soon. Thereafter, accused and
victim continued to meet and have sex on several occasions. In these facts, Calcutta
High Court held as under:
"The evidence and circumstances also supports that the victim had full consent in
sexual intercourse with the appellant as from January, 1991 to 4th August, 1991. She
had regular sexual intercourse with the appellant but did not report anything to her
parents. She even did not report to her parents about her pregnancy during initial
stages. On 4th August, 1991 when she last met with the appellant on that date also
she enjoyed sexual intercourse with the appellant as it transpired from her evidence.
She reported it to her mother only when the appellant refused to marry her. Relying
on the decisions cited above by the learned Advocate of the appellant I am of opinion
that in the instant case there was no misconception of fact and the victim being a full
grown lady voluntarily consented to having sexual intercourse with the appellant.
Her evidence also reveals that the appellant once disclosed to marry her but he could
not marry her as his father objected to the marriage. It establishes that there was no
misconception of fact in the instant case and the victim was a consenting party and
her conduct was nothing but an act of promiscuity on her part."
In Kuber Chandra Das vs. State of Bihar, 2004 Crl. L.J. 4776, prosecutrix was aged
about 17 years. She continued to have sexual intercourse with the accused for a long
period on the assurance and promise that he would marry her, until one day accused
refused to solemnize marriage with her. In these facts, Jharkhand High Court has
held as under:
"It is crystal clear as per the testimony of PW 1, the informant that it is a case where
on her own showing the informant was willing and fully consenting party to the act
of sexual intercourse with, the appellant. It also appears that she continued without
any protest demur on objection with the affair of having sexual intercourse with the
appellant since much prior to the alleged occurrence. In this view of the matter the

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allegation that the informant was made to have sexual intercourse with the accused
on the assumption based on an assurance and promise or giving out an
understanding that appellant would marry her cannot amount to the lack of consent
so far as the informant is concerned. Here PW 1, the informant is a major woman
and if she gives consent even on any of the aforesaid assumptions and thus she has
sexual intercourse with the appellant she will be under all circumstances and in all
respect considered to be a consenting party. This consented sexual intercourse
continued for a long period prior to the occurrence and until the day of reckoning
when she filed this case on assumption that the appellant has cheated her by refusing
to solemnize his marriage with her. Therefore, in the facts and circumstances of this
case the Informant is deemed to have given consent so far as sexual intercourse
between her and the appellant is concerned and such consent cannot be called as an
illegal consent so far as the applicability of Section 376 of the Indian Penal Code is
concerned. Viewed thus, in such a situation the appellant cannot be deemed to have
even prima facie committed the offence of rape under Section 376 of the Indian
Penal Code."

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PRAYER AND CONCLUSION

Wherefore in the light of issues raised, arguments advanced, reasons given and authorities
cited, the Respondent respectfully requests the Court to adjudge and declare that:
A.

THE ACCUSED

IS NOT LIABLE TO BE CHARGED UNDER

SECTION 366A

AND

376

OF THE

INDIAN PENAL

CODE

B.

THE ACCUSED IS NOT LIABLE TO BE CHARGED UNDER SECTION 4 OF THE POSCO ACT, 2012.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY, JUSTICE AND GOOD CONSCIENCE.

AGENTS FOR THE RESPONDENT