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IN THE HIGH COURT OF DELHI AT NEW DELHI

WRIT, CRIMINAL APPELLATE JURISDICTION

NO.___ OF 2017

IN THE MATTER BETWEEN

WILLY, REDWANE & ORS. ….APPELLANTS

V.

STATE OF DELHI ….RESPONDENTS

MEMORANDUM ON BEHALF OF THE RESPONDENTS

[This Memorandum has been prepared for Respondents/Defandant : Willy, Redwane, Stella,
Helena and Social Vigilante Group (SVG)
[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

STATEMENT OF FACTS

PART-I

1. The law is based upon common law of India, the laws are that of India which include The
Narcotic Drugs and Psychotropic substances Act, 1985; the Indian Penal Code, 1860; the
Prevention of Immoral Trafficking Act, 1956; Prevention of Child from Sexual Offences Act, 2012
etc.
2. Willy aged 22, a medical student, charming and flirtatious, is sceptical about long term
relationships and is only interested in short term relationships. Although not an addict is the habit of
taking drugs under pressure and an alcoholic as well. Redwane also a medical student and Willy’s
classmate and confidante, both shared mutual interests in women and Redwane would get escorts to
his rented apartment.
3. Redwane told Willy about a dating app to get casual sex with no strings attached. Impressed by
the app, Willy installed the same in his Galaxy ON Nxt and was amazed, he dated a few girls but no
serious relationship or intimate relationship.
4. The date with Ms A- Willy liked a girl Ms A whose profile said she was single and 19 years old
student,both showed interest by swiping and soon started chatting on love-finder,whatsap and
facebook messenger. Ms A had actually misrepresented her age and was only 16 years old. Both
were seriously involved in the relationship and would frequently meet where Ms A would lie to her
parents. Photos of the two were continuously taken from Willy’s phone but no disclosure of age by
Ms A.
5. The LE COCO Resort Party- An invite of a Christmas party with unlimited liquor and food with
a private room at 600 pounds came to Redwane from a closed whatsap group and Willy also agreed
to join on Redwane’s proposal who also suggested to bring Ms A.
6. Redwane used the feature of inviting contacts on Tinder to parties and connect there, one of his
matches, Helena, an English literature university student accepted his proposal but asked for 300
pounds in return. Getting the hint he agreed and was sexually attracted and excited by seeing
Helena’s pictures whose description said she was a nice,friendly,, fun loving girl who would spice
up your free time.
7. Meanwhile the police had received a tip-off illegal activities and sent two trap witnesses. The
party commenced at 9pm and Willy with Ms A were present alongwith Redwane, Helena,
Stella(23,met at the party). At around 11 pm, Mr Danish came with a police team and searched the
premises where in Room no.17 of the resort, Willy, Ms A, Redwane, Helena and Stella, nude were
involved in some sexual act seeming to be orgy. All five were arrested, liquor bottles, condoms,
mobile photos containing pornographic material recovered, seizure memo made signed by trap
witnesses,.

MEMORIAL ON BEHALF OF THE RESPONDENTS


[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

During the enquiry it was revealed that Ms A was a minor and came as a shocker for everyone, the
totally ignorant parents made a written complaint against Willy for dragging their daughter in the
relationship and penetrative sexual assault confirmed by medical examination done in accordance
with Government guidelines. Following FIR’s were filed
1) FIR against Willy, Redwane, Helena and Stella for getting involved in ‘lewd and obscene acts’ by
performing an orgy; 2) FIR against Willy, Redwane, Helena and Stella for the offence of ‘sexual assault
on a child. 3) FIR where Redwane was booked for the offence of ‘prostitution’ whereby Helena is
booked for ‘soliciting prostitution’. After the due process charge sheet was filed and case was
committed for trial.
8. Video recording- Willy’s seized phone was the only evidence showing accused involved in orgy,the
trial court did not ensure compliance to section 65B of Evidence Act but held it.

9. Redwane’s statement under 164,CrPC-He had proposed orgy since it was legal between consensual
adults, denied knowledge of Ms A’s age. Denied intention of soliciting prostitution and said it was
normal for boys of his age to use tinder. He also pleaded that the act took place in a private resort and
law has nothing to do with anything happening in four walls.

10. Ms A’s statement under 161 CrPC- Admitted misrepresenting her age, had truly fallen in love with
Willy and was sexually attracted to him, had no fetish towards group orgy. Redwane had propsed the
idea and Willy though earlier reluctant had later persuaded her.

11. Helena’s statement uner 161 CrPC-Studying wasn’t cheap so she was a part time escort, love finder
helped her find interested men who she would tell initially only she was an escort and had given her
description on tinder which helped men understand her. Men only wanted sex and no relationship so she
charged from 60-100 pounds depending on time. Made a lot of money and pleaded it was a social app
used by adults not forbidden by law and doesnot solicit prostitution.

12. Testimony of trap witnesses- Had seen the five people having fun, suspected activity so had signalled
Mr Danish

13. Stella’s statement under 161CrPC- A psychology university student,was alone so went to the party
found Redwane and met others. They all boozed, Redwane quickly proposed orgy, was hesitant initially
but later agreed finding it fascinating and legal. Also contended that act happened in a private room
within four walls and did not violate community standards of obscenity.

14. Willy’s statement- had pleaded innocence since beginning, expert proved he was not a paedophile
and had acted in good faith thinking she was 20 years old. He maintained throughout that had he known
she was less than 18 years he would have had no relationship, pleaded it was Ms A’s fault.

15. All four were convicted for penetrative sexual assault of Ms A and 7 years imprisonment, 3 months
imprisonment for obscenity involving orgy, additionally, Redwane was given 3 years imprisonment for
offence of prostitution and Helena, six months for soliciting.

16. All four approach the High Court by way of criminal appeal seeking annulment of convictions.
The society vigilante group filed a writ for imposing a ban on the app acting as a platform for soliciting
prostitution and degradation of moral values of an orthodox society. In addition to this, SVG was

MEMORIAL ON BEHALF OF THE RESPONDENTS


[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

seeking an FIR against Mr Berny, the CEO of the app, holding him responsible for the alleged criminal
activities. The complaint was not accepted and SVG files a case for the registering of an FIR.

17. SVG asserts there are profiles advertising sexual services frequently in one out of 25-30 swipes.
Innocent youth are being deceived and a sprout of HIV cases due to the app. The spokesperson of the
app said use of Tinder for purposes of solicitation of prostitution is against the app’s Terms of Service,
which forbids commercial solicitation of any kind and whenever a profile is reported, it is shut down,
though there is no effective mechanism for the same, entirely banning it would interfere in the privacy
rights of the users.

MEMORIAL ON BEHALF OF THE RESPONDENTS


[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

STATEMENT OF ISSUES

ISSUE 1: Whether the offence of penetrative sexual assault has been committed by Willy,
Redwane, Stella and Helena on Ms A ?

. ISSUE 2: Whether the conviction of Redwane for the purpose of prostitution is justified ?

ISSUE 3: Whether the conviction of Helena for soliciting prostitution under the ITA Act is
justified ?

ISSUE 4: Whether the conviction of all the accused for the offence of obscenity by involving in
an orgy is justified ?

ISSUE 5: Whether the writ is maintainable or not ?

ISSUE 6: Whether FIR should be lodged against Mr Berny ?

ISSUE 7: Whether the ban will affect the privacy rights of the users or not ?

MEMORIAL ON BEHALF OF THE RESPONDENTS


[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

SUMMARY OF ARGUMENTS

ISSUE 1: Whether the offence of penetrative sexual assault has been committed by Willy,
Redwane, Stella and Helena on Ms A ?

It is humbly submitted before honorable court that Ms A was a minor and had misrepresented her
age and made profiles on facebook and love finder and would hang out with Willy usually, but
she was immature and did not have enough sense hence the conviction of the four is justified, the
onus lies on the adult to check whether the girl is an adult or not. And though all the conditions
of Section 65B of the Evidence Act have not been complied with the production of original
evidence still makes evidence admissible.

ISSUE 2: Whether the conviction of Redwane for the purpose of prostitution is justified ?

It is humbly submitted before the honourable court that there was a direct demand of 300 pounds
from Helena to Redwane and is very clear that this was a consideration in return of sex. Helena’s
description clearly hinted at the same and Redwane floating the idea of orgy clearly indicates
that he had already in mind sexual benefit from Helena. Also we know Redwane was in the habit
of getting escorts to his flat and had no serious relationships and even Helena has stated that all
the men on Tinder only wanted sex and no relationships.

ISSUE 3:Whether the conviction of Helena for soliciting prostitution under the ITA Act is
justified ?

It is humble submitted that in the present case, Helena had indirectly hinted that she was a
prostitute by asking for money. As Redawane was habitual of getting escorts to the 2BHK rental
apartment, he was not to late to grasp what Helena was hinting at , and he agreed to the deal.
Moreover , under section 161 CRPC , Helena had also given statement that Love Finder
provided her men who would pay for sex. Helena had also testified that she found it easy way to
make money. Thus all the statements read together clearly indicate that the trial court’s decision
was right and should be upheld.

MEMORIAL ON BEHALF OF THE RESPONDENTS


[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

ISSUE 4: Whether the conviction of all the accused for the offence of obscenity by involving in
an orgy is justified ?

The four were caught red handed with a video recording which clearly was obscene as t satisifies
the very basic conditions of being obscene according to the definition. There were involved in a
orgy which is against the law and violates the community standards and hemce their conviction
should be upheld.

ISSUE 5: Whether the writ is maintainable or not ?

The writ is not maintainable as the application is only a social app to connect with people across
and does not solicit prostitution. Any act done in terms of advertisement has nothing to do with
company and it cannot infringe the right to privacy of the people but has sufficient checks to
forbid any commercial activity or advertisement. It doesn’t degrade the moral values of an
orthodox society.

ISSUE 6: Whether FIR should be lodged against Mr Berny ?

It is humbly submitted that the app is only a dating app and moreover any whenever any profile
containing offensive things are reported , the company has the policy of shutting it down. Before
creating a profile in Love Finder or Tinder , he or she has to accept the terms and conditions of
the app in which it is specifically mentioned that the app is to be used only for non-commercial
purpose and moreover all the users are responsible for their own interactions with the users and
the company is not responsible for the conduct of any user.

ISSUE 7: Whether the ban will affect the privacy rights of the users or not ?

The ban on Love finder will interefere with the privacy of the users as the messages sent by the
user are to kept private and the app can access information through facebook.

MEMORIAL ON BEHALF OF THE RESPONDENTS


[Document title] 7th ILNU National Moot Court Competiton,2017[Document title]

JUDGEMENT

In light of the issues raised, arguments advanced and authorities cited this Hon’ble Court
adjudge and declare:

1. To uphold the decision of the Trial Court of convicting all the accused for the offence of
Penetrative Sexual Assault under the POSCO Act 2012.
2. To uphold the decision of the Trial court of convicting Redwane for the offence of
getting involved in prostitution under the ITA Act,1956.
3. To uphold the decision of the Trial Court of convicting Helena for the offence of
soliciting prostitution under the ITA Act,1956.
4. To uphold the decision of the Trial Court of convicting all the accused for the offence of
obscenity involving orgy under the Indian Penal Coddde,1860.
5. The appeal filed before the Honorable High Court is not maintainable.
6. FIR should not be lodged against Mr Berny.
7. The ban of Tinder/Love Finder will affect the privacy rights of its users.

MEMORIAL ON BEHALF OF THE RESPONDENTS

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