CODE-

1stAURO UNIVERSITY NATIONAL MOOT COURT COMPETITION-2014

IN THE
HON’BLE HIGH COURT OF GUJRAT

MATTER RELATING TO SEXUAL HARASSMENT AND RAPE

_____________________________________
RAJBIR SINGH & OTHERS
(APPELLANT)
V.
STATE OF GUJRAAT
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

2014

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 TABLE OF CONTENTS

THE TABLE OF CONTENTS………………………………………………………………2

THE INDEX OF AUTHORITIES………………………………………………………….3-5

SYNOPSIS……………………………………………………………………………………8

THE STATEMENT OF JURISDICTION…………………………………………………….9

THE STATEMENT OF FACTS……………………………………………………………..10

THE STATEMENT OF ISSUES…………………………………………………………….11

THE SUMMARY OF ARGUMENTS………………………………………………………12

THE ARGUMENTS ADVANCED………………………………………………………13-26

THE PRAYER…………………………………………………………………………........27

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 INDEX OF AUTHORITIES
STATUTES REFERRED:
1. CODE OF CRIMINAL PROCEDURE, 1973 (ACT 2 OF 1974)
2. THE CONSTITUTION OF INDIA, 1950
3. THE INDIAN EVIDENCE ACT, 1872 (ACT 1 OF 1872)
4. THE INDIAN PENAL CODE, 1860 (ACT 45 OF 1860)

BOOKS REFERRED:
1. K.D. Gaur, A Textbook on the Indian Penal Code, 4th Edition, 2012, Universal Law
Publishing Co. Pvt. Ltd.
2. K.D. Gaur, Criminal Law: Cases and materials, 6th Edition, 2009, Lexis Nexis
Butterworth Wadhwa, Nagpur.
3. Modi's, Medical Jurisprudence and Toxicology, 22nd Edition, Butterworth’s, India, New
Delhi, 1999.
4. Ratanlal&Dhirajlal, Law of Crimes, Vol. 2, 25th Edition, 2004, Bharat Law House, New
Delhi.
5. Sarkar SC, Code of Criminal Procedure, Vol. 2, 10th Edition, 2012, Lexis Nexis
Butterworth Wadhwa, Nagpur.
6. C.K Thakkar ‘Takwani’, Criminal Procedure, 3rd Edition, Lexis
NexisButterworthsWadhwa, Nagpur, 2011.
7. R.V. Kelkar’s, Criminal Procedure, 5th Edition, Eastern Book Company, Lucknow, 2008
8. Ratanlal and Dhirajlal, The Law of Evidence, 24th Edition, Lexis
NexisButterworthsWadhwa, Nagpur, 2011.
9. M.Monir, Law of Evidence, Vol. 1, 14th Edition, Universal Law Publishing Co. Pvt. Ltd.,
2006
SCHOLARLY WORKS AND ARTICLES
1. S.R. Chitnis, Framing of Charge in Criminal Cases, (2002) 2 SCC (Jour) 24

2. Binayak, Freedom of Expression with particular reference to freedom of the Media, 2

SCC (JOUR) 1 (1982).
WEBSITES REFERRED:
1. http://www.vakilno1.com/
2. www.indiankanoon.com
3. www.lawyersclubindia.com

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4. www.ncrb.nic.in
5. www.supremelaw.in
6. www.manupatra.com
7. www.lawyerservices.in
8. www.findlaw.com

COMMOM LAW PRECEDENTS

Abdul Hamid Vs State (Delhi Admn.) 2001 (59) DRJ 777…………………………………...17

Apparel Export Promotion Council v. A. K Chopra AIR 1999 SC 625…………………..12,13

Bankey vs State AIR 1961 ALL 131………………………………………………………....23

Bhudhan Lal Sarma Vs. The State AIR 1961CriLJ689………………………………………17

Emperor vs Tarak Das Gupta AIR 1926 BOM 159…………………………………………23

Govinda Reddy V. State by Sub-inspector of Police AIR 1997CriLJ148………………...16,17

State of Orissa vs. Thakara Besra AIR 2002 SC 1963………………………………………21

State of Maharashtra Vs Hanumanta @ Hanmappa Malappa Koli and Smt. Yallavva

Hanmappa @Hanmanta Koli AIR 2003(2) ALT (Cri)
23………………………………………………………………………………………….17,18

Major Singh Lachhman Singh vs The State AIR 1963 P H 443……………………………...24

Medha Kotwal Lele and Ors. Vs. Union of India AIR 2013 SC 93……………………........14

Mohd. Iqbal & Anr. v. State of Jharkhand (2013) 9 SCALE 586……………………….20, 22

Om Prakash v. State of U.P AIR 2006 SC 2214……………………………………………..17

Rupan Deol Bajaj V. K.P.S Gill AIR 1996 SC 309…………………………………………..23

S. Khushboo Kanniammal AIR 2010 SC 3196………………………………………………24

Santha vs State Of Kerala 2006 (1) KLT 249………………………………………………..23

Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty AIR 1996 SC 922…………………19

State of H.P. v. Gian Chand AIR (2001) 6 SCC 71………………………………………….19

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 State of H.P. v. Shree Kant Shekari (2004) 8 SCC
153………………………………………………………………………………………...19,20

State of Maharashtra v. Chardraprakash Kavalchand Jain AIR 1990 SC 358……………..16

State of Punjab v. Gurmit Singh AIR (1996) 2 SCC 384………………………………...18, 20

State of Punjab v. Major Singh AIR 1967 SC 63………………………………………...13, 22

State of U.P. vs. Chhatrasal Singh MANU/UP/1065/2007………………………….………15

State v. Narayan AIR (2001) 6 SCC 71……………………………………………………...18

Swapna Barman vs. Subir Das (2004)1GLR168…………………………………………….24

Vishakha v. State of Rajasthan AIR 1997 SC 3011………………………………………….12

Wahid Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9…………………………………21

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 LIST OF ABBREVIATIONS

§ Section

§§ Sections

FIR First Information Report

& And

Ld. Learned

IPC Indian Penal Code

Cr.PC Criminal Procedure Code

v. Versus

U/s Under Section

P.C. Police Custody

N.C.T National Capital Territory

SC Supreme Court

HC High Court

SCC Supreme Court Cases

Para. Paragraph

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 STATEMENT OF FACTS

Maganbhai Chamaris a watchman at textile factory managed by two partners Mr. Rajbir
Singh and Ranjit Singh. He was drawing Rs 4000/- as salary. He requested his employers to
employ his wife somewhere. One fine day on 1st January 2012, Mr. Rajbir Singh appointed
her for housekeeping and offered her Rs 3000/-.Initially on the pretext of appreciation of her
work Mr. Rajbir bestowed upon Mausami some gifts. After some time Mr. Rajbir started
showing interest in developing a physical relation with her. Mausami did not object as she
feared that she would lose her job and it would lead to financial hardships at home. The fact
of this relationship was known to the partner Ranjit Singh and her husband. One day the
eldest daughter of Mausami, Geeta aged16 years came to meet her mother at her work place.
When she went in to inquire about her mother they passed some sexually colored remarks as
the flower is bloomed for the beetle to suck honey, etc. The girl got bit scared and complained
to her mother. Her mother asked her to keep the matter a secret and not to mention about it to
anyone. Few days later Mr. Rajbir and Mr. Ranjit called Maganbhai, and offered to employ
his daughter on work.

From the day one both the partner passed lewd comments of which Geeta was very
uncomfortable. He was not able to share her situation with her father but she did bring the
matter to the notice of her mother. she feared that if she shared her concern all would lose job
and her marriage would also be at stake. On fine day on 27th October 2012 both the partners
called Mausami and asked her to take her daughter Geeta home, who was in the rest room.
They thrust a bundle of 100 Rs notes in to her hand and asked her to manage things. When
she went into the room she saw her daughter unconscious and profuse vaginal and anal
bleeding. Geeta’s mother encouraged Geeta to share with doctor that Mr. Rajbir forcefully
had sexual intercourse with her in presence of Mr. Ranjit and Mr. Ranjit assisted him in the
act. Mr. Ranjit though attempted but was not able to have sexual intercourse with Geeta in
frustration he picked up a knife lying across and inserted in Geeta’s anus causing deep
injuries. On the basis of investigation, police filed a charge sheet against Mr. Rajbir Singh
and Mr. Ranjit Singh. They were alleged to have committed offence under sections 354 A,
354B, 376, 509 of IPC and under section 4 of The Protection of Children from Sexual
Offences Act, 2012. The Trial Court found them guilt and convicted them. Being aggrieved
by the conviction, they preferred an appeal to the High Court of Gujarat.

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 SYNOPSIS

As since from the very beginning they passed some sexually coloured remark on the victim
as flower has been bloomed beetle to suck honey and even they were continuously passing
some lewd comment on the victim. There motive was to outrage the modesty of the victim
through sexually coloured remark comment. As the victim was child and the accused are very
old enough to use criminal force to disrobe the victim and compel her to be naked in the rest
room. Both the accused has committed a rape on the victim. As she was profusely bleeding
from the vagina and anus as one of accused inserted the knife lying across as he was
attempted to have sexual intercourse but failed to do so. Even they give a bundle of 100
rupees to mother to manage things basically to shut their mouth and hide their sin. The chain
of Circumstantial evidence is complete from the start to beginning. Even to keep her in the
job was not to help the victim family financially but to satisfy there lust. Both the accused
have intention to outrage the modesty of victim. As when she enter the room to enquire about
the mother they words utter by them were sufficient to outrage the modesty of victim and
even after she join the work they were continuously passing the lewd comment on the victim.
And even their intention is clear from the facts. As the victim was only 16 year old at the time
of incident and under section 2(1) (d) of prevention of Childs from sexual offences act,
2012.”Child” means any person below the age of eighteen year. She was brutally raped and
sexually assaulted by the victim and left in the pain in the rest room.

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 STATEMENT OF JURISDICTION

The appellant have preferred an appeal to the High Court under Section 374(2) of the Code
of Criminal Procedure, 1973.

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 STATEMENT OF ISSUES

I. WHETHER OR NOT AN OFFENCE UNDER SEC. 354A AND 354B HAS

BEEN COMMITTED BY THE TWO ACCUSED?

II. WHETHER OR NOT AN OFFENCE UNDER SEC. 376 HAS BEEN

COMMITTED BY THE TWO ACCUSED?

III. WHETHER OR NOT AN OFFENCE UNDER SEC. 509 HAS BEEN

COMMITTED BY THE TWO ACCUSED?

IV. WHETHER BOTH THE ACCUSED ARE LIABLE UNDER SECTION 4 OF

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

OR NOT?

SUMMARY OF ARGUMENTS

WHETHER OR NOT AN OFFENCE UNDER SEC. 354A AND 354B HAS BEEN
COMMITTED BY THE TWO ACCUSED?

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As since from the very beginning they passed some sexually coloured remark on the victim
as flower has been bloomed beetle to suck honey and even they were continuously passing
some lewd comment on the victim. There motive was to outrage the modesty of the victim
through sexually coloured remark comment. As the victim was child and the accused are very
old enough to use criminal force to disrobe the victim and compel her to be naked in the rest
room.

WHETHER OR NOT THE OFFENCE UNDER SEC. 376 HAS BEEN COMMITTED
BY THE ACCUSED?

Both the accused has committed a rape on the victim. As she was profusely bleeding from the
vagina and anus as one of accused inserted the knife lying across as he was attempted to have
sexual intercourse but failed to do so. Even they give a bundle of 100 rupees to mother to
manage things basically to shut their mouth and hide their sin. The chain of Circumstantial
evidence is complete from the start to beginning. Even to keep her in the job was not to help
the victim family financially but to satisfy there lust.

WHETHER OR NOT AN OFFENCE UNDER SEC. 509 HAS BEEN COMMITTED

BY THE TWO ACCUSED?

Both the accused have intention to outrage the modesty of victim. As when she enter the
room to enquire about the mother they words utter by them were sufficient to outrage the
modesty of victim and even after she join the work they were continuously passing the lewd
comment on the victim. And even their intention is clear from the facts.

WHETHER BOTH THE ACCUSED ARE LIABLE UNDER SECTION 4 OF THE

PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 OR NOT?

As the victim was only 16 year old at the time of incident and under section 2(1) (d) of
prevention of Childs from sexual offences act, 2012.”Child” means any person below the age
of eighteen year. She was brutally raped and sexually assaulted by the victim and left in the
pain in the rest room.

ARGUMENT ADVANCED

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CONTENTION 1- BOTH THE ACCUSED ARE LIABLE UNDER SECTION 354A OF
INDIAN PENAL CODE.

It is to be transpired that in the instant matter both the accused are very much liable under
section 354A of the Indian Penal Code as at various instances they passed some lewd
comments.

COMMENTS MADE BY BOTH THE ACCUSED AMOUNTED TO SEXUAL HARASSMENT

New Section 354A on Sexual Harassment based on the guidelines given in the Vishaka
judgment Provides that unwelcome physical contact, request for sexual favors, sexually
coloured remarks, forcibly showing pornography and any other unwelcome physical, verbal
or non-verbal conduct of sexual nature will be punishable.

Further it is to be submitted that clause (iv) of Section 354A States as follows-

“(iv) Making sexually coloured remarks Shall be guilty of the offence of sexual harassment.”

In the instant matter when Geeta went in to inquire about her mother both the accused passed
some sexually colored remarks as the flower is bloomed for the beetle to suck honey, etc. and
when she was employed in the company, from the day one both the partner would pass lewd
comments of which Geeta was very uncomfortable. These were the violation of the offence of
Section 354A sub-clause (iv).

Very inference can be drawn from the Vishakha v. State of Rajasthan1, wherein court issued
some guidelines regarding sexual harassment at work place and it is to be noted here that
section 354A which came through criminal amendment act, 2013 have been taken from the
Vishakha’s guidelines.

To buttress the contention reference can be drawn from the Apparel Export Promotion
Council v. A. K Chopra2, which is the first case in which the Supreme Court applied the law
laid down in the case of Vishakha v. State of Rajasthan3 and upheld the dismissal of an officer
from Apparel Export Promotion Council. He was found guilty of harassing at women at his
workplace on the ground that it violated Article 21 of Indian Constitution.

SAFE ENVIRONMENT OF WORK IS A RIGHT OF WORKING WOMEN

1 AIR 1997 SC 3011
2 AIR 1999 SC 625
3 AIR 1997 SC 3011

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Providing safe working environment is a legal duty of the employer. Women should get
surroundings which must be free of sexual harassment. If it exists, employer should be held
vicariously liable. The employer should seek why the women employees remain silent about
sexual harassment. If there are no complaints about sexual harassment, it does not necessarily
mean that there is absence of it. The reason could be that they might feel that there is no use
of complaining. “What should be done instead, then? The abuse of civil rights codes and
tribunals in this arena should also be ended, leaving them to deal with real racial and gender
discrimination. Finally, the genuine crimes and harmful behaviour that have been lumped
together with dirty words and pictures should be handled by the criminal and civil law – and
those systems should be suitably sensitized to harm they may have ignored in the past.

In State of Punjab v. Major Singh4 a three Judge Bench of the Supreme Court considered the
question, “What is a woman’s modesty?” and it held “The essence of a woman’s modesty is
her sex. The modesty of an adult female is writ large-on her body. Young or old, intelligent or
imbecile, awake or sleeping the woman possesses modesty capable of being outraged.
Whoever uses criminal force to her with intent to outrage her modesty commits an offence
punishable under Section 354. The culpable intention of the accused is the crux of the matter.
The reaction of the woman is very relevant, but its absence is not always decisive, as, for
example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping
woman. She may be an idiot, she may be under the spell of anesthesia, she may be sleeping,
she may be unable to appreciate the significance of the act; nevertheless, the offender is
punishable under the section”.

Sexual harassment includes such unwelcome sexually determined behavior as physical

contacts and advances, sexually coloured remarks, showing pornography and sexual
demands, whether by words or actions. Such conduct can be humiliating and may constitute a
health and safety problem; it is discriminatory when the woman has reasonable grounds to
believe that her objection would disadvantage her in connection with her employment,
including recruiting or promotion, or when it creates a hostile working environment.

INTERNATIONAL OBLIGATION

4 AIR1967SC63

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Beijing Declaration and Platform for Action5, inter alia, states, "Violence against women
both violates and impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms.....In all societies, to a greater or lesser degree, women and girls are
subjected to physical, sexual and psychological abuse that cuts across lines of income, class
and culture".6

Thus in the instant matter there is a clear sexual harassment as it satisfies all the requirement
under section 354A.

CONTENTION II- BOTH THE ACCUSED ARE LIABLE UNDER 354B OF INDIAN
PENAL CODE.

Section 354B of the Indian Penal Code reads as follows-

“354B. Assault or use of criminal force to woman with intent to disrobe her – Assaults or
uses criminal force to any woman or abets such act with the intention of disrobing or
compelling her to be naked.”

It is to be submitted that in the instant matter it is clear from the fact sheet that On fine day on
27th October 2012 both the partners called Mausami and asked her to take her daughter
Geeta home, who was in the rest room. They thrust a bundle of 100 Rs notes in to her hand
and asked her to manage things. When she went into the room she saw her daughter
unconscious and profuse vaginal and anal bleeding.

It is further submitted that when the woman went inside the rest room, she saw the girl
unconscious, profusely bleeding from both the openings i.e., vagina and anus. The possibility
of seeing her bleed from both the openings can only be observed when those bleeding parts
are uncovered which implies that there was disrobe.

She later alleges that a knife was there which was inserted in her rectum destructing it badly
and brutally. There are two things which could be understood by this;

1. They scared her and disrobed her on the knife point,

2. It was not a consensual sexual intercourse; it was a rape, because consensual

intercourse leads to smooth or wild intercourse but not immoral and inhuman intercourse.
5 Fourth World Conference on Women Beijing Declaration in Beijing in September 1995 online available on
http://www.un.org/womenwatch/daw/beijing/platform/declar.htm
6 Para 3 of Medha Kotwal Lele and Ors. Vs. Union of India (UOI) MANU/SCOR/66384/2012

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 Does this incident not remind us all about the Delhi gang rape case in December 2012
which became an international issue and international media attention? Where in this case
the gang inserted an iron rod in the rectum of the woman and pulled out brutally the
internal organs out of her body, due to which after 13 days she died. Insertion on knife in
rectum and damaging it and insertion of an iron rod and pulling off the internal organs in
sexual intercourse is not normal. Nobody does it. Do anyone? However it is done in rape,
women are brutally tortured in rape at times murdered too. This is the nature of rape and
not consensual intercourse.

Thus logically and consequently it is to be proved that both the accused assaulted and used
criminal force with the intention of disrobing and compelled her to be naked. Thus this
section very much attracted in the instant matter.

CONTENTION III-BOTH THE ACCUSED ARE LIABLE UNDER 376 OF INDIAN

PENAL CODE.

It is to be submitted that in the instant matter both the accused are liable under section 376 of
the Indian penal code.
THE GIRL WAS RAPED BY BOTH THE ACCUSED

As it is clear from the fact that the girl Geeta was found unconscious on the room when her
mother entered into the room .She saw her daughter unconscious and profuse vaginal and
anal bleeding.
Very reference can be drawn from the case of State of U.P. vs. Chhatrasal Singh 7In which the
victim at the time of incident was aged about 11-12 years. Her father & mother had gone to
Lalitpur and brother to fields and she was alone in her home. It is alleged that Chhatrasal
Singh who was Ex-village Pradhan went to the house of victim and brought her to his house
where he committed rape on her. She narrated to her tale to Her uncle Mukundi. The court
found that Victim is minor girl aged about 11-12 years Testimony of victim finding
corroboration from fact she was found bleeding from her private parts. Investigating Officer
collected blood stained and plain earth from victims house Testimony of victim corroborated
by medical evidence, testimony of uncle and other circumstances Establish beyond any iota
of doubt that victim was ravished by accused respondent .No reason for victim or her uncle to

7 MANU/UP/1065/2007

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falsely implicate accused the court set aside Acquittal Respondent held guilty of committing
rape.
ACTS DONE BY THE ACCUSED AMOUNT TO GANG RAPE
It is submitted that the circumstances from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt 8 and have to be shown in close connection
with the principal fact sought to be inferred from those circumstances.9
THE CHAIN OF CIRCUMSTANTIAL EVIDENCE IS COMPLETE

In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh,10 it was held that
there must be a chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the accused.

THERE WAS NO FALSE IMPLICATION BY THE VICTIM

Further in the case of State of Maharashtra v. Chardraprakash Kavalchand Jain,11 it was held
that the prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a
victim of the crime. If the totality of the circumstances appearing on the record of the case
discloses that the prosecutrix does not have a strong motive to falsely involve the person
charged, the Court should ordinarily have no hesitation in accepting her evidence. Therefore
Ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted.
Courts must also realize that ordinarily a woman, more so a young girl, will not stake her
reputation by levelling a false charge concerning her chastity.’
Furthermore in the case of Govinda Reddy V. State by Sub-inspector of Police12- Jeganathan is
working as a driver in Simson Co. His sister victim a 22 years girl was working in Kalpana
Lamp at Madhavaram, as a machine operator. Jeganathan, victim has been residing along
with their mother in the same house. Thereafter, Jeganathan, as the head of the family has
been looking after the mother and sister. when victim finished her duty, the petitioner,
Supervisor of the factory informed her that she would have to do the overtime work. the
machine did not work. victim informed this to the accused. Then the accused asked her to go
and take rest in the coating room. She slept and Suddenly she woke up and found that the
8 Shivaji Saheb Rao Bobade and Anr. v. State of Maharashtra, 1973 AIR 2622.
9 Munigadappa Meenaiah v. The State of Andhra Pradesh, AIR 2008 SC 3027
10 Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343.
11 A.I.R 1990 SC 358
12 A.I.R 1997CriLJ148

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accused forcibly overpowered her. Despite her resistance, the petitioner committed rape on
her. She went to her house and informed this to her brother. Doctor Chitra, working at Kosha
Hospital Madras, examined victim and found irregular vaginal tear with profuse bleeding.
Since there was continuous bleeding the victim was given general anesthesia and wound was
stitched. Only then the bleeding was stopped. She gave opinion in a certificate that the
irregular vaginal tear in posterior vagina wall would occur due to forcible rape. After
examination of all the witness the trial Court convicted the accused for an offence under S.
376, IPC, and dealt with him as stated earlier and the same has been confirmed by the first
appellate Court.

Inference can also be drawn from Abdul Hamid Vs State (Delhi Admn.)13 wherein a minor girl
was raped where it was bleeding from private part of prosecutrix and No semen and
spermatozoa was detected. It was held that ejaculation of semen is not necessary for
completion of offence of rape. Mere penetration of male organ into the vagina constitutes
offence of rape and Conviction upheld.

In the case of Om Prakash v. State of U.P14, it was held that the Evidence Act nowhere says that
her evidence cannot be accepted. A prosecutrix of a sex-offence cannot be put on par with an
accomplice. She is undoubtedly a competent witness under Section 118 and her evidence must
receive the same weight as is attached to an injured in cases of physical violence. What is
necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of the charge levelled by him
In the Bhudhan Lal Sarma v The State15The court relying on evidence of raped victim held
that there was no need to prove complete penetration or injury to the penis of the appellant
and as per the evidence of victim and other witnesses on record offence was committed
mercilessly upon victim causing rupture of her hymen, and other injuries to her vaginal canal
with the result of profuse bleeding and thus court upheld the decision of trial court.
In The State of Maharashtra Vs Hanumanta @ Hanmappa Malappa Koli and Smt. Yallavva
Hanmappa @Hanmanta Koli-16the Commission of rape on a 13 years old girl Evidence of
victim corroborated by the evidence of (Gangubai mother of victim and the doctor) - No
semen found on the swab Slight penetration is enough for the purpose of finding the offence

13 2001(59)DRJ777
14 AIR 2006 SC 2214
15 A.I.R 1961CriLJ689
16 A.I.R 2003(2)ALT(Cri)23,

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of rape and Penetration caused bleeding injury to the victim and Acquittal of the accused by
the Trial Court and Perverse in law and resulting in grave injustice and grave miscarriage of
justice Acquittal set aside Accused convicted for the offence of rape and sentenced
accordingly.
Therefore in the light of above stated cases it is to be stated that commission of crime against
both accused is very much established under section 376 of Indian Penal Code and hence
they are liable under it.
DELAY IN FILLING A FIR BY THE VICTIM NO GROUND FOR ACQUITTAL

The commission takes place on 27 October 2012 and the FIR was lodged after one month, so
mere delay in the FIR cannot be the ground for acquittal as it has held in then following cases
that delay in FIR is no ground for acquittal and neither any inference can be drawn in all the
cases that whole case is fabricated.

In the case of State of Punjab v. Gurmit Singh17, Court held that it cannot overlook the fact
that in sexual offences delay in the lodging of the FIR can be due to variety of reasons
particularly the reluctance of the prosecutrix or her family members to go the police and
complain about the incident which concerns the reputation of the prosecutrix and the honour
of her family. It is only after giving it a cool thought that a complaint of sexual offence is
generally lodged.

18
In the case State v. Narayan the law is well settled by the Supreme Court that
mere delay in filing the First Information Report is no ground to doubt the case of the
prosecutrix that the evidence given by her should not be accepted. There may be various
reasons for filing a complaint after some delay. The accused is not entitled to acquittal and
the prosecution evidence cannot be discarded on the ground that the complaint was not filed
immediately.

In State of H.P. v. Gian Chand19 the Delay in lodging the FIR cannot be used as a ritualistic
formula for doubting the prosecution case and discarding the same solely on the ground of
delay in lodging the first information report.

VIOLATION OF ARTICLE 21
17 AIR (1996) 2 SCC 384
2 AIR( 1992) SC 2004
18
19 AIR (2001) 6 SCC 71

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Article 21 of the Constitution of India provides right to life to citizens and persons of India.
However, right to life does not mean simply breathing or respiration; life is not a mere animal
existence. It includes right to live with human dignity. Offences such as murder or rape
however, take away a person’s right to life which is a Fundamental Right. Breach of Human
Rights such Fundamental Rights should be appropriately punished. But in the present case a
heinous crime i.e. rape was committed a woman’s most important possession her dignity was
taken away. Rape is a rare form of offence which is gross and an affront to the human dignity
and society.
Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of
privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her
self-esteem and dignity and it degrades and humiliates the victim and where the victim is a
helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only
causes physical injuries but more indelibly leaves a scar on the most cherished possession of
a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a
crime against the person of a woman; it is a crime against the entire society. It destroys, as
noted by this Court in
In the case of Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty20 , it was held that the
entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against
basic human rights, and is also violative of the victim's most cherished Fundamental Rights,
namely, the Right to Life contained in Article 21 of constitution. The Courts are, therefore,
expected to deal with cases of sexual crime against women with utmost sensitivity. Such
cases need to be dealt with sternly and several.
This court in State of H.P. v. Shree Kant Shekari 21 has viewed rape as not only a crime against
the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the
most cherished possession of a woman i.e. her dignity, honour, reputation and not the least
her chastity
In Mohd. Iqbal & Anr. v. State of Jharkhand22 S.C observed:
‘In case of rape besides the psychological trauma, there is also social stigma to the victim.
Social stigma has a devastating effect on rape victim. It is violation of her right of privacy.
Rape is blatant violation of women's bodily integrity.’

20 AIR 1996 SC 922

21 (2004) 8 SCC 153
22 (2013) 9 SCALE 586.

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In State of Punjab v. Gurmit Singh23 it was held that crime against women in general and rape
in particular is on the increase. 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 on the attitude of
indifference of the society towards the violation of human dignity of the victims of sex
crimes. We must remember that a rapist not only violate 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.
National Crime Records Bureau (NCRB) has some horrifying statistics to share according to
which every 20 minutes, a women is raped somewhere in India. Not only that, crimes against
women have increased by 7.1% nationwide since 2010, and child rape cases have increased
by 336% in the last 10 years. The gang rape of the Mumbai photo journalist has shaken the
nation’s conscience once again. How many more Nirbhaya’s is this nation going to accept?
How many girls would be hunted by such hyper-sexed creatures?
In just 15 days following the December 16 incident, there were 45 rapes and 75 cases of
molestation in National Capital Territory of Delhi and not to mention the countless number of
cases that went unreported.24 This court has to set a precedent in this case so that nobody after
this should dare to commit such a heinous act.
In State of Orissa Vs. Thakara Besra & Anr 25The Hon'ble Apex Court held that rape is not a
mere physical assault, rather it often distracts the whole personality of the victim. The rapist
degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix
must be appreciated in the background of the entire case and in such cases, non-examination
even of other witnesses may not be a serious infirmity in the prosecution case, particularly
where the witnesses had not seen the commission of the offence.

A similar view has been reiterated by the Hon'ble Apex Court in Wahid Khan vs. State of
Madhya Pradesh26

23 AIR (1996) 2 SCC 384

24 Spence Feingold, TNN, One rape in every 20 minutes in country, Times Of India, August 25, 2013.
25 AIR 2002 SC 1963
26 (2010) 2 SCC 9

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In view of the above cited judgments, it is now settled law that the statement of the
prosecutrix, if found to be worthy of credence and reliability, requires no corroboration. The
court may convict the accused on the sole testimony of the prosecutrix.
NEGATIVE EFFECT OF RAPE
Those who are victims of rape suffer from a large range of physical and psychological harm.
NCVS data reveal that about 25% of rape victims are physically injured during the attack
(other than direct injuries resulting from the rape). Injuries ranged from black eyes and
bruises to broken bones and other severe bodily harm. In addition to injuries, many rape
victims incur other medical problems such as sexually transmitted disease and pregnancy.
Because of their long term nature, the psychological effects of rape often are more severe
than the physical harm. Immediate emotional reactions include shame, intense fear, anxiety,
stress and fatigue. Victims may develop a host of serious psychological problems, including
eating disorders, suicidal feelings, depression and obsessive compulsive disorder (especially
washing rituals).27The cluster of emotional and psychological responses to rape and sexual
assault is clinically recognized as Rape Trauma Syndrome (RTS).28

“Rape cannot be treated only as sexual crime but it should be viewed as a crime involving
aggression which leads to the domination of the prosecutrix. In case of rape besides the
psychological trauma, there is also social stigma attached to the victim. Majority of rapes
are not sudden occurrences but are generally well–planned as in this case. Social stigma has
a devastating effect on rape victim. It is violation of her right to privacy. Such victims need
physical, mental, psychological and social rehabilitation. Physically she must feel safe in the
society, mentally she needs help to restore her lost self – esteem, psychologically she help to
overcome her depression and socially, she needs to be accepted back in the social fold. Rape
is blatant violation of women’s bodily integrity.”29

CONTENTION IV- BOTH THE ACCUSED ARE LIABLE UNDER SECTION 509 OF
INDIAN PENAL.

27 Clinard, M.B & Yeager P.C., Corporate Crime. New York: The Free Press, (1980).
28 Edwin H. Sutherland’s, White Collar Crime in America: An Essay in Historical Criminology. In L.A. Knafla,
J. Cockburn, & E. Dwyer (Eds.), Criminal Justice History: An international annual, Westport, CT: Meckler, pp.
1–31.
29Mohd. Iqbal & Anr v. State of Jharkhand 2013 (9) SCALES 86.

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It is to be submitted that in the instant matter both the accused are very much liable under
section 509 of the Indian Penal Code.

Section 509 of IPC reads as follows-

“Whoever, intending to insult the modesty of any woman, utters any word, makes any sound
or gesture, or exhibits any object, intending that such word or sound shall be heard, or that
such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a term which may extend to one
year, or with fine, or with both.”

What is outraging the modesty of women has been defined in the case of State of Punjab v.
Major Singh30 a three Judge Bench of the Supreme Court considered the question, “What is a
woman’s modesty?” and it held “The essence of a woman’s modesty is her sex. The modesty
of an adult female is writ large-on her body. Young or old, intelligent or imbecile, awake or
sleeping the woman possesses modesty capable of being outraged. Whoever uses criminal
force to her with intent to outrage her modesty commits an offence. The culpable intention of
the accused is the crux of the matter. The reaction of the woman is very relevant, but its
absence is not always decisive, as, for example, when the accused with a corrupt mind
stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the
spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of
the act; nevertheless, the offender is punishable under the section”.

The intention to insult the modesty is very important as held in Santha vs State Of Kerala31
and even when a man exposes his private organs to a woman, he can also be charged under
section 509 of IPC. The offence may occur in private or public place.

In the instant matter every possible act has been done to outrage the modesty by the two
accused thus are liable under Section 509 of the IPC.

To buttress the contention reference can be drawn from the case of Bankey vs State32 in which
the court held that the when a person makes entry into an apartment occupied by a lady the
first and foremost rational inference that can be drawn in the circumstances must be that it

30 AIR 1967 SC 63
31 2006 (1) KLT 249
32 AIR 1961 ALL 131

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was with the intention of committing some offence in relation to that lady. If it is only making
gestures and uttering words requesting her to agree to commit some sexual offence, or
remove the petticoat or dhoti, then, in that event, it would amount only to an offence under
Section 509 and sentence him to simple imprisonment for six months and a fine of Rs. 100/-,
and in default, three months' simple imprisonment.

Furthermore in the case of Emperor vs Tarak Das Gupta33 In which accused sent by post to
the complainant, an English nurse, a letter containing indecent overtures and suggesting that
the complainant should take certain action in order to show whether she accepted the terms
mentioned in this letter. The letter is described by the Magistrate as containing the most lewd
and filthy suggestions and showing a wholly vicious and depraved mentality of the writer.
The Accused has been convicted of an offence under Section 509 of the Indian Penal Code,
and sentenced to suffer three months' simple imprisonment

Very inference can be drawn from Rupan Deol Bajaj V. K.P.S Gill34 -the supreme court held
that slapping a women on her posterior amounted to “outraging of her modesty within section
354, and 509, of I.P.C.at a dinner party on July 18, 1988 Mr. K.P.S Gill, the then director –
general police of the state of Punjab came and stood in front of Mrs. Bajaj, a senior officer so
close that his legs were about four inches from her knees. He then asked her ‘to get up
immediately’ and come along with him and on her objection slapped her on posterior in the
posterior in the full presence of all guests.

It appears the police did not initiate any action on the first information report of Mrs. Bajaj
and the high court of Punjab and Haryana allowed the petition of Mr. Gill for quashing of
F.I.R on the ground that the matter is being too trivial, it needs no action. Allowing the
petition of Mrs. Bajaj, the supreme court held that the alleged act of Mr. Gill in slapping Mrs.
Bajaj on her posterior amounted to ‘ Outrage her modesty’ Within section 354 and 509 I.P.C
for it was only an Affront(disrespectful) to the normal sense of feminine decency but also an
‘Affront of her dignity’.

35
In the case of Major Singh Lachhman Singh vs The State other Shorter Oxford English
Dictionary (Third Edition) definition of the word “modest” in relation to woman has been

33 AIR 1926 BOM 159

34 AIR 1996 SC 309:1996 (1) BLRJR99:1996 Crlj 381
35 AIR 1963 P H 443

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taken. It says that modesty is “Decorous in manner and conduct; not forward or lewd; shame
fast”. Hence, when used for men, it means the quality of being modest, and in relation to
woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and
conduct”.

In the case of Swapna Barman vs. Subir Das36, “Under Section 509 that the word ‘modesty’
does not lead only to the contemplation of sexual relationship of an indecent character. The
section includes indecency, but does not exclude all other acts falling short of downright
indecency.”

In the Case of S. Khushboo Kanniammal and Anr37 Section 509 IPC criminalizes a ‘word,
gesture or act intended to insult the modesty of a woman’ and in order to establish this
offence it is necessary to show that the modesty of a particular woman or a readily
identifiable group of women has been insulted by a spoken word, gesture or physical act.

Thus logically and consequently it follows that both the accused are liable under section 509
as there is clear outraging the modesty of the victim.

CONTENTION V- BOTH THE ACCUSED ARE LIABLE UNDER SECTION 4 OF

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

It is humbly submitted before this honourable court that in the instant matter both the accused
are liable under section 4 of the protection of children from sexual offences act, 2012 as
section 4 reads as follows:

The very preamble of the protection of children from sexual offences act, 2012 provides that
the main object of this act is to protect children from offences of sexual assault, sexual
harassment and pornography as clause (3) of article 15 of the Constitution, inter alia,
empowers the State to make special provisions for children.

The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen
the legal provisions for the protection of children from sexual abuse and exploitation. For the
first time, a special law has been passed to address the issue of sexual offences against
children.

36 (2004)1GLR168
37 . (AIR2010SC3196)

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 Sexual offences are currently covered under different sections of IPC. The IPC does not
provide for all types of sexual offences against children and, more importantly, does not
distinguish between adult and child victims.

The Protection of Children from Sexual Offences Act, 2012 defines a child as any person
below the age of 18 years and provides protection to all children under the age of 18 years
from the offences of sexual assault, sexual harassment and pornography. These offences have
been clearly defined for the first time in law. The Act provides for stringent punishments,
which have been graded as per the gravity of the offence. The punishments range from simple
to rigorous imprisonment of varying periods. There is also provision for fine, which is to be
decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of trust or

authority of child such as a member of security forces, police officer, public servant, etc.

It is necessary for the proper development of the child that his or her right to privacy and
confidentiality be protected and respected by every person by all means and through all
stages of a judicial process involving the child and it is imperative that the law operates in a
manner that the best interest and well being of the child are regarded as being of paramount
importance at every stage, to ensure the healthy physical, emotional, intellectual and social
development of the child.

The Act also recognizes that the intent to commit an offence, even when unsuccessful for
whatever reason, needs to be penalized. The attempt to commit an offence under the Act has
been made liable for punishment for upto half the punishment prescribed for the commission
of the offence.

The Act also provides for punishment for abetment of the offence, which is the same as for
the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual
Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the
accused. This provision has been made keeping in view the greater vulnerability and
innocence of children. At the same time, to prevent misuse of the law, punishment has been
provided for making false complaint or proving false information with malicious intent. Such
punishment has been kept relatively light (six months) to encourage reporting. If false
complaint is made against a child, punishment is higher (one year).

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Section 3 of the Protection of children from sexual offences act, 2012 provides that 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:

Further according to the definition of child under section 2(1) (d) “child” means any person
who is below the age of 18 year and in the instant matter she was 16 year old at the time of
commission of offence.

Very inference can be drawn from the fact wherein it is clear that the accused used the
criminal force because when the mother of the prosecutrix went into the room she saw her
daughter unconscious and profuse vaginal and anal bleeding. Bleeding from the vagina
means she is subject to penetrative sexual assault thus it is clear there have been a penetrative
sexual assault with the victim.

PRAYER FOR RELIEF

In the light of arguments advanced and authorities cited, the Respondent humbly submits
before this Hon’ble High Court which may be pleased to adjudge and declare that:

I. Decision of trial court must be upheld as-

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 a) Both the accused are liable under section 354A and 354B of the Indian Penal
Code.
b) Both the accused are liable under 376 of Indian Penal Code.
c) Both the accused are liable under section 509 of Indian Penal Code.
d) Both the accused are liable under section 4 of the protection of children from
sexual offences act, 2012.

Any other order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

(Counsel for the Respondent)

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