IN THE HON’BLE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRL.) NO._____OF 2018

SURESH AND OTHERS …………PETITIONER

Versus

STATE OF RAJASTHAN…………RESPONDENT

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

MEMORIAL ON BEHALF OF THE APPEALENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………..
INDEX OF AUTHORITIES…………………………………………………………………
STATEMENT OF JURISDICTION………………………………………………………...
STATEMENT OF FACTS……………………………………………………………….....
ISSUES RAISED……………………………………………………………………………
SUMMARY OF ARGUMENTS…………………………………………………………...
ARGUMENTS ADVANCED…………………………………………………………........
1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS
COURT IS MAINTAINABLE OR NOT………………………………………………
2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT TO THE ACCUSED
IS CONSTITUTIONALLY VALID OR NOT…………………………………………
3. WHETHER THE LEVY OF HEAVY COMPENSATION IS
CONSTITUTIONALLY VALID OR NOT…………………………………………...

PRAYER…………………………………………………………………………………

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LIST OF ABBREVIATIONS

AIR All India Reporter

Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Del. Delhi
Edn. Edition

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ILR Indian Law Reports

IPC Indian Penal Code
IC Indian Cases
Raj Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
Sec. Section
U.O.I. Union Of India
V. Versus

INDEX OF AUTHORITIES
CASES

BOOKS
★ Ratanlal&Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol
I, Bharat Law House, Delhi, 27th Edn. 2013.
★ Ratanlal&Dhirajlal’s Law of Crimes – A Commentary on The Indian Penal Code, Vol
II, Bharat Law House, Delhi, 27th Edn. 2013.
★ K I Vibhute, P.S.A Pillai’s Criminal law, Lexis Nexis, 12th Edn. 2014.
★ Dr. (Sir) Hari Singh Gour, Penal Law of India, Law Publishers (India) Pvt. Ltd., 11th
Edn. 2014.
★ J C Smith, Smith and Hogan Criminal Law – Cases and Materials, LexisNexis
Butterworths, 8th Edn. 2002.

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★ Basu’s Indian Penal Code (Law of Crimes), Vol I., Ashoka Law House, 11th Edn.
2011. Criminal Manual, Universal Law Publishing Company, 2015.
★ Woodroffe – Commentary on Code of Criminal Procedure, Vol II, Law Publishers
(India) Pvt. Ltd., Allahabad, 3rd Edn.2012.
★ Ahmad Siddique ,Criminology Problems and Perspectives, Eastern Book Company,
Lucknow, 3rd Edn, 1993.
★ Prof(Dr)Syed Mohhamad Afzal Qadri, Criminology and Penology, Eastern Book
Company, Lucknow, 6th Edn,2009.

STATUTES
★ Indian Penal Code, 1860.
★ The Constitution of India, 1949.
★ Code of Criminal Procedure, 1973.

LEGAL DATABASES
★ Manupatra
★ SCC Online
★ Judis
★ Indian Kanoon

STATEMENT OF JURISDICTION
The Petitioners have approached the Hon'ble Supreme Court of India under Article 136 of
the Constitution of India. The Respondents reserve the right to contest the jurisdiction of this
Hon’ble Court. The article 136 of Constitution of India reads as hereunder:

“136. SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT.

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(1) Notwithstanding Anything In This Chapter, The Supreme Court May, In Its Discretion,
Grant Special Leave To Appeal From Any Judgment, Decree, Determination, Sentence Or
Order In Any Cause Or Matter Passed Or Made By Any Court Or Tribunal In The Territory
Of India.

(2) Nothing In Clause (1) Shall Apply To Any Judgment, Determination, Sentence Or Order
Passed Or Made By Any Court Or Tribunal Constituted By Or Under Any Law Relating To
The Armed Forces.”

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SYNOPSIS OF FACTS

For the sake of brevity and convenience of the Hon'ble Court the facts of the present case are
summarized as follows:
THE INCIDENT

Ms. Gyanwati, aged 20 years is a B.com student of Commerce College. Suresh S/o Ex-CM is
a student of M.Com in the same college and is a close friend of Ms Gyanwati. On 31st
December 2017 after new year’s party when she was on her way back home, Suresh along
with 2 other students of the same college, named Mahesh and Dinesh (son of DIG) forcefully
abducted her on Gunpoint and carried her in a Honda City car, HR16F7337, to a distant and
lonely place in the interior on Tonk road, Jaipur. Gyanesh and Virender were already present
there. All the five of the students drank scotch and whisky, made her forcibly naked and tied
her with a rope in spite of her continuous agitations. After raping her barbarically, 4 of them
left the place leaving Virender (minor, 17 Y/o) to keep a watch on her who was tied up with
iron chains. On 1-01-18, Suresh came along with Brijesh and after having snacks with
whisky, Suresh enquired Brijesh whether he wanted to have sexual intercourse with the
victim which he agreed with and both of them raped the victim. The victim became
unconscious; her uterus was ruptured, with bruises on the breast and other parts of the body.
On 2-01-18, Mahesh contacted Manmohan, Father of Gyanwati, on landline and informed
him about his daughter that she was kidnapped and raped, and if he wanted her to be released,
he should come to a specified place with a ransom of 5 lacs or she would be killed and
thrown into a pond. On 3/01/18, Shri Manmohan was again contacted by Brijesh, now on
mobile, and was told to come alone to the specified place without arms and with the ransom.
Shri Manmohan arranged the amount of ransom from Gyanchand and reached the told place
where he was blindfolded and carried to the room where his daughter was handed over to him
with a warning that if they reported against them, her video would be flashed out on social
media and she would be killed.

FIR

The complainant was carried to the Chaksu police station and FIR was lodged with No. 10
dated 03.01.2018 and case under Sec. 376, 364, 364A/34 IPC r/w Sec 25/27 of the Arms Act
was registered.

JUDGEMENT BY LD. TRIAL COURT

The trial judge convicted the accused and their co-accused after holding that the prosecution
has proved its case fully based upon the witnesses, medical report and material ceased. The

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accused were convicted under Sections 376, 364A, 465, 468, 471, 120B IPC and Sec. 25/27
of the Arms Act as follows:-
1. All the accused were sentenced to rigorous life imprisonment for life time.
2. All the accused were fined with Rs. 10,000/- each.
3. All the accused were directed to compensate the victim with an amount of Rs. 50
lacs jointly and severally.
4. State government was directed to pay a sum of Rs. 10 lacs to the victim.
Aggrieved by the said judgment, accused lodged an appeal with the Hon’ble High Court.

JUDGEMENT BY LD. HIGH COURT

With regard to the testimony provided by the PW1 that remained unshaken through the whole
proceedings and later in the cross-examination as well. The PW1 had recognized the accused
completely during the 2 days while she was held captive. there has been no record of false
implications by the victim. The evidence adduced establiish the complicity of the offences.
Not only this, testimony of the witnesses and other evieces disclosed authenticate the the
commitment of the offence by the offenders. The girl's father, PW2 also reported his part of
the incident, including phone conversations for ransom and his desperate act of arranging the
money in minute details.

APPEAL TO THE SUPREME COURT

Being aggrieved by the aforesaid orders, the complainant filed an appeal before the Hon’ble
Supreme Court and the court issued notice pertaining to constitutional validity of life
imprisonment and levy of heavy compensation and fine.

ISSUES RAISED

1. . WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT.

2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT SENTENCED BY

THE TRIAL COURT IS CONSTITUTIONALLY VALID OR NOT.

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3. WHETHER THE LEVY OF HEAVY COMPENSATION IS

CONSTITUTIONALLY VALID OR NOT.

SUMMARY OF ARGUMENTS

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT.
It is most respectfully submitted before the Hon’ble Supreme Court of India that the instant
petition is not maintainable as Special Leave cannot be granted when substantial justice has
been done and no exceptional or special circumstances exist for case to be maintainable. It is
contended by the respondents that no substantial question of law is involved in the present
case and the interference is based on pure question of fact which is entitled to be dismissed.
This court had laid down the test which says if the general principles to be applied in
determining the question of those principles the question would not be a substantial question
of law. In the present case the appellants have been unsuccessful to show any exceptional and
special circumstances which exist. The appellants are convicted of a heinous offence and this
petition filed by the appellants is a mere vexatious attempt by them. Hence, the petition is not
maintainable.

2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT SENTENCED BY THE

TRIAL COURT IS CONSTITUTIONALLY VALID OR NOT.
Reducing the sentence of life imprisonment has been the main ingredient of this issue. It is to
be humbly submitted that the punishment of life Imprisonment sentenced to the accused
under section 376 CrPC and section 53 IPC is completely valid. The accused have committed
a heinous crime of ‘abduction’ and ‘gang rape’ of a young woman that falls under the ambit
of rarest of the rare case doctrine and requires to be treated under the retributive theory. The
accused did the in full conscience and were aware of the consequences of the act.

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Therefore, the appellant is liable for the crime of abduction and gang rape under rarest of the
rare case and must be punished with life imprisonment till the end of the life of the accused.

3.WHETHER THE LEVY OF HEAVY COMPENSATION IS CONSTITUTIONALLY

VALID OR NOT.
It is contended by the respondents that the proceedings of the Trail Court in the present case
were justified and lawful. There was no irregularity of proceeding in the levy of
compensation in the present case. The Trial Court found accused guilty of the offences in
light of the circumstantial evidences which were found against them and awarded the
compensation of 50 lakhs. It is also in the ambit of criminal court to award the compensation
to the victim according to the nature and gravity of crime according to sec. 357 and 357A of
CrPC. It’s further contended before this Hon’ble Court that the order passed by the lower
courts is well justified and there is no need to waste the time of the court in such vexatious
contentions.

ARGUMENTS ADVANCED

1. WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THIS

COURT IS MAINTAINABLE OR NOT.
It is most respectfully submitted before the Honourable Supreme Court of India that the
instant petition is not maintainable as Special Leave cannot be granted when substantial
justice has been done and no exceptional or special circumstances exist for case to be
maintainable. In the present case no exceptional and special circumstances exist and
substantial justice has already been done. It is contended by the respondents that no
substantial question of law is involved in the present case and the interference is based on
pure question of fact which is entitled to be dismissed. This court had laid down the test
which says if the general principles to be applied in determining the question of those
principles the question would not be a substantial question of law. In the present case the
appellants have been unsuccessful to show any exceptional and special circumstances which

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exist. The appellants are convicted of a heinous offence and this petition filed by the
appellants is a mere vexatious attempt by them. Hence, the petition is not maintainable before
this Hon’ble court.

1.1 NO EXCEPTIONAL AND SPECIAL CIRCUMSTANCES EXISTS AND

SUBSTANTIAL JUSTICE HAS BEEN DONE IN THE PRESENT CASE.

The petitioner contends that in the present case no exceptional and special circumstances
exist and substantial justice has already been done. The appellant must show that an
exceptional and special circumstance exists and that if there is no interference, substantial and
grave injustice will be done to the appellant1. Only then the court would exercise its
overriding powers under Art. 136.2Special leave will not be granted when there is no failure
of justice or when substantial justice is done, though the decision suffers from some legal
errors. The court has emphasized in Pritam Singh v. The State3 that,“ The only uniform
standard which in our opinion can be laid down in the circumstances in that Court should
grant special leave to appeal in those cases where special circumstances are shown to exist”.
The court shall interfere with the decision under challenge only if the extraordinary flaws or
grave injustice or other recognized grounds are made out. 4 It was also observed that, it is not
possible to define the limitations on the exercise of the discretionary jurisdiction vested in
this Court under Art. 136. It being an exceptional and overriding power, naturally, has to be
exercised sparingly and with caution and only in special and extraordinary situations.5
Article 136 does not give a right to a party to appeal to the SC rather it confers a wide
discretionary power on the SC to interfere in suitable cases.6 In the present case the appellants
have been unsuccessful to show any exceptional and special circumstances which exist. The
appellants are convicted of a heinous offence and this petition filed by the appellants is a
mere vexatious attempt by them. Hence, the petition is liable to be dismissed.

1.1.1 NO IRREGULARITY OF PROCEDURE OR VIOLATION OF

PRINCIPLE OF NATURAL JUSTICE HAS BEEN DONE.

1Hem Raj V. The State of Ajmer, 1954 SCR 380.

2
M.P Jain, Indian Constitutional Law, LexisNexis, Nagpur, 7th Edn. 2014.
3
AIR 1950 SC 169.
4
ShivanandGaurishankarBaswanti V. Laxmi Vishnu Textile Mills, (2008) 13 SCC 223
5
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, (1955) AIR 65 (SC
6
P.S.R. Sadhanantham v. Arunachalm&Ors., (1980) 3 SCC 141.

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In plethora of cases, it has been held that except that where there has been an illegality or an
irregularity of procedure or a violation of principle of natural justice resulting in the absence
of a fair trial or gross miscarriage of justice, the SC does not permit a third review of
evidence with regard to question of fact in cases in which two courts of fact have appreciated
and assessed the evidence with regard to such questions.7 It is contended that this court is not
bound to go into the merits and even if it were to do so, and declare the law or point out the
error, still it may not interfere if the justice of the case on facts doesn’t require interference or
if it feels that the relief could be moulded in a different fashion.8

1.2 NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE.

It is contended by the respondents that no substantial question of law is involved in the

present case and the interference is based on pure question of fact which is entitled to be
dismissed. This court had laid down the test which says if the general principles to be applied
in determining the question of those principles the question would not be a substantial
question of law. It might involve question of law but not ‘substantial’ question of law. The
present case does not involve such ‘substantial’ question of law. In Jamshed Hormsuji Wadia
v. Board of Trustees,9 Port of Mumbai the court emphasized that, “the very conferment of the
discretionary power defies any attempt at exhaustive definition of power. The power is
permitted to be invoked not in a routine fashion but in very exceptional circumstances as
when a question of law of general public importance arises or a decision sought to be
impugned before the Supreme Court shocks the conscience. This overriding and exceptional
power has been vested in the Supreme Court to be exercised sparingly and only in the
furtherance of cause of justice in the Supreme Court in exceptional cases only when special
circumstances are shown to exist”.

2. WHETHER THE SENTENCE OF LIFE IMPRISONMENT SENTENCED BY THE

TRIAL COURT IS CONSTITUTIONALLY VALID OR NOT.

7Union of India v. Rajeswari& Co., (1986) AIR 1748 (SC).

8
Raghunath G. Pauhale v. ChaganLalSundarji& Co., (1999) 8 SCC 1 (SC).
9
AIR 2004 SC 1815.

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It is humbly submitted before this Honourable court that the sentence o life imprisonment
sentenced by the trial court is constitutionally valid.

1) The act of the accused of abducting the victim and gang-raping her for 2 consecutive days
under section 372 and 376D comes under the ‘rarest of the rare’ case doctrine. It is significant
to mention that there is no hard and fast criterion for rarest of the rare case doctrine and
special circumstances have to be taken into consideration. The fact that the young girl of 20
years who was a college student was raped by 5 men that led to permanent injuries , both
mental and physical , keeping in mind that the victim would never be able to conceive in
future fulfils all the criterion of the doctrine of ‘rarest of the rare’ case. The punishment of
life imprisonment is a liberal punishment for the accused who have committed such a heinous
crime of gang rape with a woman and should have been punished with death penalty.

In Ravji v State of Rajasthan10, a Division Bench observed that 'it is the nature and gravity of
the crime but not the criminal, which are germane for consideration of appropriate
punishment in a criminal trial'. 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 confirm to and be consistent with the atrocities and the brutality with which the
rime has been committed, the enormity of the crime warranty public abhorrence and it should
respond to the society’s cry for justice against the criminal.

Facts of Shimbu Vs State of Haryana11 are similar to the case in hand, where the appeal of the
accused to reduce the sentence of life imprisonment was dismissed by the Honourable
Supreme Court on the ground that there should be a proportion between crime and
punishment and such heinous cases should not be dealt with insensitivity. The Supreme Court
stated that, “This is yet another opportunity to inform the subordinate Courts and the High
Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the
past have taken a softer view while awarding sentence for such a heinous crime. The above

10 1996(2)SCC 175
11 (2014)13 SCC 318

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trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in
such cases.”

2) The act of the accused fall under the retributive theory.

Though an eye for an eye, a tooth for a tooth and death for death is not true in civilized
society but it is equally true that when a man becomes beast and a menace to society he can
be deprived of his life according to the procedure established by law. The heinous crime of
rape committed by the accused to outrage the modesty of a woman leaving her in a state
where she cannot conceive in future should be dealt with a harsh punishment of life
imprisonment till the end of life of the accused and not be dealt leniently. The punishment of
the offence should be held with proportionality to the crime. Retributive punishment has to be
proportional to the degree of desert. The more the desert, the more the punishment should
be.12

3) “Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international cooperation and in accordance with the
organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.”13 The accused in
this case not only left the victim with permanent physical injury but a mental trauma for life,
destroying her self-esteem, personality and integrity in society. The right of each citizen of
the country to be secured and safe has been violated here. The accused were major at the time
of committing the offence and had full knowledge of their act and its consequences. They did
not only rape her for 2 consecutive days but also asked for ransom from her family. The
punishment of life imprisonment is the justified punishment sentenced by the trial court as it
would not only do justice to the victim whose entire life has been destroyed but would also
set an example for the rest of the society in such regards.
4) Article 21 of the Indian Constitution talks about the right to life and liberty, and that no
person shall be deprived of his right except according to the procedure established by law. It
means that even if a person is sentenced to life imprisonment as a punishment for a gruesome

12
H.L.A. Hart, Oxford University Press (2008), 2nd ed, Punishment and responsibility: Essay in Philosophy of
law.
13
Article 22 of Universal Declaration of Human Rights

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offence, it is just and fair. The sexual autonomy is a part of right to privacy14.The word “Life”
under Article 21 means a quality of life which recognizes adequate standard of living. In the
present case, actions of accused created a concavity in the dignity and bodily integrity of
victim which is the very essence of Art. 21 of the Constitution of India.

2. WHETHER THE LEVY OF HEAVY COMPENSATION IS

CONSTITUTIONALLY VALID OR NOT.
1. It is humbly submitted before this Hon’ble court that trial court is justified in
directing the accused to compensate the victim and the levy of compensation is
nothing with respect to the loss and agony suffered by the victim. Victim has suffered
mental and physical trauma. Reputation of victim and her family is tarnished because
of this heinous act (rape) of accused as in India rape victim are treated as it is their
fault that they are raped and they are degraded for this.
2. It is purely within the discretion of the criminal court to order or not to order
payment of compensation15 and while awarding the compensation court should take in
account the nature of crime, injury suffered, and justness of claim for compensation,
the capacity of accused to pay and other relevant circumstances in fixing the amount
of fine or compensation16 and in the present matter beforehand court is justified in
ordering the accused to compensate the victim by going through all the witnesses and
looking at the nature of crime they committed. Accused were conscious and were
fully aware about the graveness of their act and its result and their act of confining the
victim for nearly two days prove this. It was not at the spur of moment but a fully
premeditated act.
3. Order of court to award compensation is not ancillary but in addition thereto 17. The
power to award compensation is to ensure the victim that she is not forgotten in the
criminal justice system. Exercise of this power is recommended liberally so as to
meet the end of justice in a better way18. In case of SUGANTI SURESH KUMAR V.
JAGDESHAN19, Sc upheld that dictum of Sukhbir Singh case is valid and binding on

14Justice K.S.Puttaswamy (Retd) V. Union Of India And Ors, (2017) 10 SCC 1.

15
Law commission of India, forty-first report (CrPC,1898), 24th September, 1969, Vol.1, p.356
16
Sarwan Singh V. State of Punjab, A.I.R. 1978 S.C. 1525.
17 Balraj Singh v State of U.P.
18
Hari Krishna and State of Haryana v. Sukhbir Singh, air 1988 S.C. 2127
19
2002(44) A.C.C.654;

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all court. In addition to conviction court may order the accused to pay some amount to
victim by way of compensation20. So, there arise no questions of constitutional
validity as everything is followed according to procedure established by law and
justice is done.
4. In the Indian society of the 21st century, many people want their brides to be
“pure” virgins. A victim of rape in such cases not only loses out on the opportunity to
marry into an otherwise decent family but is also discriminated upon for no fault of
hers. It is often said that the most prised possession of a woman is her dignity and
respect. In the society where people still have an old mindset, the life of such a
woman only degrades. It only makes sense to compensate such a victim well apart
from punishing the accused.
5. A women’s right to compensation originates from Article 21 of the Indian
Constitution which talks about right to life and personal liberty. The Supreme Court
held that a woman can be compensated even in the middle stages of the trial as well as
at the end of the trial. The Supreme Court even suggested the establishment of
criminal injuries compensation Board under Article 38(1)21 of the Constitution of
India whose function would have been to compensate such victims and provide them
relief22.
6. Victim has to suffer from many hardships as she is not able to conceive in the
future. Act of the accused was so brutal that her uterus is ruptured and she is
physically and mentally tortured, so in order to provide her maintenance and to
support her compensation is only a single way and the trial court as justified in
awarding compensation.
7. No compensation can be adequate nor can it be of any respite to the victim. The
humiliation or the reputation that is snuffed out and the mental trauma victim suffered
due to commission of such heinous crime (rape) cannot be compensated but then
monetary compensation can at least provide some solace.

20 Maheshwar Dattatraya kale V. Atul Wasudeo Divekar 2006

21
Art.38 :-State to secure a social order for the promotion of welfare of the people
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may
a social order in which justice, social, economic and political, shall inform all the institutions of the national life

22
Delhi Domestic Working Forum v UOI,

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8. Victim compensation scheme was added in the 2009, in CrPC by the insertion of
new Sec.357A which cast a responsibility on the state govt to formulate scheme for
the compensation to the victim of crime in coordination to the central govt whereas,
Sec. 357 ruled the field which was not mandatory in nature and only the offender can
be directed to pay compensation to the victim under this Sec.23
9. I humbly submit before this Hon’ble court to upheld the decision of the trial court
and direct the accused to compensate the victim within the allotted time.

23
Mohd Haaron v. UOI, (2014) 5 SCC 252.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble Court be pleased to:

1. Dismiss this Special Leave Petition.

2. Hold that the order of conviction passed by the Sessions Court and the Hon’ble
High Court is correct.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Respondent as in duty bound, shall humbly pray.

COUNSELS ON BEHALF OF THE RESPONDENT

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