CHANAKYA NATIONAL LAW UNIVERSITY GENERAL MOOT COURT COMPETITION, 2013

Memorial Of Code :-R-14

IN THE HON’BLE SUPREM E COURT

OF INDIA

Criminal Appeal No. 05/08/2011

In the matters

Between:

State of Rajasthan …Appliant

And

Shri Bhawar Lal, Shri Mohan,

Shri Sohan, Shri Thribuvan … Respondents

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

COUNSEL FOR THE RESPONDENTS

MEMORIAL FOR RESPONDENTS

 TABLE OF CONTENTS

CONTENTS PAGE No.

1. INDEX OF AUTHORITIES
2. STATEMENT OF JURISDICTION
3. QUESTIONS PRESENTED
4. SUMMARY OF ARGUMENTS
5. PLEADINGS
6. PRAYER
MEMORIAL FOR RESPONDENTS
 INDEX OF AUTHORITIES

STATUTORY COMPILATIONS :-

CONSTITUTIONS:-

1- TheConstitutionof India,1950.

ACTS, CODES AND STATUTES :-

1- Indian Penal Code 1860
2- The Juvenile justice (Care and Protection of Children) Act,
2000
3- Evidence Act
4- Criminal Procedure Code

BOOKS:-
BOOKS REFERRED

1. C.K.Thakkar ‘Takwani’, Code of Criminal Procedure (3rd

Ed., Lexis NexisButterworthsWadhwa, Nagpur, 2012).

2. Chief Justice M. Monir, Law of Evidence (14th edition,

Universal Law Publishing House New Delhi, 2006).

3. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And

Dhirajlal, Code Of Criminal Procedure(17th Ed., Wadhwa and
Company, Nagpur, 2007).

4. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And

Dhirajlal, The Law Of Evidence (22nd Ed., Wadhwa and Company,
 Nagpur, 2007).

5. D.D.Basu, Commentary on Constitution of India (8th ed.,

Wadhwa and Company, Nagpur, 2010).

6. D.N.Sen, The Code of Criminal Procedure (Premier

Publishing Company, Allahabad, 2006).

7. H.M.Seervai, Constitutional Law of India(4th ed. Universal

Publishing House, New Delhi, 2007).

8. I.P. Massey, Administrative Law(7th ed. Eastern Book

Company, Lucknow, 2007)

DICTIONARIES:-

1. Brayan A. Garner, Black’slaw dictionary(9thed. Thomson

West,2009).

2. The International Webster’s New Universal Dictionary (2nded.

Trident Press International, USA, 1983).

3. P. RamnathaIyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis

Nexis Butterworths Wadhwa, Nagpur, 2010).
MEMORIAL FOR RESPONDENT

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

MEMORIAL FOR RESPONDENTS

 QUESTIONS PRESENTED

1. Whether the Hon’ble High court is justified in

reducing the life imprisionment of Bhawar Lal To
imprisionment 10 Years ?
2. Whether The Hon’ble High Court is justified in
giving the judgement of Shri Sohan and reducing the
punishment of Shri Mohan?
3. Whether The Hon’ble High Court I s justified In
reducing the amount of Rs. 10,00,000/- to Rs.50,000/- ?
 Summary Of Arguments

1. Yes, the Hon’ble High court is justified in reducing the life

imprisionment of Bhawar Lal To imprisionment 10 Years and I
further appeal to the Hon’ble Supreme Court to reduce the given
punishment to a further extent because there was no mens rea
involved in case of Bhawar Lal and he did this act due to
greediness of money and also he was instigated1 do this act by
Tribhuvan.
2. Yes, The Hon’ble High Court is justified in giving the
judgement of Shri Sohan and reducing the punishment of Shri
Mohan and I further appeal to the Hon’ble Supreme Court to
reduce the given punishment to a further extent because they were
in drunken condition, unconscious and in intoxicated condition
and they were not knowing the gravity of the offence they were
going to commit.
3. Yes, The Hon’ble High Court I s justified In reducing the
amount of Rs. 10,00,000/- to Rs.50,000/- due to lack of evidence
produced before the Hon’ble High Court Regarding the gravity of
the offence commited . So I further appeal to the Hon’ble
Supreme Court to reduce the given amount to a further extent.

MEMORIAL FOR RESPONDENTS

1 Section 108 IPC 1860

 STATEMENT OF FACTS

Prosecution case in nutshell is as follows :-

1. Ms. Shalini aged about 20 years, the complainant, was a
nursing student and was living in a Government Women’s
Nursing College Hostel at Jaipur. On 30th June, 2009 while the
complainant came out of her room in the hostel on the front
lawn of the hostel, the main accused, Shri Bhawarlal, aged
about 30 years a Chowkidar/night watchman in the hostel and
Shri Tribhuvan, aged about 18 years, a spoilt multimillionaire
student, kidnapped her at about 11.00 P.M. and forcibly carried
her in the chowkidar’s room behind the hostel, a lonely place,
where 2 students namely, Mohan, aged 22 years, son of a local
M.L.A. and Sohan, aged 20 years, close relation of a Central
Minister, were drinking heavy liquor. As the summer vacation
was to commence from 1.6.2009, hardly 3-4 students were in
the Hostel with a capacity of 100 inmates. The lady Warden had
left for her home and no other employee was there. The
complainant’s mouth and body was tied with cloth and
Bhanwarlal had a knife in his hands. She was given some
intoxicant with drugs, forcibly put on the mattress and was
raped one by one by Tribhuwan, Mohan, Sohan and Bhanwarlal.
After gang rape, in a naked (unconscious) condition, the
complainant was thrown outside the backside of the boundary
wall of the hostel at about 4.00 A.M.
2. At about 5.00 AM, the complainant came to little senses and
was noticed by certain passers by. She was carried to the
nearest Police Station being Crime No. 966 of 2009, where FIR
could be lodged with much difficulty and on intervention of
Police Commissioner. Case under Sections 363 and 376(2)(g)
was registered against the four accused. Wide publicity was
given by the print and electronic media in local and national
papers and on T.V. The Complainant was admitted in the
Government Hospital and was released after two weeks. The
Chowkidar, Bhawar Lal and other three accused could be traced
out heavily drunk sleeping in the Chowkidar’s room.
2.1. A Panchnamah was prepared. Exhibit-A-1 contains the list
of articles confiscated by the Investigation Officer viz torn out
Kurta, Payjama, panty, hawai chappal, non-vegetarian food
items, tumblers, liquor bottles, drugs, cigarettes, hukka with
tobacco and Matchbox, other intoxicants, sharp knife weapon,
Cash Rs. 10,000/- + Rs. 50,000/-
etc. Four mobile cells of the 4 accused were found and seized.
On checking of call list it was found (i) there had been call in
between the 4 accused in the evening at about 7.00 P.M. and (ii)
two missed calls were by Tribunvan to the Complainant on
29.5.2009. Site map was prepared which is Exhibit A-2. A
classic car Mercedes registered in the name of father of
Tribhuvan and the driving licence of Tribhuvan were found apart
from one motor bike in the Campus. In the Car one bottle of
foreign liquor was also found with bed sheets, carpet, cosmetics,
cigars etc. The complainant was required to undergo medical
examination within 12 hours. The Medical Jurist in the report
stated that blood was seen in the vagina and hymen of the
complainant was found to have been ruptured and damaged.
The accused were also required to undergo ‘Sperm Detection
Test’ and the report corroborated the claim of the complainant.
Presence of semen and human spermatozoa on the bed sheets of
the mattress were noticed. Exhibit A-3 are the photographs of
the Chowkidar’s room with its contents.
3. A case u/s. 376(2)(g) read with sec. 364A of Indian Penal Code
was registered against the 4 accused. After investigation, the
three accused were arrested. Shri Tribhuvan was absconding
and was later arrested. After filing of the charge sheet, the case
was submitted to the Court of Sessions. Shri Tribhuvan and
Shri Sohan were released on bail by the High Court. The
Complainant sought death sentence for Bhanwarlal and
damages of Rs. 20 lacs under Section 357 and 357A of the
Criminal Procedure Code with costs.
4. The prosecutor, (PW-1) stood to the test of cross examination.
Shri Ramlal (PW-2) and Shri Shyamlal (PW-3) who were passing
through the road on the back side of the hostel found the
complainant in naked condition and stated about injury on the
private parts, abrasions and bruises on the breasts and cheeks
and oozing of the blood and that she was in a serious condition.
Photographer (PW-4) stated as to photographs and his
observations. Medical Jurist (PW-5)confirmed his report and the
gang rape mercilessly done. Shri Shyamlal who had drawn Spot
map (PW-6) was examined. They further stated that gang rape
by the 4 accused had dehumanizing effect on the victim. The
witnesses were cross examined and stood to the testimony.
5(i) Shri Tribuvan accused claimed that he is a minor. He
produced his horoscope, birth certificate and matriculation
certificate wherein he was found as having completed 17 years
and 10 months on the date of event. As per Medical Certificate
he was declared above 18 years. He confessed that with the
assistance of Bhanwarlal on payment of Rs. 5,000/- to
Bhanwarlal and Rs. 50,000/- to one other student of the Hostel,
he had carried her to a five star hotel for the whole night. He
also stated that he had been frequently visiting the Hostel with
the
permission of the Warden and that he spotted the Complainant
in mini skirt (western dress) with high heels, cosmetics and was
allured of her charming personality. He asked Bhanwar Lal to
manage the Complainant on payment of Rs. 10,000/- for him
and Rs. 50,000/- for the Complainant. He smilingly stated that
he had inter-course with the complainant gracefully, she was in
proper senses and co-operative. She was misused by other
accused. He was declared as minor.
(ii) Shri Mohan claimed that he was out of the town, came to his
house at about 11.00 P.M. and had not gone to the room of
Bhanwarlal. He denied the charge. However, the Motor bike is
registered in his name. He failed to prove his denial.
(iii) Shri Sohan corroborated the rape story but claimed that he
was persuaded by Tribhuvan to have forcible inter-course for his
pleasure. Shri Tribhuvan was watching the action.
(iv) Shri Bhanwarlal confessed guilty but stated that he had to
co-operate and plan as Tribhuvan gave him Rs. 10,000/- and
also persuaded for forcible rape. He had been arranging drink’s
party earlier also. He admitted receipt of Rs. 10,000/- for him
and Rs. 50,000/- for the Complainant. He told that he earlier
gave offer to the complainant, but she categorically refused to
succumb to his offer for Tribhuvan, a well built person with
charming personality and lot of fortune.
6. The Sessions Judge, Jaipur by judgment dated 30.12.2010
convicted the accused after holding that the prosecution has
proved its case fully supported by independent witnesses and
medical evidence on record apart from the Sperm Detection Test
stained clothes, mattress with blood, drugs, intoxicants, cash
etc. The Sessions Judge Court considering the defence evidence
convicted the accused as follows :-
(i) Shri Bhawar Lal, Chowkidar to undergo rigorous
imprisonment for life;
(ii) Shri Mohan, student to undergo rigorous imprisonment for a
period of 10 years;
(iii) Shri Sohan, student to undergo simple imprisonment for a
period of 7 years; and
(iv) Shri Thribuvan, having been proved as minor to be dealt
with separately under the Juvenile Justice (Care and Protection
of children) Act, 2000.
(v) Damages were awarded of Rs. 10 lacs.
6.1. The Session’s Judge further observed that the physical scar
may heal up, but the mental scar will always remain. When a
woman is ravished, what is inflicted is not merely physical injury
but a deep sense of some deathless shame. He also stated that
the facts given circumstances in each case, the nature of the
crime, the manner in which it was planned and committed, the
motive for commission of the crime, the conduct of the accused,
the nature of weapon used and all other attending
circumstances are relevant facts which would enter into the area
of consideration and it will be a mockery of justice to permit
these accused to escape the extreme penalty of law when faced
with such evidence and such cruel acts. To give the lesser
punishment for the accused would be to render the justicing
system of this country suspect. The common man will lose faith
in courts. The nature and gravity of the crime and not the
criminal, which are germane for consideration of appropriate
punishment in a criminal trial. The court will be failing in its
duty if appropriate punishment is not awarded for a crime which
has been committed not only against the individual victim but
also against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be
irrelevant but it should conform to and be consistent with the
atrocity and brutality with which the crime has been
perpetrated, the enormity of the crime warranting public
abhorrence and it should ‘respond to the society’s cry for justice
against the criminal’. If for an extremely heinous crime
perpetrated in a very brutal manner, the most deterrent
punishment is not given, the case of deterrent punishment will
lose its relevance.” Rape is 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. It
destroys, as noted by this Court in bodhisattwa Gautam v.
Subhra Chakraborty (1966) 1-SCC-490 : (AIR 1996 SC 922) 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 of the fundamental
rights, namely, the right to life contained in Article 21 of the
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 severely.
7. Aggrieved by the said judgement, the respondents accused as
well as the complainant preferred appeal being Criminal Appeal
No. 5 - 8/2011 before the Hon’ble High Court of Judicature for
Rajasthan at Jaipur Bench. The Hon’ble High Court by
impugned judgment dated 20.5.2013 came to the conclusion
that the Sessions Court was justified in coming to the
conclusion that the four accused have committed the heinous
act, offence of gang rape against the nursing student of the
hostel, which would have life long effect on the body and mind of
the
complainant. However, taking a lenient view of the matter, on
appreciation of defence evidence and non-availability of any
independent eye witness, reduced the sentence awarded by the
Sessions Court to the following period :-
(i) Shri Bhawar Lal to undergo rigorous imprisonment for 10
years;
(ii) Shri Mohan to undergo simple imprisonment for five years;
and
(iii) Shri Sohan to the period already undergone by the accused.
(iv) Damages were reduced to Rs. 50,000/-.
The appeal of the accused were allowed in above terms and
appeal of the complainant to enhance sentence and damages
was dismissed, being bereft of any substance.
8. Being aggrieved by the aforesaid orders, the complainant as
well as the accused, Bhawar Lal, Mohan and Sohan have filed
appeal before the Hon’ble Supreme Court. The Hon’ble Supreme
Court has issued notices confining to the issues regarding the
sentence and damages. The Supreme Court also issued notice as
to why the sentence awarded by the High Court to the three
accused respondents be not restored to that of the sentence
awarded by the Sessions Court and why the accused Bhawar Lal
not to undergo life imprisonment for whole of the convict’s life
(not for 20 years or 14 years) ?
9. All the appeals have been consolidated and are fixed for final
hearing on 30.9.2013, with appropriate directions to submit
written memorials on or before 15.9.2013.
RELEVANT LAW
1. Sections 45, 363, 375 and 376 of the Indian Penal Code,
1860.
2. The Juvenile Justice (Care and Protection of Children) Act,
2000.
3. Evidence Act.
4. Section 357 and 357A of the Criminal Procedure Code.

MEMORIAL FOR RESPONDENT

 PLEADINGS

1. Tribhuvan played the main role,he used his money and

power to get his wOrk done.
Mens rea was present only with tribhuvan. But the act was done by other
three accusssed due to the greed of money.

2.Tribhuvan is minor nad hence he should not be accused.

3. Since rohan and sohan were in drunken condition ,it was held that
they were unconscious in nature and hence they shoukd not be provided
such harsh and rigorous punishment. So, that there future is not ruined.

4. Bhuvarlal is poor and other two accused i.e. sohan and mohan both
does not have any source of income as don’t have any job. If the
hon’ble supreme court gives them such hard and rigorous
punishment,then they should do this by taking it into an account that it
does not harm their reputation and family financial condition.

MEMORIAL FOR RESPONDENT

S

PRAYER

In the lights of the issues raised, pleadings and authorities cited

the respondents humbly submit that the honorable court be pleased
to adjudge and declare that:-

1.Hon’ble High Court Should not give Sohan And Mohan such harsh
condition because thery were in drunken condition.

2.Bhawar Lal also should not be provided such rigorous punishment

because he did all the act due to pressure of the money.

And pass any other order that it may deem fit in the favour of accused in
ends of equity, justice & good conscience.

All of which is most humbly and respectfully submitted.

COUNSEL FOR THE

RESPONDENT

MEMORIAL FOR RESPONDENTS