TC_511

5TH KIIT NATIONAL MOCK TRIAL COMPETITION

2019

Before

THE HON’BLE SPECIAL COURT OF SESSION

STARWALKER’S CITY, TRINDIA

STATE OF NORTHERN TRINDIA............................................................................PROSECUTION

v.

TRIDEV SHUKLA...........………………………....………………….…………...…..DEFENCE

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 5TH KIIT NATIONAL MOCK TRIAL COMPETITION, 2019

[TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .............................................................................................. III

INDEX OF AUTHORITIES ................................................................................................ IV
CASES ................................................................................................................................ IV
STATUTES ............................................................................................................................V
BOOKS .................................................................................................................................V
STATEMENT OF JURISDICION ..................................................................................... VI
STATEMENT OF FACTS .................................................................................................. VII
STATEMENT OF CHARGES ......................................................................................... VIII
THE ACCUSED HAS BEEN CHARGED UNDER SECTION 328 OF THE TRINDIAN PENAL CODE,
1860 ................................................................................................................................ VIII
THE ACCUSED HAS BEEN CHARGED UNDER SECTION 363 OF THE TRINDIAN PENAL CODE,
1860 ................................................................................................................................ VIII
THE ACCUSED HAS BEEN CHARGED UNDER SECTION 506 OF THE TRINDIAN PENAL CODE,
1860 ................................................................................................................................ VIII
THE ACCUSED HAS BEEN CHARGED UNDER SECTION 506 OF THE TRINDIAN PENAL CODE,
1860 ................................................................................................................................ VIII
SUMMARY OF ARGUMENTS .......................................................................................... IX
ARGUMENTS ADVANCED .................................................................................................. 1
[1.] THE ACCUSED IS GUILTY UNDER SECTION 328 OF THE TRINDIAN PENAL CODE, 1860 1
[2.] THE ACCUSED IS GUILTY UNDER SECTION 363 OF THE TRINDIAN PENAL CODE, 1860 3
[3.] THE ACCUSED IS GUILTY UNDER SECTION 506 OF THE TRINDIAN PENAL CODE, 1860 6
[4.] THE ACCUSED IS GUILTY UNDER SECTION 6 OF POSCO ACT, 2012 READ WITH
SECTION 376 OF THE TRINDIAN PENAL CODE, 1860............................................................. 9
PRAYER ................................................................................................................................. 12

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[LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS

Abbreviation Meaning
A.I.R. All India Reporter
All Allahabad High Court
Anr Another
AP Andra Pradesh
Cr.Pc Criminal Procedure Code
Cr.L.J Criminal Law Journal
Hon’ble Honourable
PW Prosecution Witness
DW Defence Witness
IO Investigating Officer
Rs. Rupees
r/w Read With
S.C.C. Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
POCSO The Protection of Children from Sexual
Offences Act, 2012.
Supp. Supplementary
u/s Under Section
v. Versus
vol. Volume

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[INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES
CASES
Aman Kumar v. State of Haryana, A.I.R. 2004 S.C. 1497. ..................................................... 10
Bathula Nagamalleswara Rao & Ors. V. State Rep. By Public Prosecutor, 2008 (2) Crimes
188 (SC). ................................................................................................................................ 2
Bell v. Itawamba County School Board, 74 F.3d 280. .............................................................. 7
Bhima Groba Sontakka v. State of Maharashtra, 2011 Cri LJ (NOC) 446 (Bom). ................... 4
Bhupinder Sharma v. State of H.P, (2003) 8 S.C.C. 551. ........................................................ 11
Biswanath Mallick v. State of Orissa, (1995) Cri LJ 1416 (Ori). .............................................. 3
Deepti Anil Devasthali and Ors. v. State of Maharashtra, 2009 (111) Bom LR 3981. ............. 1
Dharm Das Wadhwani v. State of Uttar Pradesh, A.I.R. 1975 S.C. 241. .................................. 8
Dharmandrasinh v. State of Gujrat, (2002) S.C.C. 679. ............................................................ 2
Gurpreet Singh v. State of Bihar, A.I.R. 2002 S.C. 3217. ....................................................... 11
In Re: Kuruba Chinna Hanumakka, A.I.R. 1943 Mad 396........................................................ 1
In Re: Muruga Goundan, A.I.R. 1915 Mad 56. ......................................................................... 2
In Re: Neela Bose, (1868) 10 WR (Cr) 33................................................................................. 3
Madhukar Damu Patil v. State of Maharashtra, 1996 Cri LJ 1062 (Bom). ............................... 2
Manik Tanjea v. State of Karnataka, (2015) 7 S.C.C. 423. ....................................................... 7
Masalti v. State of U.P., [1964] 8 S.C.R. 133. ........................................................................... 7
Mohammad Aslam vs. State of M.P, 2008 Cri LJ 4212 (MP)................................................... 4
Moniram Hazarika v. State of Assam, (2004) 5 S.C.C. 120. ..................................................... 4
Namdeo v. State of Maharashtra, 2007 Cri L.J. 1819................................................................ 7
Nathu and Anr. v. Emperor, A.I.R. 1931 Lah 401. .................................................................... 4
Noor Aga v. State of Gujrat, (2008) 61 S.C.C. 417. .................................................................. 9
Padam Singh Chainsar S/o Sher Singh vs. State of Uttaranchal (now State of Uttarakhand),
2011 Cri L.J. 2972 (Utr). ....................................................................................................... 5
Priti Chand v. State of Himachal, A.I.R. 1989 S.C. 702.......................................................... 10
R v. Fretwell (1862) L & C 161. ................................................................................................ 1
Rasiklal M. Gangani v. Government of Goa and Ors., 2004 (106 (4)) Bom LR 626. ............... 6
Rizan and Anr. v. State of Chhatisgarh 2003 Cri L.J. 1226. ..................................................... 7
Romesh Chandra Arora v. The State, A.I.R. 1960 S.C. 154...................................................... 6
State of Haryana v. Raja Ram, A.I.R. 1973 S.C. 819. ............................................................... 3

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[INDEX OF AUTHORITIES]

State of Haryana v. Raja Ram, A.I.R. 1973 S.C. 819; Ramesh v. State of Madhya Pradesh,
A.I.R. 2005 S.C. 1186. ........................................................................................................... 4
State of Himachal Pradesh v. Sanjay Kumar, (2017) 2 S.C.C. 51. .......................................... 11
State of Kerala v. Rajayyan and Ors., 1996 Cri LJ 145. ............................................................ 3
State of Maharashtra v. Chandra Prakash Kewalchand Jain, A.I.R. 1990 S.C. 658. ............... 10
State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 S.C.C. 550................... 10
State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384. ........................................................... 10
State of Punjab v. Ramdev Singh, A.I.R. 2004 S.C. 1290. ........................................................ 9
State v. Prakash Mahadeo Mane, 1980 Cri LR 146 (Bom). ...................................................... 7
Suramani, v. State by Inspector of Police Kangayam Police Station, 2011 Cri LJ 2871 (Mad).
................................................................................................................................................ 4
Thakorlal D Vadgama v. State of Gujarat, A.I.R. 1973 S.C. 2313. ........................................... 4
Tilak Raj v. State of Himachal Pradesh, A.I.R. 2016 S.C. 406. ................................................ 7
Tilkeshwar singh & ors. v. State of Bihar, 1955 S.C.R. (2) 1043. ......................................... 11
STATUTES
The Protection of Children from Sexual Offences Act, 2012, §29. ........................................... 9
The Protection of Children from Sexual Offences Act, 2012, §3. ............................................. 9
The Trindian Penal Code, 1860. ....................................................................................... 1,3,4,6
BOOKS
2, RATANLAL & DHIRAJLAL, RATANLAL & DHIRAJLAL’S LAW OF CRIMES 2326 (28th ed.,
Bharat Law House 2018). ...................................................................................................... 1
3, RATANLAL & DHIRAJLAL, RATANLAL & DHIRAJLAL’S LAW OF CRIMES 3583 (28th ed.,
Bharat Law House 2018). ...................................................................................................... 6
DR. PRATAP S. MALIK, A COMPLETE GUIDE TO PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 97 (1st ed., Universal Law Publishing 2016). .............................................. 9
Patnaik & Amrit K, Modi’s Medical Jurisprudence and Toxicology, (22nd ed, Lexisnexis
Butterworths 2005). ............................................................................................................. 10
PSA PILLAI, PSA PILLAI’S CRIMINAL LAW 792 (KI Vibhute, 12th ed.,LexisNexis 2016). ........ 3

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[STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICION

The Prosecution begs to submit that the Hon’ble Special Court of Sessions, Starwalker’s
City, Trindia has exclusive jurisdiction to try the case under Section 31 of The Protection of
Children from Sexual offences Act, 2012 r/w Section 177 of the Code of Criminal Procedure,
1973.

Section 31 of The Protection Of Children from Sexual Offences Act, 2012- Application
of Code of Criminal Procedure, 1973 to proceedings before a Special Court.
Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure,
1973 (including the provisions as to bail and bonds) shall apply to the proceedings before
a Special Court and for the purposes of the said provisions, the Special Court shall be
deemed to be a Court of Sessions and the person conducting a prosecution before a
Special Court, shall be deemed to be a Public Prosecutor.

Section 177 of The Code of Criminal Procedure, 1973- Ordinary Place of Inquiry and
Trial
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.

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[STATEMENT OF FACTS]

STATEMENT OF FACTS

1. Starwalker’s City is a District in northern Trindia and is also the capital city of Trindia.
Mr. Tridev Shukla aged about 46, works as the Deputy Commissioner of Police of the
Starwalker’s City police administration. He is married to Ms. Parvati who is a housewife
and has a 7 year old daughter. In October 2012, Mrs. Sitara Nayak contacted Mr. Tridev
Shukla to help her reach an agreement with Mr, Siddhajeet Sandhu, a property dealer who
had taken Rs. 5,00,00,000 from her in April 2012 for a property situated in a prime
location in Starwallker’s City.
2. Mr. Shukla decided to help Mr. Sitara considering her family’s bad financial condition.
However, even after exercising his influence as a police officer, Mr. Shukla failed to
settle an agreement between the two parties.
3. However, sometime in the month of December 2012, Ms. Nayak’s family asked Mr.
Shukla to forget all the differences and start over. Following which Mr. Shukla started
visiting Ms. Nayak’s home frequently and during this time he met Ms. Nayak’s 16 years
old daughter, Ms. Wareenaa Nayak. Mr. Shukla promised that he would help Ms.
Wareenaa in her Trindia Police Services Exmination, as a result of which the two of them
started communicating through a messaging application and via phone.
4. Ms. Wareena Nayak is close friends with Mr. Rameshwar Anand whose father, Mr.
Kedarnath Anand was employed as an inspector in Starwalker’s city before he was
removed on corruption charges. The complaint of corruption against Mr. Anand was files
by Mr. Shukla. Mr. Anand lives in the same vicinity as Mr. Shukla.
5. Soon after Mr. Anand’s removal, his wife Ms. Kanyakumari Anand who also works as in
inspector and reports to Mr. Shukla, filed a sexual harassment case against Mr. Shukla
with the Sexual harassment Grievances Cell of the Police Department. The complaint is
still pending.
6. Mr. Tridev Shukla has also told Ms. Nayak, on various occasions, that her daughter Ms.
Wareena is romantically involved Mr. Rameshwar. He also told her the he has Wareenaa
several times at Anand Villa while Rameshwar’s parents were away from home to which
Wareena has objected. Further, Rameshwar once got in a scuffle with Mr. Tridev due to
the same issue.
7. Ms. Wareena registered an F.I.R on 27.02.2013 against Mr. Tridev Shukla, alleging his
aggravated sexual assault on her person.

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[STATEMENT OF CHARGES]

STATEMENT OF CHARGES

I.

THE ACCUSED HAS BEEN CHARGED UNDER SECTION 328 OF THE TRINDIAN PENAL CODE,
1860
II.

THE ACCUSED HAS BEEN CHARGED UNDER SECTION 363 OF THE TRINDIAN PENAL CODE,
1860
III.

THE ACCUSED HAS BEEN CHARGED UNDER SECTION 506 OF THE TRINDIAN PENAL CODE,
1860
IV.

THE ACCUSED HAS BEEN CHARGED UNDER SECTION 506 OF THE TRINDIAN PENAL CODE,
1860

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[SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

I. THE ACCUSED IS GUILTY UNDER SECTION 328 OF THE TRINDIAN PENAL CODE,
1860.
The Accused in the present case, Mr. Tridev Shukla intoxicated the victim, Ms. Wareenaa
Nayak with an intention to rape the victim which he consequently did and hence committed
the offence under the Penal Code of Trindia.

II. THE ACCUSED IS GUILTY UNDER SECTION 363 OF THE TRINDIAN PENAL CODE,
1860.
Mr. Tridev Shukla kidnapped the victim, 16 year old Ms. Wareenaa Nayak out of the care of
her lawful guardians that is her parents. Such was done without the consent of her lawful
guardians and therefore amounts to an offence of taking the minor out of the care of her
parents.

III. THE ACCUSED IS GUILTY UNDER SECTION 506 OF THE TRINDIAN PENAL CODE,
1860.
In the present case, Mr. Tridev Shukla, the Deputy Commissioner of Police threatened the
minor victim with injury as well as harm to her person or reputation if she were to report the
incident that took place on 7.02.2013 in his house, that is the rape.

IV. THE ACCUSED IS GUILTY UNDER SECTION 6 OF THE PROTECTION OF CHILDREN

FROM SEXUAL OFFENCES ACT, 2012 READ WITH SECTION 376 OF THE TRINDIAN

PENAL CODE, 1860.

The accused, being a Police officer has committed penetrative sexual assault on a minor,
hence making him guilty of committing the crime of Aggravated Penetrative Sexual Assault
on the minor victim.

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[ARGUMENTS ADVANCED | ISSUE 1]

ARGUMENTS ADVANCED

ISSUE I:
___________________________________________________________________________
[1.] THE ACCUSED IS GUILTY UNDER SECTION 328 OF THE TRINDIAN PENAL CODE, 1860
___________________________________________________________________________
1. Section 328 of the Trindian Penal Code1 provides for the offence of causing hurt by
means or poison or otherwise with an intention to commit an offence. It further provides
that the person liable under this section shall be punished for a period that extends up to a
maximum of seven years in jail as well as a possibility of fine.2
2. A key component of this Section is the minimal requirement as to the presence of
intention to commit hurt being sufficient to constitute an offence3 under this Section.
There is no requirement that hurt be actually caused in order to constitute an offence. A
Division Bench of the Bombay High Court in the case of Deepti Anil Devasthali and
Ors. v. State of Maharashtra4, remarked that for an offence under Section 328 of the
Indian Penal Code, the offence is committed when any person causes or administers
poison with intent to cause hurt to a person so as to facilitate commission of an offence.
The Court remarked that “the offence under this section is complete even if no hurt is
caused to the victim. Mere administration of the poison or unwholesome drug or other
things is sufficient to bring the offender under this section. Intention to cause hurt to such
person to commit or to facilitate to commit an offence or knowledge that hurt will be
caused should be present”.
3. The genesis of the offence lies in the intention to administer the said poison or substance
so as to commit an offence. The provision is caused in very wide phraseology such that it
includes every possible case of taking or administrating any such substance.5 It thus,
includes every such instance wherein the offender administers to the victim any poison
with the intention of causing hurt to such person so as to commit or facilitate the

1
The Trindian Penal Code, 1860, §.328.
2
2, RATANLAL & DHIRAJLAL, RATANLAL & DHIRAJLAL’S LAW OF CRIMES 2326 (28th ed., Bharat Law House
2018).
3
In Re: Kuruba Chinna Hanumakka, A.I.R. 1943 Mad 396.
4
Deepti Anil Devasthali and Ors. v. State of Maharashtra, 2009 (111) Bom LR 3981.
5
R v. Fretwell (1862) L & C 161.

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commission of such offence wherein it can be reasonably apprehended that hurt will be
the outcome of such act and will fall under the ambit of this Section.6
4. Further, there are three elements required to constitute, or rather, prove the commission
an offence under this Section:
i. The substance in question is poison or any stupefying, intoxicating or
unwholesome drug, etc.;
ii. The accused administered the substance to the complainant or caused the
complainant to take such substance;
iii. That he did so with intent to cause hurt or knowingly it to be likely that he would
thereby cause hurt or that the accused intended to commit or facilitate the
commission of an offence.7
5. It is thereby the contention of the Prosecution that the accused in the instance case Mr.
Tridev Shukla is indeed guilty of committing the offence under Section 328 of the
Trindian Penal Code of 1860. He not only fulfills all the elements that are required to be
fulfilled in order to constitute an offence under this Section but also carried out his act of
poisoning with an intention to further commit an offence on the poor and helpless minor
victim who had no way to save herself or her dignity from the power wielded by the
accused, a fact that has been admitted to by the accused himself.8
6. Where there were contradictions relating to the lodging of FIR and the person by whom
it was lodged, it was held that it did not have the effect of discrediting the main
prosecution case which was otherwise reliable.9 In Bathula Nagamalleswara Rao & Ors.
V. State Rep. By Public Prosecutor10 the Apex court held that Delay in lodging of FIR, if
justifiably explained, will not be fatal.

6
Madhukar Damu Patil v. State of Maharashtra, 1996 Cri LJ 1062 (Bom).
7
In Re: Muruga Goundan, A.I.R. 1915 Mad 56.
8
Case Study, p.13.
9
Dharmandrasinh v. State of Gujrat, (2002) S.C.C. 679.
10
Bathula Nagamalleswara Rao & Ors. V. State Rep. By Public Prosecutor, 2008 (2) Crimes 188 (SC).

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[ARGUMENTS ADVANCED | ISSUE 2]

ISSUE II:
___________________________________________________________________________
[2.] THE ACCUSED IS GUILTY UNDER SECTION 363 OF THE TRINDIAN PENAL CODE, 1860
___________________________________________________________________________

7. Section 363 of the Trindian Penal Code provides for a punishment of up to seven years
imprisonment in case any person kidnaps another from India or from lawful
guardianship.11 In this particular case, the accused is charged under this Section as he
kidnapped the minor girl, from her lawful guardianship, an offence that falls under
Section 361 of the Penal Code of 1860.
8. Section 36112 deals specifically about kidnapping from lawful guardianship and lays
down the following ingredients13 that have to be proved in order to prove that an offence
under this Section has taken place-
i. Taking or enticing away a minor or person of unsound mind;
ii. Such a minor must be under the age of sixteen years, if male, or eighteen years, if a
female;
iii. Taking away or enticing away must be out of the keeping14 of the lawful guardian
of such minor person or person of unsound mind;
iv. Such taking or enticing must be without consent of such guardian.
9. With respect to taking or enticing, it refers to any act done in order to take the person
away from the duty or care of the guardian, There is no requirement as the existence of
an active or constructive force15 as long as it can be proven that the accused played some
role in the act of ‘taking’ the minor,16 which is sufficient to establish his liability under
this provision.
10. The Hon’ble Supreme Court of India, in the case of State of Haryana v. Raja Ram,17 was
of the view that it was not necessarily that the taking or enticing must be shown to have
been done through fraud or force. Persuasion by the accused person, which creates
willingness on the part of the minor to be taken out of the keeping of lawful guardian is
sufficient to constitute an offence under this Section.

11
The Trindian Penal Code, 1860, §.363.
12
The Trindian Penal Code, 1860, §.361.
13
PSA PILLAI, PSA PILLAI’S CRIMINAL LAW 792 (KI Vibhute, 12th ed.,LexisNexis 2016).
14
In Re: Neela Bose, (1868) 10 WR (Cr) 33.
15
Biswanath Mallick v. State of Orissa, (1995) Cri LJ 1416 (Ori).
16
State of Kerala v. Rajayyan and Ors., 1996 Cri LJ 145.
17
State of Haryana v. Raja Ram, A.I.R. 1973 S.C. 819.

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11. The provisions of this section are attracted are accrue liability on the accused even if he
were to merely persuade or solicit the minor to abandon legal guardianship.18 The ‘taking
away’ denotes a clear active role by the accused to cause the minor to leave or keep out
of legal guardianship.
12. The enticing or taking away need not be a single act but can be a result of a series of acts
that are continuous in nature such that it creates a continuous and gradual impression in
the minor that results in the inducement to leave the legal guardianship. 19 Further, the
provisions of this Section will also apply wherein the accused prevailed upon the victim
by offering enticement or assurance to leave the keeping of guardian and to come to
him.20
13. It is a well settled principle that a minor cannot generally give valid consent to acts done
by him or her. Such is also the case in the present situation. The defense cannot use the
consent of the victim as a possible defense as the victim, being a minor girl of sixteen
years, cannot give a consent that is valid in the eyes of the law.
14. Thus, the consent of the victim cannot be used as a defense for the offence punishable
under Section 363 and conviction under that Section would be proper.21 It is only the
consent of the guardian that plays a role in these matters as taking away of the minor
from guardian’s consent is an offence under Section 363. It is only the consent of the
guardian that absolves the accused from criminal responsibility22 and such consent
cannot be given after the kidnapping has occurred.
15. Further, the general burden that the prosecution prove the age of the victim as minor23 is
irrelevant in the present matter as the Undisputed Facts in the case brief clearly mention
the victim as being a minor, that is, sixteen years of age.24
16. Furthermore, with respect to taking away from lawful guardianship with intention to
commit rape on the minor, the Court in the case of Mohd. Aslam25 laid down the
conviction under Sections 363 and 37626 to be valid when the minor was kidnapped for
the purpose of committing rape on the victim. Thus, in the present case, the acts done by

18
Moniram Hazarika v. State of Assam, (2004) 5 S.C.C. 120.
19
Thakorlal D Vadgama v. State of Gujarat, A.I.R. 1973 S.C. 2313.
20
Suramani, v. State by Inspector of Police Kangayam Police Station, 2011 Cri LJ 2871 (Mad).
21
Bhima Groba Sontakka v. State of Maharashtra, 2011 Cri LJ (NOC) 446 (Bom).
22
State of Haryana v. Raja Ram, A.I.R. 1973 S.C. 819; Ramesh v. State of Madhya Pradesh, A.I.R. 2005 S.C.
1186.
23
Nathu and Anr. v. Emperor, A.I.R. 1931 Lah 401.
24
Case Study, p.5.
25
Mohammad Aslam vs. State of M.P, 2008 Cri LJ 4212 (MP).
26
The Trindian Penal Code, 1860, §.376.

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the accused clearly indicates the intent to kidnap the victim from her lawful guardianship
so as to commit rape and thus, he must be convicted under both Sections 363 and 376 of
the Trindian Penal Code, the legality of which has been upheld by the Judiciary.27

27
Padam Singh Chainsar S/o Sher Singh vs. State of Uttaranchal (now State of Uttarakhand), 2011 Cri L.J. 2972
(Utr).

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[ARGUMENTS ADVANCED | ISSUE 3]

ISSUE III:
___________________________________________________________________________
[3.] THE ACCUSED IS GUILTY UNDER SECTION 506 OF THE TRINDIAN PENAL CODE, 1860
___________________________________________________________________________
17. Section 506 of the Trindian Penal Code28 provides for the punishment for criminal
intimidation. It lays down punishment of up to a maximum of two years imprisonment as
well as the possibility of fine. The rationale behind this provision is to enable to bring to
justice those individuals who use their power and position to prey upon the hapless
victims who are forced to cow before their tormentor for fear of injury to life or personal
reputation.29
18. The punishment under this Section is for the offence of criminal intimidation that is
mentioned under Section 503 of the Code. Section 503 defines criminal intimidation as
the act of threatening “another with any injury to his person, reputation or property, or
to the person or reputation of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any act which he is not legally
bound to do, or to omit to do any act which that person is legally entitled to do, as the
means of avoiding the execution of such threat, commits criminal intimidation”.30 In
brief, the section has two main elements, first is the intent to cause alarm to the person
threatened and the second is to cause the person to do any act which he is not legally
bound to do or omit an act he is legally entitled to do so in order that the execution of the
threat does not take place.31
19. There are three postulates that need to be proven in order to attract the provisions of this
Section;32
i. That the accused threatened some person;
ii. That such threat consisted of some injury to his person, reputation or property or to
the person, reputation or property of someone in whom he was interested;
iii. That he did so with the intent to cause alarm to that person 33; or to cause that
person to do any act which he was not legally bound to do; or omit to do any act

28
The Trindian Penal Code, 1860, §.506.
29
Rasiklal M. Gangani v. Government of Goa and Ors., 2004 (106 (4)) Bom LR 626.
30
The Trindian Penal Code, 1860, §.503.
31
Romesh Chandra Arora v. The State, A.I.R. 1960 S.C. 154.
32
3, RATANLAL & DHIRAJLAL, RATANLAL & DHIRAJLAL’S LAW OF CRIMES 3583 (28th ed., Bharat Law House
2018).
33
State v. Prakash Mahadeo Mane, 1980 Cri LR 146 (Bom).

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which he was legally entitled to do as a means of avoiding the execution of such

threat.
20. It is well evident that in the present case the accused Tridev Shukla has clearly
intimidated the victim to keep silent as to the incident that took place on the Seventh of
February, 2013 and threatened her with the loss of her reputation34 if she did not report
the offence committed on her. Such an act by the accused to intimidate the victim
through online medium35 clearly constitutes an offence under this section as it fulfills all
the required elements36 and is done with an intention to not only injure the victim but
also her reputation.37
21. In Masalti v. State of U.P.38, a four-Judge Bench had observed that though the evidence
of an interested or partisan witness has to be weighed by the Court very carefully but it
would be unreasonable to contend that evidence given by a witness should be discarded
only on the ground that it is evidence of a partisan or interested witness. The mechanical
rejection of such evidence on the sole ground that it is partisan would invariably lead to
failure of justice.
22. In Rizan and Anr. v. State of Chhatisgarh , through The Chief Secretary, Govt. of
Chhattisgarh, Raipur, Chhattisgarh,39 wherein this Court has observed that relationship
is not a factor to affect credibility of a witness. It is more often than not a relation would
not conceal the actual culprit and make allegations against the innocent person.
Foundation has to be laid if plea of false implication is made. In such cases, the Court
has to adopt a careful approach and analyze evidence to find out whether it is cogent and
credible.
23. In Namdeo v. State of Maharashtra40, C.K. Thakker opined that “close relative cannot be
characterized as an "interested" witness. He is a natural witness. His evidence, however,
must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically
reliable, inherently probable and wholly trustworthy, conviction can be based on the
'sole' testimony of such witness. Close relationship of witness with the deceased or victim
is no ground to reject his evidence. On the contrary, close relative of the deceased would

34
Case Study, p.9.
35
Bell v. Itawamba County School Board, 74 F.3d 280.
36
Tilak Raj v. State of Himachal Pradesh, A.I.R. 2016 S.C. 406.
37
Manik Tanjea v. State of Karnataka, (2015) 7 S.C.C. 423.
38
Masalti v. State of U.P., [1964] 8 S.C.R. 133.
39
Rizan and Anr. v. State of Chhatisgarh 2003 Cri L.J. 1226.
40
Namdeo v. State of Maharashtra, 2007 Cri L.J. 1819.

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normally be most reluctant to spare the real culprit and falsely implicate an innocent
one.”
24. The accused cannot the benefit of the rule of reasonable benefit as it does not imply the
judicial biasness in favour of the accused at the mere hint of doubt or hesitancy. Rather,
the judges must take a practical view of legitimate inferences that arise, or rather, flow
from the evidence.41

41
Dharm Das Wadhwani v. State of Uttar Pradesh, A.I.R. 1975 S.C. 241.

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ISSUE IV:
___________________________________________________________________________
[4.] THE ACCUSED IS GUILTY UNDER SECTION 6 OF POSCO ACT, 2012 READ WITH
SECTION 376 OF THE TRINDIAN PENAL CODE, 1860

25. Penetrative Sexual assault has been defined under Section 3 of the POSCO and includes
the penetration of a penis or any object into the vagina, mouth, uthera or anus of the
child. Further Section 5 (a) provides that a Penetrative Sexual Assault under Section 3
committed by a Police officer shall be Aggravated Penetrative Sexual Assault for which
the punishment has been laid down under Section 6 of the POSCO Act, for which the
accused is being charged under in the present case.
26. The elements of Penetrative Sexual Assault are the same as that of Rape under Section
375 of the Pindian Penal Code and is a special legislation for the same. In addition to this
the burden of proof is reversed, putting the onus of proving his innocence on the
accused.42 The court shall presume the guilt of the accused unless proven otherwise.
27. The Apex court in the case of Noor Aga v. State of Gujrat43 opined that the reverse onus
clause was constitutional such a reversal of burden was to be allowed in case of trial of
offences where if such reversal of onus of proof was not allowed, it would lead to greater
injustice. Further the in the case of State of Punjab v. Ramdev Singh44 the Supreme Court
stated that the offence of rape is a “serious blow to her supreme honour and offends her
self-esteem and dignity” and especially the rape of a minor victim leaves a traumatic
experience and it held that such crimes being not only offences against women, but
offence against society should be dealt by the courts sternly and severely.
28. Section 5 does not restrict itself to penal penetration of a minor’s vagina, but also
includes various other forms of penetration such as sodomy and insertion of fingers into
the vagina, urethra or anus of the child.45 In cases of the above-mentioned acts which are
also punishable under Section 6 of POSCO, the rupturing of the hymen is not
mandatory.46

42
The Protection of Children from Sexual Offences Act, 2012, §29.
43
Noor Aga v. State of Gujrat, (2008) 61 S.C.C. 417.
44
State of Punjab v. Ramdev Singh, A.I.R. 2004 S.C. 1290.
45
The Protection of Children from Sexual Offences Act, 2012, §3.
46
DR. PRATAP S. MALIK, A COMPLETE GUIDE TO PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 97
(1st ed., Universal Law Publishing 2016).

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29. In case of sodomy, abrasions on the skin near the anus appear which can be examined
and the degree of injury increases only “if there is disproportion in size between the
victim’s anal orfice and virile member of the accused.”, these injuries, if slight will
disappear within the span of two to three days.47
30. Further, in case of vaginal penetration, the lack of evidence given by the medical officer
is not an indication as to the commission of rape as it is a legal question and not a
medical one.48 It was held in the case of Priti Chand v. State of Himachal49, it was held
that merely because the vagina admitted one finger with difficulty, it does not indicate
that there has been no penetration as the vaginal muscles could have contracted, further,
in the case of Aman Kumar v. State of Haryana,50 it was held that even the rupture of
hymen is not necessary to prove penetration. From this it can be inferred that merely
because of a lack of medical evidence, the defence cannot discharge their onus of
proving their innocence.
31. It is a well-established rule that a rape conviction can be made merely on the sole
testimony of a victim. This rule is even more stringent in case of a charge under Section
6 of POCSO where the presumption is put on the accused to prove his innocence. The
case of State of Maharashtra v. Chandra Prakash Kewalchand Jain51 the Apex court
stated that Section 118 of Evidence Act which prohibited persons who is incapable of
understanding the questions from testifying. The court draws a distinction between a
prosecutrix of a sex-offence and an accomplice and holds that the prosecutrix can give a
valid testimony that can lead to the conviction of the accused. Further, the evidence of a
victim of sexual crime cannot be tested with the same scrutiny and suspicion as that of an
accomplice.52
32. With regard to minor discrepancies, it was held in the case of State of Punjab v. Gurmit
Singh53 that a sole testimony of a victim can suffice in securing a conviction, without
requiring any corroborative evidence. It was held that minor contradictions in the

47
Patnaik & Amrit K, Modi’s Medical Jurisprudence and Toxicology, 450 (22nd ed, Lexisnexis Butterworths
2005).
48
Patnaik & Amrit K, Modi’s Medical Jurisprudence and Toxicology, 495 (22nd ed, Lexisnexis Butterworths
2005).
49
Priti Chand v. State of Himachal, A.I.R. 1989 S.C. 702.
50
Aman Kumar v. State of Haryana, A.I.R. 2004 S.C. 1497.
51
State of Maharashtra v. Chandra Prakash Kewalchand Jain, A.I.R. 1990 S.C. 658.
52
State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 S.C.C. 550.
53
State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384.

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statements of the prosecutrix as well as a delay in the filing of a FIR, if justified cannot
be sufficient ground to throw out the case of the prosecution.
33. The abovementioned stand was also taken in the case of State of Himachal Pradesh v.
Sanjay Kumar54 where the accused was the uncle of the victim who was a 9-year-old girl
who was allegedly raped. In this case it was held that “To insist on corroboration, except
in the rarest of rare cases, is to equate one who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It would be adding insult to injury
to tell a woman that her claim of rape will not be believed unless it is corroborated in
material particulars, as in the case of an accomplice to a crime. Why should the evidence
of the girl or the woman who complains of rape or sexual molestation be viewed with the
aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea
about lack of corroboration has no substance”55
34. Lastly, if a portion of evidence not being consistent with the statements given under
section 161 and the witness stands declared hostile, that does not, however, mean a
simply total rejection of the evidence, the portion which stands in favor of the
prosecution or the accused may be accepted but the same shall be subject to close
scrutiny.56
35. In Tilkeshwar Singh & ors. v. State of Bihar57 the court held that, “Although the joint
recording of statements made by witnesses during an investigation is a contravention of
s. 161(3) of the Code of Criminal Procedure and must be disapproved, that by itself does
not render the testimony given by such witnesses in court inadmissible. It is, however,
for the court to decide whether it will rely on such testimony or attach any weight to it.”

54
State of Himachal Pradesh v. Sanjay Kumar, (2017) 2 S.C.C. 51.
55
Bhupinder Sharma v. State of H.P, (2003) 8 S.C.C. 551.
56
Gurpreet Singh v. State of Bihar, A.I.R. 2002 S.C. 3217.
57
Tilkeshwar singh & ors. v. State of Bihar, 1955 S.C.R. (2) 1043.

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[PRAYER]

PRAYER

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed by the Prosecution before this Hon’ble Special Sessions Court
to
1. Convict Mr. Tridev Shukla (‘Accused’) under Section 328 of the Trindian Penal
Code, 1860.

2. Convict Mr. Tridev Shukla (‘Accused’) under Section 363 of the Trindian Penal
Code, 1860.

3. Convict Mr. Tridev Shukla (‘Accused’) under Section 506 of the Trindian Penal
Code, 1860.

4. Convict Mr. Tridev Shukla (‘Accused’) under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 r/w Section 376 of the Trindian Penal Code, 1860.

AND/OR

Pass any order it may deem fit, in the interest of Justice

All of which is most humbly and respectfully submitted

Dated:

Place:

S/d___________________

Team -TC_511.
Counsels for the Prosecution.

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