Index of Authority Statues
Index of Authority Statues
Index of Authority Statues
SCR Supreme
AllCourt
IndiaReporter
Reporter
DW Defence Witness
Ed Edition
Articles:
Ahmad N. Dowry deaths (bride burning) in India and abetment of suicide: a socio-legal
appraisal. J. East Asia Int. Law. 2008;1(2):275–289. [Google Scholar]
Van Willigan J, Channa V. Law, custom, and crimes against women: the problem of
dowry death in India. Hum. Organ. 1991;50(4):369–377. [Google Scholar]
Ravikanth N. Dowry deaths: proposing a standard for implementation of domestic
legislation in accordance with human rights obligations. Mich. J. Gend.
Law. 2000;6:449–497. [Google Scholar]
Ahrens, C. E. , & Campbell, R. (2000). Assisting rape victims as they recover from rape:
The impact on friends. Journal of Interpersonal Violence, 15, 959-986. Google Scholar |
SAGE Journals | ISI
Campbell, R. (2002). Emotionally involved: The impact of researching rape. New York:
Routledge. Google Scholar
Russell, D. E. H. (1983). The prevalence and incidence of forcible rape and attempted
rape of females. Victimology: An International Journal, 7, 1-4.Google Scholar
Electronic Medium
www.manupatra.com
www.scconline.com
http://www.findlaw.com
http://www.judis.nic.in
STATEMENT OF JURISDICTION
The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section
209 of the Code of Criminal Procedure, 1973.
Section 177:
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.’
‘209. Commitment of case to Court of Session when offence is triable exclusively by it.
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
(c) send to that Court the record of the case and the documents and articles, if any, which are to
be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’
Summary of Facts
1. Mr. Satya Prakash was looking for a groom for his daughter, Dhanlaxmi and found Mr.
Vishnu Pandey, who also worked in his office, as a suitable match and the marriage was
solemnized on 29th of December, 2007. Mr. Prakash was against the concept of Dowry
and only provided some jewelery and a Rado watch to his son-in-law.
2. On 9th January, 2010, Mr. Prakash scolded Mr. Pandey for being late, who routinely
came to the office late, which turned Mr. Pandey livid and he warned Mr. Prakash that
his daughter would have to bear the consequences. When he came back home, he started
shouting at his wife for not bringing a car as dowry. This became a routinely affair which
was joined by the other family members as well.
3. The whole society knew about this but Dhanlaxmi did not say anything to her family,
she only discussed this with her friend Vijaylaxmi that her husband was physically
abusing her for not bringing enough dowry.
4. On 5th of July, 2014, all the family members had left for a wedding except the couple.
When Vishnu came to the house at night in a drunken state with his friends Jayesh and
Rahul, Dhanlaxmi started scolding him for misbehaving with the guard. This humiliation
made Vishnu hatch a plan with his friends to rape her. When Vishnu went to her room
the other day, he found her lying unconscious and took her to the hospital where she told
the doctors that she was raped thrice while her face was covered with a cloth throughout
the heinous act.
5. A criminal complaint was lodged by the police officials against Vishnu and his two
friends who were by then absconded. The doctors informed her in-laws that she would
not be able to live more than an hour. When her in-laws came to visit her in the hospital,
they started abusing her for making allegations of rape and her mother-in-law even
kicked her in the stomach.
6. Dhanlaxmi gave a statement to the Police in front of a Magistrate that she was raped
thrice and she was not able to recognize the rapists and that even her mother-in-law
attacked her a few minutes ago and kicked her stomach.
7. Dhanlaxmi succumbed to her injuries soon. The police started conducting the
investigation and got hold of Rahul who accepted his role in the rape and subsequently
Vishnu and Jayesh were also arrested.
8. Charges have been framed against Mr. Vishnu, Mr. Jayesh, Mr. Rahul, Mrs. Laxmi, Mr.
Rohan under section –37, 323, 322, 326, 376, 302, 498(À), 304 (B), 506 rw. s. 34,
s.120B, s. 354, s. 299 of Indian Penal Code, S. 113A of Indian Evidence Act. Now the
case is listed before the Sessions Court for Final argument.
Vishnu A1
Jayesh A2
Rahul A3
Laxmi Devi A4
Rohan A5
Security Guard PW1
Mr. Satya Prakash PW2
Mr. Rafiq PW3
Ms. Vijayalaxmi PW4
Mrs. Sharma PW5
ISSUES RAISED
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 376 AND 354 OF
INDIAN PENAL CODE, 1860?
II
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 322, 323, 326 AND 506
OF INDIAN PENAL CODE 1860?
III
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF
INDIAN PENAL?
IV
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 498A, 304B OF THE
INDIAN PENAL CODE, 1860 r/w SECTION 113B OF INDIAN EVIDENCE ACT, 1872?
Summary of Arguments
THE ACCUSED ARE GUILTY UNDER SECTION 376 AND 354 OF INDIAN PENAL
CODE, 1860
The prosecution humbly submits that the accused are guilty under section 376 and 354 of Indian
Penal Code. All the accused had motive. Sexual intercourse was against the consent of the
victim. the accused in furtherance of common intention gang raped the victim and hence guilty
u/s 376 of IPC. The circumstantial, medical, testimony and confession proves the case of
prosecution beyond reasonable doubt. It is evident beyond the shadow of doubt that the accused
gagged the victim and outraged her modesty by violating her under section 354. Thenceforth it is
perforce, that the accused A1, A2, A3 shall be held guilty and be brought to justice.
THE ACCUSED ARE GUILTY UNDER SECTION 322, 323, 326 AND 506 OF INDIAN
PENAL CODE 1860
It is most respectfully submitted before this honourable court that A1, A2, A3 is guilty of
Voluntarily causing grievous hurt under section 322 of IPC. They had every intention to rape her
and cause grievous hurt as it was pre-arranged plan in order to take revenge from the victim.
looking upon the medical examination report it is quite evident that some dangerous weapons and
means have been used as upon finding of the external examination of the victim all the clothes
were blood stained .Hence they should be charged under section 326 0f I.P.C. threat was given to
the victim’s father with the view to be communicated to the victim. the present case the
testimony of deceased clearly proves that all the accused persons acted in concert with each other
and committed crime in one and several transactions. Hence, they should be punished under
section 506 of I.P.C read with section 34 & 120 of I.P.C. In the moment of anger with the
intention of revenge Laxmi Devi (A4) started abusing her and kicked victim’s stomach several
times. Therefore, A4 is liable under section 323 of IPC for voluntarily causing hurt.
THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF INDIAN PENAL
Accused intention was only to rape and teach the victim a lesson and there was no motive to kill
her but even in absence of motive still, they can be convicted under section 302 of I.P.C. Even if
victim has not named the accused that who has raped her but it is quite evident that A1, A2, A3
had brutally assaulted and raped her. There was full planning of rape, at the place of incident
only they were present, watchmen also saw two man coming out of the apartment. Moreover,
Rahul has already confessed his and A1, A2 guilt under the statement recorded U/S 315 CrPC
1973.There are other corroboration like medical examination, dying declaration also which
corroborates with the fact. So, there is no reasonable ground that on the slightest doubt
prosecution evidence should be rejected as complete chain is formed. The dying declaration
mentions the fact that she was raped thrice, thereby it urged by the honourable court that it
should be taken into consideration. Oral evidence given by A3 has more value than the medical
evidence and can be concluded that she was brutally assaulted and was succumbed to death.
THE ACCUSED ARE GUILTY UNDER SECTION 498A, 304B OF THE INDIAN
PENAL CODE, 1860 r/w SECTION 113B OF INDIAN EVIDENCE ACT, 1872
The accused persons is liable to be punished on reasonable grounds .A1 often scolded and
tortured the deceased for not bringing dowry. He along with his family i.e A4, &A5 went to the
extent of physically abusing her. So A1 along with A4 &A5 committed the offence of cruelty. It
is humbly submitted that the accused has caused dowry death of the victim. So looking at the
history of harassment and cruelty by the husband and in-laws and also the victim died under
suspicious circumstance it can be concluded that the accused are guilty of the above sections.
Presumption under 113-B of I.P.C is presumption of law. On proof of essentials mentioned
therein, it becomes obligatory on the court that the accused caused the dowry death. In the instant
case also all the essentials required under this section is satisfied so it is humbly submitted before
the Hon’ble session court to raise presumption under this section.
ISSUE-1
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 498A, 304B OF THE
INDIAN PENAL CODE, 1860 r/w SECTION 113B OF INDIAN EVIDENCE ACT, 1872?
It is humbly submitted that the accused Mr. Vishnu, Mrs. Laximidevi and Mr. Rohan (hereinafter
will be referred as A1, A4 AND A5 respectively) are guilty under section 498A 1, 304B 2of IPC
r/w section 113B3 of IEA
The prosecution would divide the contentions into 3 sub issues to deal with this issue [1.1]
Accused has committed the offense of cruelty on victim; [1.2] Accused has caused dowry death
of victim; [1.3] It will raise a presumption under section 113B
This is humbly submitted before the Hon’ble Session Court that the accused had committed the
offense of Cruelty on victim.
c) Such cruelty or harassment must have been shown either by husband of the women or
by his relative of her husband5
The object of section 498A of IPC was to prevent torture to a woman by her husband or his
relatives in connection with the demand of dowry6. This section has given a new dimension to
the concept of cruelty for the purpose of matrimonial remedies and that the type of conduct
described here would be relevant for proving cruelty7.
1
§498A of Indian Penal Code, 1860
2
§ 304B of Indian Penal Code, 1860
3
§ 113B of Indian Penal, 1860
4
Ratanlal & Dhirajlal, The Indian Penal Code,1860 (LexisNexis, 35th Edition)
5
Suvetha v. State. (2009) 6 SCC 757 : 2009 CrLJ 2974
6
B.S. Joshi v. State of Haryana, 1986 Cri L.J 1510 (Del.)
7
Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105: AIR 1988 SC 121: (1988) 1 AIR 169: 1988 BLJR 138.
In furtherance of afore-stated section and objective of it, it is humbly submitted before the
hon’ble court the acts of the accused persons is liable to be punished on reasonable grounds
which are mentioned below.
After being scolded by PW2, he warned him that his daughter is married to him and he must be
ready for his daughter to bear effects of it. This warning was given in the presence of PW2
personal secretary PW3.When A1 returned home on that day and when he saw his wife, he
started shouting on her for not getting a car from her paternal home, after which a quarrelled
followed. For months it become that they quarrel on the issue dowry. 8Cruelty for the purpose of
offense and the said section need not be physical, even mental torture or abnormal behaviour
may amount to cruelty. This principle was reaffirmed by the Hon’ble Supreme Court in the case
of Gananath Pathak v. State of Orissa 9. In the instant case also mental torture has been caused
to the victim10.
The other two accused A4 &A5 also joined A1 and used to torture the victim for not bringing
adequate dowry from home.11 Same was confirmed by PW4 who is her close friend since college
days that her in laws tortured her for dowry 12 and they wanted a car in dowry, she also told that
she will never tell about all this to her father 13. Even if it is mere demand for dowry it will attract
the provision of aforesaid section as it was observed by the Calcutta High Court in the case of of
Sankar Prasad v. State14 that mere demand of dowry may not be an offense under section 4 of
the Dowry Prohibition Act, 1961 but it is an offense under section 498A of the Indian Penal
Code.
In the case of Chandra v. State of A.P 15the accused stayed happily with wife for one and half
year then he demanded additional money and gold from her. He was held guilty under section
498-A. In the instant case also after 3 years of marriage the accused persons start demand of
dowry from the victim.
8
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
9
Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619.
10
AIR 1998 SC 958
11
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
12
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
13
Annexure 4,Rem Juris 1st National Virtual Moot Court Competition
14
Sankar Prasad v. State, 1991 Cri. L.J. 639 (Cal.)
15
Chandra v. State of A.P, 1996 Cr LJ 2670 (AP)
In the case of State of W.B v. Orilal Jaiswal 16the victim was subjected to abuses, humiliation
and mental torture by her mother in law. Her husband used to come drunk and abused and
assaulted her on occasions. Both her husband and mother-in-law were convicted under section
498A. In the instant case also victim is subject to abuses and humiliation by her husband and her
in laws which is evident from the fact that once victim broke a glass, which was predictably
followed by A4 anger and she ended up slapping her. 17These all abuses and humiliation become
a routine business which even the neighbours were evident of.
In the case of Sarojkshan v. State of Maharastra 18the husband was highly suspicious nature,
always insult wife and not permitting anybody to her, all this was held to be suffiecent to justify
the husband’s conviction under cruelty. Similarly in the instant case also husband alleged to have
locked the vagina of wife and lock was taken by her all this done to prevent her from making
sexual relationship with other men and he also physically abused her. 19The expression cruelty
postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her
living with husband will be harmful and injurious to her life. It is obvious that such kind of
behaviour have created a apprehension in the mind of victim that it is harmful and injurious to
her life, if she continues to live with her husband.
This is humbly submitted before the Hon’ble Session Court that 1.2The accused had committed
the offense of dowry death. 1.3 It will also attract the provision of section 113B of the Indian
Evidence Act.Section 304B, IPC and section 113B, Evidence Act, were inserted with the object
of combating the menace of dowry killings and the attempt was to encounter difficulties of proof
by creating a presumption.20
16
W.B v. Orilal Jaiswal, AIR 1994 SC 1418:1994 CrLJ 2014
17
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
18
Sarojkshan v. State of Maharastra, 1995 CrLJ 340 (Bom).
19
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
20
State of Punjab v. Balwinder Singh, 2012 (2) SCC 182 : AIR 2012 SC 86
The Supreme Court took occasion in Shannti v. State of Haryana to explain the ingredients
of s. 304B. K. JAYACHANDRA REDDY J. Said, “A careful analysis of s. 304B shows that this
section has the following essentials:
The death of a woman should be caused by burns or bodily injury or otherwise than under
normal circumstances.21 The expression “otherwise than under normal circumstances” means a
death not taking place in the course of nature and apparently under suspicious circumstances if
not caused by burns or bodily injury 22. In the instant case death of victim has caused due to
internal bleeding which most probably cause due to some injury, this internal bleeding resulted
into hypovolemia and dyspnea23. Moreover, blood stained clothes were found and nail wound
has been found on back and neck24. This all indicate that death is not natural and occurred under
suspicious circumstance.
Such Death should have been occurred within seven years of her marriage. 25In the instant case
marriage has been solemnized on 29th of December, 2007 and death occurs on 6th of July, 2014. 26
Thus, this ingredient is also satisfied.
She must have been subjected to cruelty or harassment by her husband or any relative of her
husband soon before her death.
Such cruelty or harassment should be for in connection with demand of dowry 27. Earlier it has
been established by the prosecution that victim is subject to cruelty by his husband and relative
in connection with demand of dowry. In S. 304B there is no such explanation about the meaning
of cruelty but having regard to common background to these offenses it has to be taken that the
meaning of cruelty or harassment is the same as prescribed in Explanation to s. 498A28.
In the case of Kishore Kumar v. State29, the wife died in mysterious circumstances. There was
history of harassment and cruelty caused to her by in-laws and the husband. The accused were
21
Akula Ravinder v. State of A.P, AIR 1991 SC 1142 :1991 SCC (Cr) 990
22
Rajayyan v. State of Kerela, AIR 1998 SC 1211 : 1998 CrLJ 1633
23
Annexure 2, Rem Juris 1st National Moot Court Competition
24
Ibid of 22
25
Arbind Kumar Ambasta v. State of Jharkahnd, 2002 CrLJ 3973 (Jhar)
26
Page 1, Moot Proposition, Rem Juris 1st National Virtual Moot Court Competition
27
Kashmir Kaur and another v. State of Punjab, AIR 2013 SC 1039; 2013 CrLJ
28
Keshab Chandra Panda v. State of Orissa, (1995) 1 CrLJ 178, 179 (Ori)
29
Kishore Kumar v. State, 1993 CrLJ 253 (Del)
held guilty under s.498A and 304B of the IPC. In the instant similar history exist of harassment
and cruelty by the husband and in-laws and also the victim died under suspicious circumstance.
The Hon’ble Supreme Court in the case of Ashok Kumar v State of Haryana 30observes that
where other ingredients of s. 304B are satisfied, in that event, the husband or all relatives shall be
deemed to have caused her death. In the instant case also all the necessary ingredient required
under s. 304B is satisfied now it is humbly submitted before the Hon ‘ble court that held accused
guilty of dowry death.
As per section 113B of the Indian Evidence Act, if the accused is being tried for the offense of
dowry death and there are allegations of cruelty or harassment upon such married women for or
in connection with demand of dowry by the husband or his relatives there shall be presumption
against the husband and the relatives.31 It has been earlier established by the prosecution that
there has been dowry death of the victim and all also all other essentials required under this
section has been established so now it raises a presumption against the accused.
The rule of law requires a person to be innocent till proved guilty. In contradiction to this aspect,
the legislature has applied the concept of deeming fiction to the provision of s. 304B. The
legislature has made this presumption a mandatory presumption of law, of course, rebuttable,
though this may sound to be a violent departure from the accepted norms of criminal law.32 The
legislature thought that the presumption under Section 113B should be a mandatory presumption
if the evil of dowry deaths is to be eradicated from the roots of our society. The legislature in its
wisdom has used the word “shall” thus, making a mandatory application on the part of the court
to presume that death had been committed by the person who had subjected her to cruelty or
harassment in connection with or demand of dowry33.
34
The apex court in the case of Ashok Kumar v. State of Haryana observes that the once
prosecution proved it case regarding basic ingredients of s. 304B, the court will presume by
deemed fiction of law that the husband or the relatives complained of, has caused her death. In
30
Ashok Kumar v State of Haryana, 2010 (12) SCC 350: AIR 2010 SC 2839: 2010 CriLJ 4402
31
Ratanlal & Dhirajlal, The Law of Evidence (LexisNexis, 27th Edition)
32
Ibid at 21
33
Bansi Lal v. State of Haryana, AIR 2011 SC 691 : (2011) 11 SCC 359
34
Ashok Kumar v. State of Haryana, 2010 (12) SCC 350 : AIR 2010 SC 2839 : 2010 CriLJ 4402
the instant case also, the prosecution has already proved its case regarding basic ingredients of s.
304B so by deemed fiction of law the accused persons are guilty of dowry death of the victim.
The apex court in the case of Rajinder Kumar v. State of Haryna 35observes that Presumption
under this section is presumption of law. On proof of essentials mentioned therein, it becomes
obligatory on the court that the accused caused the dowry death. In the instant case also all the
essentials required under this section is satisfied so it is humbly submitted before the Hon’ble
session court to raise presumption under this section.
ISSUE-2
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 376 AND 354 OF
INDIAN PENAL CODE, 1860?
It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (Hereinafter will
be referred as A1, A2, and A3 respectively, wherein Rahul (A3) has confessed his guilt and
chose to depose under section 315 of the Criminal Procedure Code, 1973) are guilty of rape
under section 37636 and s. 354 of IPC. The accused on the intervening night of 6 th and 7th of July
brutally committed rape on the victim, while she was sleeping in her room.
The prosecution would divide the contentions into 5 main parts to deal with the issue: [1.1]
Motive; [1.2] Presumption as Mandated and Envisaged by The Evidence Act; [1.3] Appreciation
of Evidences.
[2.1] Motive
It is most respectfully submitted before this honourable court that the accused are guilty of Rape
under section 376 of IPC. It must be brought to the notice of this court that the accused A1, the
husband of the victim time and again made demands of dowry and threatened the father of victim
that if he continues to humiliate him, her daughter might face some unwanted repercussions. This
is indubitably proved by the statement made by father of victim (PW-2) and Rafiq (PW-3).
However, the incident which requires a greater consideration is that on the night of 6th July, when
the accused A1, A2 and A3 came to the house of victim in the state of intoxication, A1 was
35
Rajinder Kumar v. State of Haryana, (2015) 4 SCC 215
36
Section 376 of Indian Penal Code, 1860.
reprimanded by the victim and was humiliated in front of his friends. Also when one of the other
two accused tried to pacify the victim, he was also rebuked by the victim. Thus, with a view to
settle scores and to teach the victim a lesson, they violated her by committing rape. This shows
that the accused had motive37 to commit the aforesaid offence. Motive assumes special
importance when the whole case is built on circumstantial evidence 38. This is relevant under
section 739 and 840 of Indian Evidence Act, 1872.
Section 11441 of India Evidence Act, 1872 (Hereinafter will be referred as Evidence Act)
mandates presumption of certain facts. Section 114 is based on the maxim that all acts are
presumed to have been done correctly and regularly in the common course of natural events. It
authorises this honourable court make presumption of facts, without the help of any artificial
rules of law. As it has been previously established and proved that the all the accused had motive
and A1 has also threatened PW2 and when A1, A2, A3 were scolded by the victim, they planned
to settle the score and teach her a lesson by raping her.
Now the subsequent rape of victim on the night of 7th July at 3:00 AM, form part of the same
chain and unerringly points toward the guilt of the accused. The prosecution with the help
various evidence would be buttressing its stand. Thus, this presumption 42 under section 114 of
Evidence act, become an irrefutable presumption and Juris et de jure, which means conclusive
presumptions of law which cannot be rebutted by evidence. Additionally, section 114A of
Evidence Act, envisages presumption in cases of rape. Where a woman alleges that the sexual
intercourse was against her consent, the court shall presume that the rape is committed by the
accused43. Now it is on the accused to dislodge such presumption.
37
State of U.P v. Babu Ram, AIR 2000 SC 1735.
38
Tarseem Kumar v. Delhi Administration, A.I.R 1994 S.C 2585.
39
Section 7 of Indian Evidence Acy. 1872.
40
Section 8 of Indian Evidence Act, 1872.
41
Section 114 of Indian Evidence Act, 1872.
42
Suresh and Anr v State of Uttar Pradesh, A.I.R 2001 S.C 1344; Shahnaz v. Dr. Vijay A.I.R 1995 Bom. 30;
Pandurang Jivaji Apte v. Ramchandra, (1981) 4 SCC 569; Rajendra Kumar v. State of U.P (1998) 9 SCC 343;
Oriental Fire and General Insurance Company v. Bondili. A.I.R 1995 A.P 268; Lolo v. Durghatiya A.I.R 2001 M.P
188.
43
Fagnu Bhai v. State of Orrisa, 1992 CrLJ, 1808.
Section 30 of the Indian Evidence Act is also attracted. Section 30 of the Indian Evidence Act
has heading consideration of proved confessions affecting person making it and others jointly
trial for the same offence.
Section30. When more persons than one are being tried jointly for the same offence, and a
confession made by one such persons affecting himself and some other of such person is proved,
the court may take into consideration such confession as against such other person as well as
against the person who makes such confession.
In the case of Bishnu Prasad and another v. State of Assam 44 it was held that a confessional
statement, as is well known, is admissible in the evidence. It is a relevant fact. It may also form
the basis of the conviction, wherefore the court may have only to satisfy itself in regard to
voluntriness and truthfulness thereof and in the given cases some corroboration thereof. In the
case of Sidharth v. State of Bihar45 the court accepted the confessions as the evidence. In the
case of State of T.N. v. Kutty46, Bhagwan Singh v. State of M.P47, Sarwan Singh Ratam
Singh v. State of Punjab48, it was held in a cases where sufficient materials are brought on
record to lend assurance to the court in regard to truthfulness of the confession made, which is
corroborated by several independent circumstances lending assurance to the court in regard to
truthfulness of the confession made, which is corroborated by several independent circumstances
lending assurance thereto, even a retracted confession may be acted upon. In the present case the
one of the accused Rahul accepted his role in the rape and subsequently A1 and A2 were also
arrested.
The accused came to the house of victim in an inebriated mood and they abused the watchman
(PW1) of the building. After a few moments they went upstairs and the accused were
reprimanded by the victim for their insolent behaviour with the security guard (PW1).
Disgruntled with it they decided to teach her a lesson by raping her. This is confirmed by the
statement recorded under section 315 of Cr.PC, wherein under oath A3-Rahul deposed that he
along with A1 and A2 brutally raped the victim in order to take revenge.
44
Bishnu Prasad and another v. State of Assam (2007) 11 SCC 467
45
Sidharth v. State of Bihar (2005) 12 SCC 545
46
T.N. v. Kutty (2001) 6 SCC 550
47
Bhagwan Singh v. State of M.P (2003) 3 SCC 21
48
Sarwan Singh Ratam Singh v. State of Punjab AIR 1957 SC 637
Victim in her dying declaration stated that at 3:00 AM some people entered in her room, gagged
her and raped her. A3 deposed that after raping the fled from the place of occurrence and
subsequently they were seen by the security guard (PW1) at 4:00 AM fleeing from that place.
A2-Jayesh has given his alibi, which is defective and faulty, as he was seen by PW1 at site of
commission of offence at two occasions, once at arrival another at departure. Now keeping in
mind the presumptions, the burden of proof is on the accused to dislodge such presumption.
Nevertheless, the evidence adduced hereinbefore, abundantly establishes the chain of events,
which coupled with motive unerringly point towards the guilt49of the accused.
Thus, it is clear that the accused in furtherance of common intention gang raped the victim and
hence guilty u/s 376 of IPC. The circumstantial, medical, testimony and confession proves the
case of prosecution beyond reasonable doubt.
It is humbly submitted that for the charges under s. 354, the prosecution has divided and dealt
with the case as follows [2.4] Duty of Prosecution [2.5] Meaning of Modesty
It is duly submitted that the accused had the requisite motive to sexually abuse her and it has
been proved dutifully in the previous segment. In order to seek conviction under section 354,
50
the prosecution has to prove not only that the accused assaulted or used criminal force to the
woman but also that he did it with either the intent to outrage her modesty or the knowledge that
it would outrage her modesty.51Intention to outrage modesty of a woman, however, is not the
sole criterion of the offence. It can be committed by a person, assaulting or using criminal force,
if he knows that the modesty of the woman is likely to be affected by his act. The existence of
intention or knowledge, are essentially things of the mind, has to be culled out from various
circumstances in which and upon whom the alleged offence is alleged to have been committed 52.
However, what constitutes an outrage to modesty of a woman is nowhere defined. It can be
described as the quality of being modest and in relation to woman 'womanly propriety of
behaviour, scrupulous chastity of thought, speech and conduct; reserve or sense of shame
49
Lallu Manjhi v. State of Jharkhand, A.I.R 2003 S.C 854.
50
Girdhari Gopal v State of Madhya Bharat AIR 1953 MB 147.
51
Vidyadharan v State of Kerala AIR 2004 SC 536, (2004) 1 SCC 215; Aman Kumar v State of Haryana AIR 2004
SC 1497, (2004) 4 SCC 379; Vasudevan v State of Kerala (2006) Cr LJ 3173(Ker), 2006 (2) KLJ 289.
52
Shekara v State of Karnataka (2009) 14 SCC 76.
proceeding from instinctive aversion to impure or coarse suggestions'. It is a virtue attached to a
woman owing to her sex53.
Honourable Supreme Court in its landmark judgement of State of Punjab v. Major Singh 54,
Bachawat J speaking for the majority opined that- “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 anaesthesia, she may be sleeping, she may be unable to appreciate the
significance of the act, nevertheless, the offender is punishable under the section. A female of
tender age stands on a somewhat different footing. Her body is immature, and her sexual powers
are dormant. In this case, the victim is a baby of seven and half months old. She has not yet
developed a sense of shame and has no awareness of sex. Nevertheless, from her very birth she
possesses the modesty which is the attribute of her sex”. (Emphasis Supplied)
Keeping in mind the above-mentioned principle of law, it is clear that modesty of women is an
essential attribute of her sex which can be outraged even while victim is sleeping. Hence as it has
been previously proved that the accused barged into the room of the victim, it is evident beyond
the shadow of doubt that they gagged her and outraged her modesty by violating her under
section 354. Thenceforth it is perforce, that the accused A1, A2, A3 shall be held guilty and be
brought to justice.
ISSUE -3
53
Tarkeshwar Sahu v State of Bihar (Now Jharkhand) (2006) 8 SCC 560.
54
AIR 2004 SC 1677; Administrator, Josgiri hospital v Government of Kerala (2008) ILR 3 Ker 381, 2008 (2) KLJ
951; Tukaram Govind Yadav v State of Maharashtra (2011) Cr LJ 1501(Bom), 2012 Bom CR (Cri) 427; Aman
Kumar v State of Haryana AIR 2004 SC 1497; State of Madhya Pradesh v Sheo Dayal AIR 1956 Nag 8; Sadananda
Bargohain v State of Assam (1972) Cr LJ 658(Gau); Camilo Fernandez v State of Maharashtra (1988) 3 Crimes 179;
Satyendra Dayal Khare v State of Maharashtra (2005) 12 SCC 485; Pandurang Sitaram Bhagwat v State of
Maharashtra (2005) 9 SCC 44; Vishaka v State of Rajasthan AIR 1997 SC 3011.
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 322, 323, 326 AND 506
OF INDIAN PENAL CODE 1860?
It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (hereinafter will
be referred as A1, A2 AND A3 respectively) are guilty under section 323 55,32656 and 50657 of
IPC and Laxmi Devi (hereinafter will be referred as A4)
The prosecution would divide the contentions into 4 sub issues to deal with this issue [3.1]
Grievous hurt was caused voluntarily; [3.2] There was use of dangerous weapons and means;
[3.3] Threat to assault [3.4] Voluntarily caused hurt to the victim.
Ingredients -In order to attract Section 322, the Court has to see that the accused intended to
cause hurt, or that he knew that grievous hurt was likely to be caused and such grievous hurt is
actually caused. In the Param Dev v. State of H.P.58the grievous hurt was actually caused and
the accused should have known that his action was likely to cause grievous hurt. Nothing more
was needed to bring the offence under Section 322 I.P.C.
It is most respectfully submitted before this honourable court that A1, A2, A3 is guilty of
Voluntarily causing grievous hurt under section 322 of IPC. It must be brought to the notice that
in the mid night of 6th July, A1, A2, and A3 brutally raped the victim and specifically they had
hit the victim’s private body part and also other parts of body. 59They had every intention to rape
her and cause grievous hurt as it was pre-arranged plan in order to take revenge from the victim
and looking upon the medical examination report 60 it is clear that she was brutally assaulted
which made her unconscious and she finally died and they knowingly assaulted her as it is clear
from their intention that they wanted to teach her a lesson.61
55
Section 322 of Indian Penal Code, 1860
56
Section 326of Indian Penal Code, 1860
57
Section 506 of Indian Penal Code, 1860
58
Param Dev v. State of H.P., 1975 CrLJ 1346 (HP) :ILR (1975)HP 54.
59
Annexure-4; Rem Juris 1st National Virtual Moot Court Competition 2020
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Annexure-2; Rem Juris 1st National Virtual Moot Court Competition 2020
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Moot Proposition; Rem Juris 1st National Virtual Moot Court Competition 2020
The essential ingredients to attract Section 326 are:
(1) Voluntarily causing hurt;) (2.) hurt caused must be grievous hurt; and (3) the grievous
hurt must have caused by dangerous weapons or means.62
If a hurt is caused and the others of the crime are actuated by a common intention to cause the
said hurt, then no matter who actually did cause hurt, all the members of the group would be
vicariously liable for causing the grievous hurt.63Whether a particular article can per se cause any
serious wound or grievous hurt or injury has to be determined particular. What would constitute
a ‘dangerous weapon’ would depend upon the facts of each case and no generalization64
It is humbly submitted before this honourable bench that apart from ingredients of section 323
the ingredients of section 326 also fulfils. In the instant case looking upon the medical
examination report65 it is quite evident that some dangerous weapons and means have been used
as upon finding of the external examination of the victim all the clothes were blood stained. As
far as who actually used the weapon or means in causing hurt or did that jointly or that particular
weapons were dangerous or not is immaterial as generalization can’t be done about the weapon
nor about gravity of wounds as the injury was dangerous which ultimately proved to be fatal.
Therefore, the prosecution request to make them vicariously liable and convict them A1, A2 and
A3 under section 326 read with section 34 and 120 of I.P.C.
(i)To his person, reputation or property; or (ii) to the person, or reputation of any one in whom
that person is interested.
62
Prabhu v. Statte of M.P; AIR 2009 SC 745 (2008)17 SCC 381.
63
Matukdhari Singh v. Emproer, AIR 1942 Pat 376 :43
64
Prabbhu v. State of M.P. AIR 2009 SC 745 : (2008) 17 SCC 381
65
Annexure 2,Rem Juris National Moot Court Competiton,2020
(i)to cause alarm to that person, or (ii) to cause that person to do any act which he is not legally
bound to do as the means of avoiding the execution of such threat; or (iii) to cause that person to
omit to do any act which that person is legally entitled to do so as the means of avoiding the
execution of such threat.
Therefore, intention must be to cause alarm to the victim and whether he is alarmed or not is
really of no consequence. But material has to be brought on record to show that intention was to
cause alarm to that person66In instant case on 9th January 2010 when PW2 had scolded A1 then
A1 had warned Infront of PW3 that if he (PW2) continued to scold him again then he should be
ready for the consequences.67 As stated in the above mentioned that it doesn’t matter whether
victim was threatened or not and through material on record that is statement recorded U/S 161
Crpc,1973 of PW2 and PW3 it can be clearly deduced through the warning given by A1 that
there was every intention to threaten the victim.
It is not correct to say that under Section 503 the threat must be direct threat, that is, it must be in
the presence of the complainant. If the threat was uttered in the presence of some person with a
view to be communicated to the person threatened it must be said that the person who uttered the
threat, threatened the person for whom the threat was meant. 68In the instant case also although
the threat was given to the victim’s father but it was with the view to be communicated to the
victim and from that day there was a daily routine that A1 regularly insulted the victim for not
bringing dowry and also she was mentally tortured and also physically abused69
However, the co-accused A2 &A3 in the present case have also been charged under Section 506
IPC. The aforesaid conclusion takes me to the issue whether the accused persons can be
convicted with the aid of Section 34 IPC. Section 34 IPC stipulates that the act must have been
done in furtherance of the common intention in order to incur joint liability. In the present case
the testimony of deceased clearly proves that all the accused persons acted in concert with each
other and committed crime in one and several transactions.
66
Amulya Kumar Behera v. Nabaghana Behera 1995 CrLJ 355 (Ori)
67
Moot Proposition &Annexure-4; Rem Juris 1st National Virtual Moot Court Competition 2020
68
Chandi Charan Dutta v. Bhabataran Dey, (1964) 2 CrLJ 85 (Cal.)
69
Moot Proposition ; Rem Juris 1st National Virtual Moot Court Competition 2020
Therefore, in view of the aforesaid discussion, all accused stand convicted of offence under
Section 506 read with section 34 of IPC.
Where the accused has been proved by evidence to have been blows and kicks to the deceased
simply with the intent to give him a thrashing, he should be convicted under Section 323in the
absence of proof that he intended to cause death, or grievous hurt.70
In the instant case even after knowing that the victim will not be able to live for more than an
hour on account of the internal bleeding in the stomach then also A4 in the moment of anger with
the intention of revenge started abusing her and kicked victim’s stomach several times.71
Therefore, A4 is liable under section 323 of IPC for voluntarily causing hurt.
ISSUE -4
WHETHER THE ACCUSED ARE GUILTY UNDER SECTION 299 AND 302 OF
INDIAN PENAL CODE 1860?
It is humbly submitted that the accused Mr. Vishnu, Mr. Jayesh and Mr. Rahul (hereinafter will
be referred as A1, A2 AND A3 respectively) are guilty under section 29972,and 30273 of IPC.
The prosecution would divide the contentions into 4 sub issues to deal with this issue [4.1]
Motive [4.2] Complete chain of Circumstantial evidence [4.3] Understanding the dying
declaration [4.4] The Statement recorded u/s 161 CrPC is acceptable [4.5] confession u/s 164 of
CrPC [4.6] Medical evidence
[4.1] Motive
In Sanaulla Khan v. State of Bihar 74 Where other circumstances lead to the only hypothesis
that the accused has committed the offence, the Court cannot acquit the accused of the offence
merely because the motive for committing the offence has not been established in the case.
70
Empror v. Saberali, AIR 1920 Cal 401: 21 CrLR (Raj) 465.
71
Moot Proposition &Annexure-3; Rem Juris 1st National Virtual Moot Court Competition 2020
72
299 of Indian Penal Code, 1860
73
302 of Indian Penal Code, 1860
74
Sanaulla Khan v. State of Bihar, (2013) 3 SCC 52; 2013 CrLJ 1572
Murder charge when has been squarely proved by circumstantial evidence coupled with dying
declaration, motive is not important. 75Murder charge when is proved by circumstantial evidence
to the hilt, absence of motive is not relevant.76
Where bodily injury sufficient to cause death is actually caused it is immaterial to go into
question as to whether the accused had intention to cause death or knowledge that the act will
cause death.77
In the instant case also all though A1, A2, A3 intention was only to rape and to teach victim a
lesson and there was no motive to kill her but even in the absence of motive still, they can be
convicted under section 302 of I.P.C.
This case is bereft of any direct evidence. The facts happened so suddenly that it did not leave
behind much direct evidence. In this case the prosecution will be reconstructing the
circumstances before this honourable court. With the help of such surrounding circumstances the
fact in issue may be inferred to be proved or disproved. To establish the case of circumstantial
evidence three requirements must be meted:
In D.Yohannan v. State of Kerala82 it was held that an act is said to cause death when death
results either from the act directly or results from some consequences necessarily or naturally
75
Amar Singh Guman v. State of Gujarat, (1987) 1 Crimes 302 (Guj).
76
Parimal Banerjee v. State of W.B., 1986 CrLJ 220 (Cal)
77
In re, Thangaavelu,1972 CrLJ 390 (Mad);State of Bihar v. Pasupati Singh,1973 CrLJ 1832 (SC) : (1974) 3 SCC
376: AIR 1973 SC 2699.
78
Hanumant Govind Nargundkar v. State of M.P, A.I.R 1952 S.C 343.
79
Umedbhai v. State of Gujarat, A.I.R 1978 S.C 424.
80
State of U.P v. State of Gujrat, A.I.R 1992 S.C 424.
81
Gade Laxmi Mangraju v. State of A.P, A.I.R 2001 S.C 2677; Prem Thakur v. State of Punjab, A.I.R 1983 S.C
446.
82
D.Yohannan v. State of Kerala, AIR 1958 Ker 207 : 1958 CrLJ 1021.
flowing from such act and reasonably contemplated as its result. The prosecution humbly
submits before the honourable court that death of the victim was the consequences of rape and
causing grievous hurt.
The circumstance relied upon must be found to have been fully established and the cumulative
effect of all these facts so established must be consistent only with the hypothesis of guilt. But
this is not to say that the prosecution must meet any and every hypothesis put forward by the
accused however far- fetched and fanciful it might be. Nor does it mean that prosecution
evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is
reasonable and not otherwise.83It is humbly submitted before this honourable bench that
complete chain is formed and it is requested to convict them under section 302 of I.P.C. Even if
victim has not named the accused that who has raped her but it is quite evident from the above
submissions that A1, A2, A3 had brutally assaulted and raped her. There was full planning of
rape, all the accused were present at the place of incidence, watchmen also saw two man coming
out of the apartment. Moreover, Rahul has already confessed his and A1, A2 guilt under the
statement recorded U/S 315 CrPC 1973. So there is no reasonable ground that on the slightest
doubt prosecution evidence should be rejected as complete chain is formed.
Arabindra Mukherjee v. State of West Bengal 84 it was held that once the accused was last
seen with the deceased, the onus is upon him to show that either he was not involved in the
occurrence at all or that he had left the deceased at her home or at any other reasonable place. To
rebut the evidence of last seen and its consequences in law, the onus was upon the accused to
lead evidence in order to prove his innocence. It is humbly submitted before this honourable
bench that on 6th of July, 2014 when all the person were out of station then A1 along with A2 and
A3 had come to the house in the midst of the night 85 and subsequently planned to teach her a
lesson and A3 have already made his statement about A1 ,A2 & and his occurrence and they
have failed to lead evidence in order to prove their innocence.
The plea of alibi is required to be proved with certainty so as to completely exclude the
possibility of the presence of the accused at the place of occurrence. 86A2 has not proved with
83
State of U.P. v. Ashok Kumar Srivastava, 1992 CrLJ 1104 (SC) : (1962) 2 SCC 86 : AIR 1992 SC 840.
84
Arabindra Mukherjee v. State of West Bengal, 2012 AIR(SCW) 1032 : 2012 CrLJ 1207
85
Moot Proposition; Rem Juris 1st National Virtual Moot Court Competition 2020
86
Shaikh Sattar v. State of Maharashtra [(2010) 8 SCC 430}].
certainty that he was not present at the occurrence even if he left home he hasn’t proved that its
difficult for him to reach at the occurrence place at the time of incident. Moreover, A3 has
specifically mentioned in statement recorded/S 313 CrPC 1973 that A2 had raped the victim.
87
Therefore, it is requested that A2 plea of alibi should be rejected.
In the case of Vishwanath and others v. State of Tamil Nadu (represented by inspector of
police)88 the prosecutrix was found in the naked condition in the road. The court accepted the
evidence of villager who saw the prosecutrix in that situation and with the help of medical
evidence the accused were convicted. In the present case statements of Security Guard (PW1),
Mr. Satya Prakash (PW2), Mr. Rafi (PW3), Ms. Vijyalaxmi(PW4) and Mrs. Sharma(PW5),
recorded u/s 161 of CrPC corroborates the case.
In the case of Dilip and anr. v. State of M. P89 “it was held that “Conviction for an offence of
rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and
other circumstances such as the report of chemical examination.” In the present case the
prosecutrix gave the testimony in the presence of judicial magistrate 1st class that she was raped
thrice and even Laxmi attacked her and kicked her in the stomach for several times when she
entered the ICU. Also, the medical evidence shows the internal bleeding in her stomach, thus it
corroborates the case as well.
One important aspect of this case is the dying declaration of the victim. Dying declaration is a
statement of the deceased explaining either his cause of death or the circumstances in which his
death has happened and it is relevant under section 32(1)90 of Evidence Act. Circumstances must
bear a proximate relation with the cause of death 91. It is presumed by law that a dying man would
not lie92. It is on this premises, which is considered strong enough to set off the need that the
87
Annexure-4; Rem Juris 1st National Virtual Moot Court Competition 2020
88
Vishwanath and others v. State of Tamil Nadu (2008) 5 SCC 354
89
Dilip and anr. v. State of M.P AIR 2001 SC 3049
90
Section 32(1) of Indian Evidence Act, 1872
91
Pakala Narayan Swamy v. Emperor, A.I.R 1939 P.C 47, Sharda Birdichand Sharda v. State of Maharashtra, A.I.R
1984 S.C 1622
92
Queen Empress v. Abdullah (1885) ILR All. 385.
maker of the statement should state so on oath and be cross examined by person who is sought to
be implicated93
When oral evidence is credible and cogent, the medical evidence to the contrary would be
inconsequential.100Although it not mentioned coherently that there was injury on the private part
but oral evidence given by A3 has more value and can be concluded that she was brutally
assaulted and was succumbed to death.
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:
1. Convict Mr. Vishnu guilty for voluntarily causing grievous hurt, voluntarily causing
grievous hurt by dangerous weapons or means, criminal intimidation , assaulting or using
criminal force to women with intent to outrage her modesty, dowry death, rape, gang rape
93
Padam Ben Shamal Bhai v. State of Gujarat, 1991 SCC (Cri) 275.
94
Khushal Rao v. State of Bombay A.I.R 1958 S.C 22.
95
Annexaure 3; Rem Juris 1st National Virtual Moot Court Competition,2020
96
Laxmi v. Om Prakash, A.I.R 2001 S.C 2383
97
Kusa v. State of Orrisa, (1980) 2 SCC 207; Oza V. State of Bihar, A.I.R 1993 S.C 374.
98
K.R Reddy v. The Public Prosecutor, A.I.R S.C 1994; State of U.P v. Ram Sewak, A.I.R 1977 S.C 472; P.V
Radhakrishnan v. State of Karnataka, A.I.R 2003 S.C 2859.
99
Kamla v. State of Punjab, A.I.R 1993 S.C 374.
100
Anil Kumar v. State of U.P; AIR 2004 SC 4662: (2004) 13 SCC 257 :2004 CrLJ 4881.
murder, cruelty, criminal conspiracy defined under the section 322, 326,503 read with
37/34 ,354, 376D 3o4-B, 375,300, 498A,120-A read with 37,37 of I.P.C.
2. Convict Mr. Jayesh and Rahul for voluntarily causing grievous hurt, voluntarily causing
grievous hurt by dangerous weapons or means, criminal intimidation, assaulting or using
criminal force to women with intent to outrage her modesty rape, gang rape, murder
defined under section 322, 326, 503 read with 37/34, 354, 375, 376D, 300, 120-A of
I.P.C.
3. Convict Laxmi Devi for cruelty, dowry death, voluntarily causing hurt defined under the
section 498A, 304-B,321of I.P.C.
4. Convict Mr. Rohan for cruelty, dowry death defined under the section of 498A, 304-B of
I.P.C.
Declare a sentence of life imprisonment for all the accused
AND/OR
Pass any other order that it may deem fit in the favour of the prosecution to meet the ends of
equity, justice and good conscience.
For this act of kindness, the prosecution shall duty bound forever
DATE: **
PLACE:
Sd/-