MEMORIAL ON THE BEHALF OF DEFENCE

UNIVERSITY INSTITUTE OF LEGAL

STUDIES, PUNJAB UNIVERSITY,
CHANDIGARH
MOOT MEMORIAL

BEFORE

THE HON’BLE COURT OF SESSIONS

IN THE MATTERS OF:

STATE………………………………………………………. PROSECUTION

V.

ROHAN and Others …………………………………………….……………...DEFENCE

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

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MEMORIAL ON THE BEHALF OF DEFENCE

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES

2. LIST OF ABBREVIATIONS

3.. STATEMENT OF FACTS

4. STATEMENT OF JURISDICTION

5. ISSUES RAISED

6. ARGUMENTS ADVANCED

7. PRAYER

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MEMORIAL ON THE BEHALF OF DEFENCE

INDEX OF AUTHORITIES

STATUTES REFERRED:

1 INDIAN PENAL CODE,1860

2 CODE OF CRIMINAL PROCEDURE,1950

BOOKS REFERRED:

1. THE INDIAN PENAL CODE RATANLAL AND DHEERAJLAL

VOLUME 1
2. THE INDIAN PENAL CODE RATANLAL AND DHEERAJLAL
VOLUME 2
3. CRIMINAL PROCEDURE, R.V. KELKAR

DICTIONARY CONSULTED:

1. BLACK’S LAW DICTIONARY (9TH ED. 2009)

DYNAMIC LINKS:

1. www.scconline.com
2. www.lawfinder.com
3. www.casemine.com
4. www.lexisnexis.com
5. www.manupatra.com

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MEMORIAL ON THE BEHALF OF DEFENCE

CASES REFERRED:

LIST OF ABBREVIATIONS

S.NO ABBREVIATION FULL FORM

1. AIR ALL INDIA REPORTER

2. ALL. Allahabad

3 Anr. Another

4 Bom. Bombay

5 CrPc Criminal Procedure Code

6 CrLj Criminal Law Journal

7 Edn. Edition

8 Ors. Others

9 Pat. Patna

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MEMORIAL ON THE BEHALF OF DEFENCE

10 Ker Kerala

11 I.e That is

12 ILR Indian Law Reporter

STATEMENT OF FACTS:

1. That Rohan and Simran were studying in Raghubir college, Patiala and had mutual liking for each
other. Gradually the liking transformed into love and they decided to get married.
2. That Rohan belonged to a Scheduled Caste family whereas Simran belonged to an Upper Caste
Brahmin Family. Rohan’s Parents went to meet Simran’s house to meet her parents.
3. That Mr. Varun Sharma who is Simran’s father along with his son Gaurav Sharma on becoming
aware of the relationship started abusing Rohan and his father and addressed them as
“SaalaChura/ SaalaChuri”.
4. That on 14.01.2015, at about 6 A.M Rohan and Simran ran away from their houses.
5. That on knowing this Mr. Sharma filed a complaint before the police. AnFIR was registered
against Rohan and his Parents under Section 363,366,34 of IPC, 1860.
6. That Mr. Alok who is Rohan’s father filed a complaint against Mr. Sharma for abusing his family
and an FIR was registered against him under the provisions of Section 3 (x) of the Scheduled
caste and Scheduled tribes (Prevention of Atrocities) Act, 1989.
7. That on 16.01.2015 Rohan and Simran solemnized their marriage at AryaSamaj Mandir,
Chandigarh. A Marriage certificate was also issued by the mandir regarding the same.
8. That on 18.01.2015, the couple decided to come back to Patiala and when they reached Patiala
bus stand, Rohan was arrested and Simran was also taken in custody. Later the custody of
Simran was handed over to her parents.
9. That on 19.01.2015 Statement of Simran was recorded by the Area magistrate under Section
194, CrPC where she denied marriage and told that she was forcefully taken by Rohan against
her wishes.
10. That Simran also levelled allegations of rape against Rohan, and she was sent for medical
examination where it was observed that she was subjected to intercourse, however there were
no injuries to her private parts or any other part of the body. Offence under Section 376, IPC was
also added to the charge against Rohan.

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STATEMENT OF JURISDICTION

It is humbly submitted before the honorable court that the present case be
filed under section
209 1  read with section 177 2 of Criminal Procedure Code, 1973.

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ISSUES RAISED

1. Whether or not Rohan and his parents committed any act which
amounts to an offence under Section 363, 366, 34 of the Indian Penal
Code?
2. Whether or not Rohan is liable under Section 376 of the Indian Penal
Code?

SUMMARY OF ARGUMENTS

1. Whether or not Rohan and his parents committed any act which amounts to
an offence under Section 363, 366, 34 of the Indian Penal Code?

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2. Whether or not Rohan is liable under Section 376 of the Indian Penal Code?

ARGUMENTS ADVANCED

1. Whether or not Rohancommitted any act which amounts to an offence

under Section 363, 366, 34 of the Indian Penal Code?
That Rohan and Simran were studying in Raghubir college, Patiala and
had mutual liking for each other. Gradually the liking transformed into
love and they decided to get married.
That Simran’s parents were against their relationship and declined to
accept it as Rohan belonged to the Scheduled Caste and they belonged to
an Upper caste brahmin family. That on 14.01.2015, at about 6 A.M
Rohan and Simran ran away from their houses. That on knowing this Mr.
Sharma filed a frivolous complaint before the police. An FIR was
registered against Rohan and his Parents under Section 363,366,34 of
IPC, 1860.
That any of the essentials in order to commit an offence under the said
sections are not fulfilled. Section 363, of the Indian Penal Code, 1860
lays down as under-
363. Punishment for kidnapping. —Whoever kidnaps any person from
1[India] or from lawful guardianship, shall be punished with
imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.
Kidnapping from Lawful guardianship is defined under Section 361 of
IPC which reads as under-
361. Kidnapping from lawful guardianship.—Whoever takes or entices
any minor under 1[sixteen] years of age if a male, or under 2[eighteen]
years of age if a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship. Explanation.—The words “lawful
guardian” in this section include any person lawfully entrusted with the
care or custody of such minor or other person.
That the most essential ingredient that need to be fulfilled include taking
or enticing away a minor or a person of unsound mind. Simran is neither

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a minor and nor a person of unsound mind, she is a college going adult
and hence an offence under Section 361 is not constituted. The term
minor in this case means a minor aged under 16 years if a male and a
minor aged under 18 years if a female. That in the present case the said
female is a college going student and is above the age of 18 years and
hence it doesn’t amount to an offence under Section 361 of IPC.
366. Kidnapping, abducting or inducing woman to compel her marriage,
etc.—Whoever kidnaps or abducts any woman with intent that she may
be compelled, or knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she may be forced or
seduced to illicit intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; 1[and whoever, by means of
criminal intimidation as defined in this Code or of abuse of authority or
any other method of compulsion, induces any woman to go from any
place with intent that she may be, or knowing that it is likely that she will
be, forced or seduced to illicit intercourse with another person shall be
punishable as aforesaid.
The offence under Section 366 of IPC is not made out against the
accused, according to the facts and circumstances of the case. As in order
to constitute an offence u/s 366, IPC there must be either kidnapping,
abduction or inducement either of which is absent in the present
case.That the most essential ingredient in case of kidnappings that needs
to be fulfilled include taking or enticing away a minor or a person of
unsound mind. Simran is neither a minor and nor a person of unsound
mind, she is a college going adult and hence an offence under Section
361 is not constituted. The term minor in this case means a minor aged
under 16 years if a male and a minor aged under 18 years if a female.
That in the present case the said female is above the age of 18 years and
hence it doesn’t amount to an offence under Section 361 of IPC. There is
no charge of abduction against the accused and hence it is not the case of
abduction either.
Simran left with Rohan on her own accord.Rohan and Simran studied
together in Raghubir college, Patiala and had mutual liking for each
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other. Gradually the liking transformed into love and they decided to get
married.That Simran’s parents were against their relationship and
declined to accept it as Rohan belonged to the Scheduled Caste and they
belonged to an Upper caste brahmin family. That on 14.01.2015, at about
6 A.M Rohan and Simran ran away from their houses. That on knowing
this Mr. Sharma filed a frivolous complaint before the police. An FIR
was registered against Rohan and his Parents under Section 363,366,34
of IPC, 1860.
Simran was more than 18 years of age at the time of occurrence. She
accompanied the accused, Rohan on various indicated places and did not
make any complaint against him. She accompanied him to Chandigarh
and got married in a temple there. They were arrested from Patiala Bus
stand. Up until then no efforts were made by Simran in order to Contact
her family or police where calling facilities are readily available. She
visited various public places with Rohan during the span of 5 day but did
not cause any alarm, did not try to contact any family members or the
police if she was under any kind of threat or being forced in any manner.
Simran denies getting married to Rohan whereas the marriage certificate
issued by Arya Samaj Temple as well as the statement of the pandit
during the investigation indicate the opposite. This is a typical case of
blackmailing and pressure from her family and her statements are a result
of tutoring her parents. She did not raise any resistance at the time of
commission of sexual intercourse with her by him. She did not avail the
opportunity of running from his company despite adequate opportunities
in the manner described here-in-above.She did not raise any hue and cry
when she was travelling with accused from one place to another. She did
not make any efforts to show that she has been forcibly taken by the
accused persons and she was subjected to rape.
The circumstances of the case indicate that any of the essentials in order
to commit an offence under the said sections are not fulfilled.

In Saleem v. State of Uttarakhand, (Uttarakhand) (Nainital) 1: 2018 (1)

NCC 275, where facts were also similar to the present case the court held
1
2018 (1) NCC 275

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MEMORIAL ON THE BEHALF OF DEFENCE

that the prosecutrix in this case travelled with the accused persons from
Ramnager to Rudrapur and stayed for several days and thereafter stayed
at Lucknow for some time, but she did not raise any hue and cry when
she was travelling with accused from one place to another. She did not
make any efforts to show that she has been abducted by the accused
persons and she was subjected to rape. Thereafter, she was taken from
Lucknow to Sheeshgarh. She did not raise any hue and cry to inform the
police personnel when she found the police at railway station. From the
conduct, behavior and the statement of prosecutrix from the very
inception, it would reveal that she went with the accused persons with her
own volition. Since from the conduct of prosecutrix itself, it is proved
that she being major had gone with her own violation with the accused
persons and she never made any complaint before the Police on the way
and remain with the accused persons with her own will. Thus, her
conduct itself shows that she has not made true and correct statement
before the trial court.

2. Whether or not Rohan is liable under Section 376 of the Indian Penal
Code?
376. Punishment for rape. —
(1) Whoever, except in the cases provided for by sub-section (2),
commits rape shall be punished with imprisonment of either description
for a term which shall not be less than seven years but which may be for
life or for a term which may extend to ten years and shall also be liable to
fine unless the women raped is his own wife and is not under twelve
years of age, in which cases, he shall be punished with imprisonment of
either description for a term which may extend to two years or with fine
or with both: Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.
Rape as been defined u/s 375 of the Indian Penal Code.
1[375. Rape.—A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:—
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MEMORIAL ON THE BEHALF OF DEFENCE

(First) — Against her will.

(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death or of
hurt.
(Fourthly) —With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the administration
by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of
that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years
of age. Explanation.—Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape.]
It is most humbly submitted before this Hon’ble court that there was
thepresence of free consent and was given voluntarily. Consent
includes agreement, communityof feeling and opinion, unanimity, to
agree not to resist or prevent, to acquiesce in, agree topermit, to be
willing to undertake. For the genuineness of the consent the parties
must be “adidem”, ie, agree on “same thing in the same sense”.
However. in Indian Penal Code, 1860 the word consent is not defined
in a positive way, but what cannot be called as a consent is explained
under section 90 of this code which reads as follow: -
90. Consent known to be given under fear or misconception. —A
consent is not such a consent as it intended by any section of this
Code, if the consent is given by a person under fear of injury, or
under a misconception of fact, and if the person doing the act knows,
or has reason to believe, that the consent was given in consequence of
such fear or misconception; or Consent of insane person.—if the
consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of
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that to which he gives his consent; or Consent of child.—unless the

contrary appears from the context, if the consent is given by a person
who is under twelve years of age.
In the present case it may be noted that the consent of prosecutrix has
not been obtained under any fear of injury or even under
misconception. The prosecutrix is a mature adult who is able to
understand the consequences of her own actions.Further, if we focus
on the medical evidence on record there is nothing as such which can
prove thisfact that the prosecutrix had not given her consent. The
medical examination revealed that there were no injuries to the private
part or any other parts of the body.
She had sufficient intelligence to understand the significance and
moral quality of the act she was consenting to. Furthermore, the
couple was married and hence the question of rape does not arise in
the present case.
In Saleem v. State of Uttarakhand, (Uttarakhand)2(Nainital):2018
(1) NCC 275, where facts were also similar to the present case the
court held that
From perusal of the statement made by the prosecutrix before the
Magistrate under Section 164 CrPC., 1973 it shows that any of the
accused persons did not commit rape with the prosecutrix. On the
other hand, it would reveal that when the prosecutrix was with the
accused Saleem, she slept with him with her own volition. She
travelled with the accused persons from Ramnager to Rudrapur and
stayed for several days and thereafter stayed at Lucknow for some
time, but she did not raise any hue and cry when she was travelling
with accused from one place to another. She did not make any efforts
to show that she has been abducted by the accused persons and she
was subjected to rape. Thereafter, she was taken from Lucknow to
Sheeshgarh. She did not raise any hue and cry to inform the police
personnel when she found the police at railway station. From the
conduct, behavior and the statement of prosecutrix from the very
inception, it would reveal that she went with the accused persons with
her own volition. Till her statement was recorded under Section 164
2
2018 (1) NCC 275

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CrPC., 1973 she did not raise any allegation of rape against accused
persons. The court held that the statement of prosecution witnesses,
prosecutrix are not reliable. It is settled proposition of law that a man
can tell a lie but the circumstances cannot. Since from the conduct of
prosecutrix itself, it is proved that she being major had gone with her
own violation with the accused persons and she never made any
complaint before the Police on the way and remain with the accused
persons with her own will. Thus, her conduct itself shows that she has
not made true and correct statement before the trial court.
In Pandurang Sitaram Bhagwat v. State of Maharashtra, 3the
supreme court rules that 2005 (1) RCR Crl. 859 (S.C.). : [2005 (1) All
India Criminal LR (S.C) 966] So in the present scenario, prevailing in
our society, it could not be completely ruled out, that a young girl, or
a woman, would, in no case, raise false allegations of rape, against the
accused. In view of the principle of law, laid down, in the aforesaid
authority, the facts, circumstances and the evidence, discussed above,
it can be safely concluded that the prosecutor raised false allegations,
against the accused, that she was subjected to rape.
Secondly that the burden of Proof lies solely on the prosecution that
the prosecutrix was subjected to rape. The prosecution has failed to
prove that in this case.
Narender Kumar v. State (NCT of Delhi)2012(3) RCR (Criminal)
66.4 However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively each ingredient of the offence it
seeks to establish and such onus never shifts. It is no part of the duty
of the defence to explain as to how and why in a rape case the victim
and other witness have falsely implicated the accused. Prosecution
case has to stand on its own legs and cannot take support from the
weakness of the case of defence. However great the suspicion against
the accused and however strong the moral belief and conviction of the
court, unless the offence of the accused is established beyond
reasonable doubt on the basis of legal evidence and material on the
record, he cannot be convicted for an offence. There is an initial
3
2005 (1) RCR Crl. 859
4
2012(3) RCR (Criminal) 66.

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presumption of innocence of the accused and the prosecution has to

bring home the offence against the accused by reliable evidence. The
accused is entitled to the benefit of every reasonable doubt. (Vide:
Tukaram and Anr. v. The State of Maharashtra 5, AIR 1979 SC 185;
and Uday v. State of Karnataka, 2003(2) R.C.R. (Criminal) 99:
2004(1) 6Apex Criminal 13: AIR 2003 Supreme Court 1639)."
1. Thirdly that on 16.01.2015 Rohan and Simran solemnized their
marriage at Arya Samaj Mandir, Chandigarh. A Marriage certificate
was also issued by the mandir regarding the same. During the
investigation statement of the pandit was also recorded who told that
he has solemnized the marriage and issued the certificate. Hence as
the prosecutrix being the wife of Rohan and being above 15 years of
age, it does not come within the exception of Section 375 of the
Indian Penal Code.

PRAYER

5
AIR 1979 SC 185
6
2003(2) R.C.R. (Criminal) 99 : 2004(1)

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