TC - 511 Defence

TC_511
TC
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
WRITTEN SUBMISSION ON BEHALF OF DEFENCE

5TH KIIT NATIONAL MOCK TRIAL COMPETITION, 2019
[TABLE OF CONTENTS]
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .............................................................................................. III

INDEX OF AUTHORITIES ................................................................................................ IV
STATEMENT OF JURISDICTION ................................................................................... VI
STATEMENT OF FACTS .................................................................................................. VII
STATEMENT OF CHARGES ......................................................................................... VIII
THE ACCUSED HAS BEEN CHARGED UNDER SECTION 328 OF THE TRINDIAN PENAL CODE,
1860 ................................................................................................................................ VIII
1860 ................................................................................................................................ VIII
1860 ................................................................................................................................ VIII
1860 ................................................................................................................................ VIII
SUMMARY OF ARGUMENTS .......................................................................................... IX
ARGUMENTS ADVANCED .................................................................................................. 1
[1.] THE ACCUSED IS NOT GUILTY UNDER SECTION 328 OF THE TRINDIAN PENAL CODE,
1860 ........................................................................................................................................ 1
[2.]THE ACCUSED IS NOT GUILTY UNDER SECTION 363 OF THE TRINDIAN PENAL CODE,
1860 ........................................................................................................................................ 3
1860 ........................................................................................................................................ 6
[4.] THE ACCUSED IS NOT GUILTY UNDER SECTION 6 OF THE PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012 READ WITH SECTION 376 OF THE TRINDIAN PENAL
CODE, 1860 ............................................................................................................................ 8
[4.1] PRESUMPTION OF GUILT IS NOT ABSOLUTE .................................................................. 8
[4.1.1] THE BURDEN OF PROVING INNOCENCE ONLY FALLS UPON THE ACCUSED AFTER
PROSECUTION HAVE ESTABLISHED FOUNDATIONAL FACTS. ......................................... 8
[4.1.2] BURDEN OF PROOF LAID ON THE ACCUSED IS “BEYOND PREPONDERANCE OF
PROBABILITY” AND NOT “BEYOND REASONABLE DOUBT” ............................................ 9
[4.2] STATEMENT OF THE ACCUSED IS NOT SUFFICIENT TO MAINTAIN PROSECUTION ........... 9

[4.3] CONFESSION MADE BY ACCUSED INVALID ................................................................ 10
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

iii|Page
[INDEX OF AUTHORITIES]
INDEX OF AUTHORITIES
Cases
Ashim Das v. State of Assam, 1987 Cri L.J. 1533 (Gau). ....................................................... 11
Babu v. State of Kerala, (2010) 9 S.C.C. 198. ........................................................................... 8
Badanbai Vidya Lahore & Ors v. State of Chhattisgarh, 2012 Cri L.J. 2350 (Chh). ................ 3
Baldeo Raj v. State of Punjab, (1939) 42 P.L.R. 25. ................................................................. 4
Bhaskarrao and Ors. vs. State of Maharashtra, (2018) 6 S.C.C. 591. ........................................ 4
CCE v. Duncan Agro Industries, A.I.R. 2000 S.C. 2901......................................................... 11
Chathu v. Gundakutty P, A.I.R. 1958 Ker 121. ......................................................................... 4
In Re: Abdul Sathar A.I.R. 1928 Mad 585. ............................................................................... 4
In Re: Neela Bose, (1868) 10 WR (Cr) 33................................................................................. 3
In Re: Saw Min, (1939) Ran 97. .............................................................................................. 10
Lukesh Alias Lokesh, Son of Jethuram Marar v. State of Chhattisgarh, 2012 Cri L.J. 384
(Chh). ..................................................................................................................................... 3
Moniram Hazarika v. State of Assam, (2004) 5 S.C.C. 120. ..................................................... 4
Narayan v. State of Madhya Pradesh, 2003 Cri L.J. 268. ........................................................ 10
Noor Aga v. State of Punjab, (2008) 56 S.C.C. 417. ................................................................. 9
Padam Singh v. State of Himachal Pradesh, 2016 (2) Crimes 401 (HP). ................................ 10
Rajinderv v. State of HP, 2009 Cri L.J. 4133 (SC). ................................................................. 10
Raju@Balachandran v. State of Tamil Naidu, A.I.R. 2013 S.C. 983. ....................................... 4
Ram Khelawan v. State of Madhya Pradesh, 2014 (4) C.G.L.J. 73. ......................................... 2
Ram Khelawan v. State of Madhya Pradesh, A.I.R. 1926 Bom 518. .................................... 1, 2
Rameshwar Prasad Srivastava 1984 Cri L.J. 996 (All). ............................................................ 7
Rasiklal M. Gangani v. Government of Goa and Ors., 2004 (106 (4)) Bom L.R. 626. ............. 6
Romesh Chandra Arora v. The State, A.I.R. 1960 S.C. 154...................................................... 6
S.Arul Raja v. State of T.N., (2010) 8 S.C.C. 233; Mohan Singh v State of Bihar, (2011) 9
S.C.C. 272. ............................................................................................................................. 1
Sadhu v. State of Maharashtra, 2019 ALL M.R. (Cri) 342. ...................................................... 9
Sahid Hossain Biswas v. State of West Bengal, 2017 CAL L.T. 243 (HC). ............................. 9
Shyam & Anr v. State of Maharashtra, A.I.R. 1995 S.C. 2169. ................................................ 4
State of Maharashtra V. Chandraprakash Kewalchand Jain, (1990) 1 S.C.C. 550. ................... 5
State of Maharashtra v. Mayer Hans George A.I.R. 1965 S.C. 722. ......................................... 2
State of Uttar Pradesh v. Ram Veer Singh and Ors, 1981 Cri L.J. 47 (All). ............................. 4

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[INDEX OF AUTHORITIES]
State v. N K, A.I.R. 2000 S.C .1812. ....................................................................................... 10

State v. Prakash Mahadeo Mane, 1980 Cri L.R. 146 (Bom). .................................................... 7
State v. Suresh Kumar, A.I.R. 2009 S.C. 1109. ......................................................................... 3
The State v. Babulal, A.I.R. 1965 Raj 90. ................................................................................. 3
Tuna v. State of West Bengal, 2009 Cri L.J. 1996 (Cal). ........................................................ 10
Statutes
The Trindian Penal Code, 1860, §.328 ................................................................................ 1,3,6
Books
GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW, 378 (2nd ed., Sweet and Maxwell
2015). ..................................................................................................................................... 2
PSA PILLAI, PSA PILLAI’S CRIMINAL LAW 792 (KI Vibhute, 12th ed.,LexisNexis 2016). ........ 3
RATANLAL & DHIRAJLAL, RATANLAL & DHIRAJLAL’S LAW OF CRIMES 3583 (28th ed., Bharat
Law House 2018). .......................................................................................................... 1,6,10

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[STATEMENT OF JURISDICTION]
STATEMENT OF JURISDICTION
The Defence 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. Wareena Nayak. Mr. Shukla promised that he would help Ms. Wareena
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 CHARGE]
STATEMENT OF CHARGES
I.
1860
II.
1860
III.
1860
IV.
1860

viii|Page
[SUMMARY OF ARGUMENTS]
SUMMARY OF ARGUMENTS
I. THE ACCUSED IS NOT GUILTY UNDER SECTION 328 OF THE TRINDIAN PENAL
CODE, 1860.
Mr. Tridev Shukla is not guilty under this present section that is under Section 328 of the
Trindian Penal Code. There is no substantial evidence to prove the intent of the accused
to commit an offence by attempting to or administering the poison to Ms. Wareena
Nayak.
II. THE ACCUSED IS NOT GUILTY UNDER SECTION 363 OF THE TRINDIAN PENAL
CODE, 1860.
The accused has been falsely accused of taking the minor out of her lawful guardianship
whereas in reality the victim voluntarily went with the accused out of the care of her parents.
III. THE ACCUSED IS NOT GUILTY UNDER SECTION 506 OF THE TRINDIAN PENAL
CODE, 1860.
The Accused in this present case, Mr. Tridev Shukla has not committed the offence of
criminal intimidation. For him to be liable of the offence, there has to be a presence of
both the intent as well as the act must actually have been done which is not prevalent in
the present case.
IV. THE ACCUSED IS NOT 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, The District Commissioner of Police, has been wrongfully charged for the
crime of Aggravated Penetrative Sexual Assault under both the POCSO as well as under the
Trindian Penal Code. The Accused is innocent of such charges and his actions do not
constitute a crime under these provisions.

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[ARGUMENTS ADVANCED | ISSUE 1]
ARGUMENTS ADVANCED
ISSUE I:
___________________________________________________________________________
1860
___________________________________________________________________________
1. Section 328 of the Trindian Penal Code, 1860 provides for the offence of causing hurt by
means or poison or otherwise with an intention to commit an offence.1 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. Further, there are three elements required to constitute, or rather, prove the commission
of 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.
3. It is the burden of the prosecution to prove that in the present case, the accused Mr.
Tridev Shukla, has indeed fulfilled, through the course of his acts, all the above elements
so as to be held liable under this Section, which must be done by furnishing substantial
evidence so as to adduce the guilt of the accused under this Section.2
4. The crux of the offence lies in the intention to administer the said poison or substance so
as to commit an offence.3 This is a clear indicator of the fact that in order to be liable to
commit an offence under this section, poison or such substance must be administered to
the alleged victim by the accused with an intent to commit or facilitate the commission
of an offence.4
1
The Trindian Penal Code, 1860, §.328
2
S.Arul Raja v. State of T.N., (2010) 8 S.C.C. 233; Mohan Singh v State of Bihar, (2011) 9 S.C.C. 272.
3
3, RATANLAL & DHIRAJLAL, RATANLAL & DHIRAJLAL’S LAW OF CRIMES 2326 (28th ed., Bharat Law House
2018)..
4
Ram Khelawan v. State of Madhya Pradesh, A.I.R. 1926 Bom 518.

1|Page
5. In Ram Khelawan v. State of Madhya Pradesh,5 the Gujarat High Court opined that the
basic ingredient of this section is the presence of intention or knowledge. Only if the
accused had intention to administer poison or the knowledge that he was doing so in
order to commit an offence could he be held liable; else he cannot be punished under this
section, that is, he would be exempted from liability.
6. Further, the offence referred to in this provision is the offence as defined under Section
40 of the Penal Code. Section 40 defines an offence as any act or thing punishable under
the Penal Code. It further goes on to state that, with special reference to Section 328, an
offence is a thing punishable either under the Code or under any other special law, which
is the Protection of Children from Sexual Offences Act, 2012.
7. The Penal Code of the nation has incorporated into the common law crime, the element
of mens rea needed for the particular time so that the guilty intention is generally
gathered not from common law but from the statute itself. 6
8. At this juncture, it is essential to note that in order to be held liable for an offence under
this Code, and specifically, this provision, there needs to be presence of both actus reus7
as well as mens rea,8 that is, in order for an accused to be liable for committing an
offence, the act as well as the mental element behind the Act must be prevalent.9
Absence of both these elements will result in the acquittal of the accused.
5
6
7
GLANVILLE WILLIAMS, TEXTBOOK OF CRIMINAL LAW, 378 (2nd ed., Sweet and Maxwell 2015).
8
State of Maharashtra v. Mayer Hans George A.I.R. 1965 S.C. 722.
9
Ram Khelawan v. State of Madhya Pradesh, 2014 (4) C.G.L.J. 73.

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ISSUE II:
___________________________________________________________________________
[2.]THE ACCUSED IS NOT GUILTY UNDER SECTION 363 OF THE TRINDIAN PENAL CODE,
1860
___________________________________________________________________________
9. 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.10 In this particular case, the accused is charged under this Section as he has
allegedly kidnapped the minor girl from her lawful guardianship, an offence that falls
under Section 361 of the Penal Code of 1860.
10. Section 361 deals specifically about kidnapping from lawful guardianship and lays down
the following ingredients11 that have to be proved by the order proved 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 keeping12 of the lawful
guardian of such minor person or person of unsound mind;
11. It is essential to note that the accused, in such cases will be entitled to be acquittal13 if it
can be reasonably proven that the alleged victim willingly went with the accused to a
particular place. Where the evidence showed that the prosecutrix willingly left the care
of her parents without any threat, inducement or fear, the Court was of the view that the
conviction of the accused under Section 363 of the Code would be improper.14
12. Further, wherein the evidence of the prosecutrix showed that not only did she willingly
go the house of the accused, leaving behind the care of her guardian, but also failed to
take the ample opportunities to run away from going to the place, the conviction of the
accused under Section 363 was set aside by the Court15 as there was clear consent on the
part of the alleged victim.16
10
The Trindian Penal Code, 1860, §.363.
11
PSA PILLAI, PSA PILLAI’S CRIMINAL LAW 792 (KI Vibhute, 12th ed.,LexisNexis 2016).
12
In Re: Neela Bose, (1868) 10 WR (Cr) 33.
13
State v. Suresh Kumar, A.I.R. 2009 S.C. 1109.
14
Lukesh Alias Lokesh, Son of Jethuram Marar v. State of Chhattisgarh, 2012 Cri L.J. 384 (Chh).
15
Badanbai Vidya Lahore & Ors v. State of Chhattisgarh, 2012 Cri L.J. 2350 (Chh).
16
The State v. Babulal, A.I.R. 1965 Raj 90.

3|Page
13. With reference to kidnapping from lawful guardianship, it is the burden of the
prosecution to clearly and definitely prove that the minor was taken or enticed away
from the care of the lawful guardian17, which in the present case are her parents.18 For
such offence to be proven there has to be clear evidence as to the fact that the minor girl
was in fact taken away from lawful care of her parents 19 and mere inferences from a
series of events is not satisfactory and does not cross the threshold for conviction under
this Section.20
14. Further, there must be proof of taking21 from the lawful care of the guardian of the minor
by taking some active step either through the commission of an act22 or through
persuasion which caused the minor to leave such care. Willingness on the part of the
prosecutrix is also a ground for the acquittal of the accused.23
15. A witness is normally to be considered independent and not interested unless he or she
springs from sources, which are likely to be corrupt, and that usually means unless the
witness has a cause or such enmity against the accused, to wish, to implicate him falsely,
and have a desire to get the accused punished. Any statement made by an interested
witness may not be true because of the corrupt intention that he/she carries or because of
any bias towards the complainant. Therefore, it is necessary to scrutinize each and every
statement made by the interested witnesses.
16. A court should examine the examine the evidence of related and interested witness
having an interest in seeing the accused punished and also have some enmity with the
accused with greater care and caution, than evidence of a third party disinterested and
unrelated witness.24 In the case of Bhaskarrao and Ors. vs. State of Maharashtra25, the
Hon’ble Supreme Court held that:
“There is no dispute about the fact that the interest of the witness must affect his
testimony is a universal truth. Moreover, under the influence of bias, a man may not be
in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may
not be in a position to provide evidence in an impartial manner, when it involves his
interest. Under such influences, man will, even though not consciously, suppress some
17
Moniram Hazarika v. State of Assam, (2004) 5 S.C.C. 120.
18
Case Brief, p. 5.
19
State of Uttar Pradesh v. Ram Veer Singh and Ors, 1981 Cri L.J. 47 (All).
20
Baldeo Raj v. State of Punjab, (1939) 42 P.L.R. 25.
21
Chathu v. Gundakutty P, A.I.R. 1958 Ker 121.
22
In Re: Abdul Sathar A.I.R. 1928 Mad 585.
23
Shyam & Anr v. State of Maharashtra, A.I.R. 1995 S.C. 2169.
24
Raju@Balachandran v. State of Tamil Naidu, A.I.R. 2013 S.C. 983.
25
Bhaskarrao and Ors. vs. State of Maharashtra, (2018) 6 S.C.C. 591.

4|Page
facts, soften or modify others, and provide favorable color. These are most controlling
considerations in respect to the credibility of human testimony, and should never to be
overlooked in applying the Rules of evidence and determining its weight in the scale of
truth under the facts and circumstances of each case.”
17. The court not only looks into the independence of the witnesses but also the
independence of the prosecutrix since a lot of false sexual harassment cases are being
filed. In the case of State of Maharashtra v. Chandraprakash Kewalchand Jain26, the
court observed as follows:
"If the totality of the circumstances appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely involve the person charged, the
court should ordinarily have no hesitation in accepting her evidence. We have,
therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does
not lack understanding must be accepted."
26
State of Maharashtra V. Chandraprakash Kewalchand Jain, (1990) 1 S.C.C. 550.

5|Page

ISSUE III:
___________________________________________________________________________
1860
___________________________________________________________________________
18. Section 506 of the Trindian Penal Code27 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.28
19. 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”.29 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.30
20. There are three postulates that the prosecution has the burden to prove in order to attract
the provisions of this Section;31
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;
27
28
Rasiklal M. Gangani v. Government of Goa and Ors., 2004 (106 (4)) Bom L.R. 626.
29
30
Romesh Chandra Arora v. The State, A.I.R. 1960 S.C. 154.
31
2018).

6|Page

iii. That he did so with the intent to cause alarm to that person32; or to cause that
person to do any act which he was not legally bound to do; or omit to do any act
which he was legally entitled to do as a means of avoiding the execution of such
threat.
21. An essential element is this section is the requirement that the threat alleged to have
levied at the accused must be done so with an intent to cause alarm to such alleged
victim of the offence. Only if the victim could be reasonably alarmed by the threat of
intimidation could the accused be held liable for criminal intimidation and undergo the
rigour of the punishment mentioned in this provision.33
22. Conviction under the provisions of this Section is not possible wherein the threat that
was alleged to have been directed towards the victim was wherein such allegation not
backed up by sufficient evidence to prove the same in a Court of Law, the accused was
entitled to be acquitted of the charge.34
32
State v. Prakash Mahadeo Mane, 1980 Cri L.R. 146 (Bom).
33
State v. Prakash Mahadeo Mane, 1980 Cri L.R. 146 (Bom).
34
Rameshwar Prasad Srivastava 1984 Cri L.J. 996 (All).

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ISSUE IV:
___________________________________________________________________________
[4.] THE ACCUSED IS NOT GUILTY UNDER SECTION 6 OF THE PROTECTION OF CHILDREN
FROM SEXUAL OFFENCES ACT, 2012 READ WITH SECTION 376 OF THE TRINDIAN PENAL
CODE, 1860
___________________________________________________________________________
23. 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.
24. Firstly, the presumption of guilt placed on the accused is not absolute, [4.1] and
secondly, a statement of the victim is not sufficient as a sole ground for imposing guilt.
[4.2]
[4.1] PRESUMPTION OF GUILT IS NOT ABSOLUTE
25. Section 28 of POCSO lays the presumption of guilt on the accused and places the burden
of proving his innocence on the accused. This statutory exception of reversal of onus is
under certain requisites being placed, which was out into place in order to protect the
fundamental right of a person to be presumed to be innocent until proven guilty.
[4.1.1] THE BURDEN OF PROVING INNOCENCE ONLY FALLS UPON THE ACCUSED AFTER
PROSECUTION HAVE ESTABLISHED FOUNDATIONAL FACTS.
26. In cases of reversal of burden of proof, the Apex court has recognized that the such
reversal is necessary with regard to the nature and gravity of the offence, however the
courts are to ensure that this does not lead injustice being caused due to mistaken
convictions. In the case of Babu v. State of Kerala35, the Apex court while dealing with a
reverse onus clause stated that “such a presumption can also be raised only when certain
foundational facts are established by the prosecution.” This is due to the difficulty of
proving a negative face, and also that the presumption must meet the tests of
reasonability and liberty enshrined in Articles 14 and 21 of the Constitution.
35
Babu v. State of Kerala, (2010) 9 S.C.C. 198.

8|Page
27. Further, in the case of Sahid Hossain Biswas v. State of West Bengal36 while dealing
with the presumption under Section 29 of the POCSO, it held that “In order to prove a
contrary fact, the fact whose opposite is sought to be established must be proposed first.
It is, therefore, an essential prerequisite that the foundational facts of the prosecution
case must be established by leading evidence before the aforesaid statutory presumption
is triggered in to shift the onus on the accused to prove the contrary.”
28. In the case of Sadhu v. State of Maharashtra,37 the appellant was convicted under
Sections 5 and 6 of POCSO Act, 2012, where there existed no physical evidence, no eye
witnesses, no medical indications of such an act being committed and the victim’s
statements did not inspire confidence. The Court held that the reverse onus clause does
not get triggered because of the “foundational facts”.
[4.1.2] BURDEN OF PROOF LAID ON THE ACCUSED IS “BEYOND PREPONDERANCE OF PROBABILITY”
AND NOT “BEYOND REASONABLE DOUBT”
29. In the case of Noor Aga v. State of Punjab38 while discussing the evidentiary burden on
the accused placed by Sections 35 and 54 of the Narcotic Drugs and Psychotropic
Substances act, 1985 held that, “An initial burden exists upon the prosecution and only
when it stands satisfied, the legal burden would shift. Even then, the standard of proof
required for the accused to prove his innocence is not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of accused on the prosecution
is "beyond all reasonable doubt" but it is `preponderance of probability' on the accused.”
30. In the present case, the Prosecution has not produced any conclusive evidence as to the
commission of Aggravated Penetrative Sexual Assault on the victim. The MLC report
failed to show a ruptured hymen39 and no incriminating evidence was collected from the
place of offence. Further, there is evidence to prove that the accused could not have been
at the scene of the alleged crime at the time of the offence.
[4.2] STATEMENT OF THE ACCUSED IS NOT SUFFICIENT TO MAINTAIN PROSECUTION
31. It has been held that the sole testimony of a victim minor girl can be the sole ground for
conviction of an accused under POSCO, however this is subject to the testimony being
inspiring and trustworthy. The standard of proving evidentiary value is much higher in
such cases. In the case of Padam Singh v. State of Himachal Pradesh,40 The High Court
36
Sahid Hossain Biswas v. State of West Bengal, 2017 CAL L.T. 243 (HC).
37
Sadhu v. State of Maharashtra, 2019 ALL M.R. (Cri) 342.
38
Noor Aga v. State of Punjab, (2008) 56 S.C.C. 417.
39
Case Study, p, 11.
40
Padam Singh v. State of Himachal Pradesh, 2016 (2) Crimes 401 (HP).

9|Page
allowed for conviction only after weighing the credibility of the victim through
consistency of her statements established through credible evidence and cross
examination.
32. Holding the same standard of credibility to evidence of a prosecutrix when such a story
is “improbable or bellies logic” would be doing violence to the principles governing the
appreciation of evidence.41 If the court finds it difficult to accept the version of the
prosecutrix, the court may search for evidence which may lend veracity to the
testimony.42 The sole testament of the prosecutrix will be sufficient for a conviction
except in cases of high improbability.43 In the case of Tuna44 the fact that the accused did
not have any injuries on her back even though she alleged that she was raped on a rough
surface was sufficient to hold that the conviction of the accused on the testimony as not
proper.
33. In the instant case, the accused could not have been at the alleged place of commission
of offence at the time it has been alleged to have been committed45 and a valid alibi has
been established for the same. Additionally, the testimony of the accused also is plagued
with major inconsistencies which is clearly evident from the case brief regarding the
matter at hand.
34. Further, in the testimony given by the victim, there is no evidence to point to the actual
commission of the act of Aggravated Penetrative Sexual Assault and it only states that
the accused told her that the act took place. In the case of Narayan v. State of Madhya
Pradesh,46 the testimony of a prosecutrix was not sufficient to convict the accused as her
testament failed to prove the actual act occurring. In such a case the court cannot
presume that such an act to have occurred.
[4.3] CONFESSION MADE BY ACCUSED INVALID

35. In Saw Min47, the court held that:
i. a confession made by an accused person to a policer-officer is inadmissible in
evidence.
41
2018).
42
State v. N K, A.I.R. 2000 S.C .1812.
43
Rajinderv v. State of HP, 2009 Cri L.J. 4133 (SC).
44
Tuna v. State of West Bengal, 2009 Cri L.J. 1996 (Cal).
45
Case Study, p.16.
46
Narayan v. State of Madhya Pradesh, 2003 Cri L.J. 268.
47
In Re: Saw Min, (1939) Ran 97.

10|Page
ii. if person in the custody of the police desires to make a confession, he must do it
in the presence of the magistrate.
36. The confession becomes admissible in evidence only when the accused voluntarily
confesses to the magistrate and the magistrate records the confession in accordance with
the procedure laid down in section 281 of the Cr.PC. In Ashim Das v. State of Assam48
also, the court held that the statements can only be recorded by a Judicial magistrate.
37. In CCE v. Duncan Agro Industries49, the again held that the judicial magistrate is the
only authority which enjoys the power of recording statements and confessions under the
Code of Criminal Procedure. A police officer cannot exercise this power even if the
authority to do so has been conferred upon him outside the code.
48
Ashim Das v. State of Assam, 1987 Cri L.J. 1533 (Gau).
49
CCE v. Duncan Agro Industries, A.I.R. 2000 S.C. 2901.

11|Page
[PRAYER]
PRAYER
Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed by the Defence before the Hon’ble Special Sessions Court to:
1. Acquit Mr. Tridev Shukla (‘Accused’) under Section 328 of the Trindian Penal Code,
1860.
1860.
1860.
4. Acquit 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 Defence.

12|Page

TC - 511 Defence

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TC_511

5TH KIIT NATIONAL MOCK TRIAL COMPETITION

THE HON’BLE SPECIAL COURT OF SESSION

STARWALKER’S CITY, TRINDIA

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

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

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

[4.2] STATEMENT OF THE ACCUSED IS NOT SUFFICIENT TO MAINTAIN PROSECUTION ........... 9

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

State v. N K, A.I.R. 2000 S.C .1812. ....................................................................................... 10

The Trindian Penal Code, 1860, §.328 ................................................................................ 1,3,6

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

IV. THE ACCUSED IS NOT GUILTY UNDER SECTION 6 OF THE PROTECTION OF

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

[ARGUMENTS ADVANCED | ISSUE 3]

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

[ARGUMENTS ADVANCED | ISSUE 3]

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

[4.3] CONFESSION MADE BY ACCUSED INVALID

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

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

All of which is most humbly and respectfully submitted

WRITTEN SUBMISSION ON BEHALF OF DEFENCE

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