SM0115008

BEFORE THE HON’BLE COURT OF CHIEF JUDICIAL MAGISTRATE, GUWAHATI

CRIMINAL CASE NO. _____

IN THE MATTER OF

STATE … PROSECUTION

vs.

F & Another … DEFENDANT

MEMORIAL ON BEHALF OF PROSECUTION

 TABLE OF CONTENTS

TABLE OF ABBREVIATIONS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

SUMMARY OF ARGUMENTS

BODY OF ARGUMENTS

1. WHETHER THE ACCUSED PERSONS, F AND C, ARE LIABLE TO BE

PUNISHED UNDER THE PROVISIONS OF THE INDIAN PENAL CODE, 1860?

1.1 Ingredients of Criminal Conspiracy are fulfilled

1.2 Sexual Offences were committed against A

2 WHETHER THE ACCUSED ARE LIABLE TO BE CONVICTED UNDER

SECTION 67B OF INFORMATION TECHNOLOGY ACT?

2.1 That the section 67B of IT Act is attracted in the instant matter

2.1.1 The material must contain children in sexually explicit act

2.1.2 The material must be published in electronic form

2.2 That the material on record establishes the guilt of the accused persons

3 WHETHERF AND C ARE LIABLE TO BE CONVICTED FOR THE OFFENCE

OF KIDNAPPING UNDER IPC?

PRAYER

TABLE OF ABBREVIATIONS

MEMORIAL ON BEHALF OF PROSECUTION

 & And
¶ Paragraph
A.P. Andhra Pradesh
AIR All India Reporter
Anr. Another
Art. Article
Cl. Clause
Cr LJ Criminal Law Journal
Ed. Edition
Govt. Government
Hon’ble Honorable
i.e. id est (that is)
id ibidem
M.P. Madhya Pradesh
Ors. Others
p. Page
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
UP Uttar Pradesh
vs. Versus
WB West Bengal

INDEX OF AUTHORITIES

List of Statutes:

 Indian Penal Code, 1860.

 Information Technology Act, 2000.

Table of Cases:

John Pandian v. State, JT 2010 (13) SC 284: 2010 (8) Supreme 389.
Pratapbhai Hamirbhai Solanke v. State of Gujarat, 2012 (10) JT 286: 2012 (8) SLT 392.

MEMORIAL ON BEHALF OF PROSECUTION

Ramakant Rai vs Madan Rai, (2003) 12 SCC 395.
Smt. Veena Verma vs State of U.P., 2017 SCC Online Del 6952.
Sushil Suri v. Central Bureau of Investigation, AIR 2011 SC 1713: (2011) 5 SCC 708.
Thakorlal D. Vedgama vs. State of Gujrat, AIR 1973 SC 2313.
Vanita Vasant Patil vs The State of Maharashtra, CRIMINAL APPEAL NO.935 OF 2014,

Bombay High Court.

Vijayan v. State of Kerala, 1999 (2) SCC 54: AIR 1999 SC 1086.
Vikas vs State of Maharashtra, (2008) 2 SCC 516.

Books Referred:

 AmitaVerma, Cyber Crimes and Law, Central Law Agency, (Allahabad, 2014).

 Apar Gupta, Commentary on Information Technology Act: With Rules,

Regulations,Orders, Guidelines, and Reports, Lexis Nexis Butterworths Wadhwa Nagpur,

(2011).

 K.D. Gaur, Commentary on the Indian Penal Code, (2nd Edition, Universal Law

Publications co. ltd., 2013).

 K.D. Gaur, Textbook on Indian Penal Code, (15th Edition, Universal Law Publications co.

ltd., 2014).

 R.K. Chaubey, An introduction to cybercrime and cyber law, 2nd Edition; (2014).

 Ratan Lal & Dhiraj Lal, The Indian Penal Code, (32 nd Edition, Lexis Nexis Publications,

2013).

MEMORIAL ON BEHALF OF PROSECUTION

 Vakul Sharma, Information technology law and practice, Universal Law Publishing,

(2011).

MEMORIAL ON BEHALF OF PROSECUTION

 STATEMET OF JURISDICTION

The prosecution has approached the Hon’ble court under the Section 29 (1) of the Code of

Criminal Procedure.

Section 29- Sentences which Magistrates may pass:

(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except
a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven
years.

MEMORIAL ON BEHALF OF PROSECUTION

 STATEMENT OF FACTS

 Asti a 15-year-old girl joined Fakedook on 15th July, 2019. On 1st August, 2019 she
received a friend request of Mr. kama and accepted it as he looked decent. Initially
they chatted and eventually exchanged numbers.
 On 18th August Mr. K asked A for a date initially she refused but Mr. K was very
persuasive so she finally agreed. On 20 th August, 2019 they met at Guwahati Mall but
when they met A saw that K looks much older than his Fakedook Profile picture, but
as he was chivalrous, she spent time with him.
 He bought her gifts and told her that he had made arrangements for lunch at his
friend’s house in Ulubari. They reached at K’s friend’s house and at 2:00 p.m. had
lunch after which she passed out.
 A woke up at 5:30 p.m. she was barely clothed, felt dizzy and it was paining around
her abdomen. After she reached her house, she received a threat SMS from K that she
should not tell about their meeting to anyone or else she has to face dire
consequences. But she informed her mother and lodged a complaint at Panjabari
police station.
 As per report police raided F’s room and on interrogation found that F knew K
through another friend C.
 Police raided C’s house and confiscated laptop, CDs and other electronic goods on
suspicion of storing sexually explicit images and videos. On interrogation C told that
K was a foreigner and resident of country B and a FD friend of C. K was on a
business trip in Guwahati.
 On 22nd August, 2019 A received a link which was of a porn site in which her nude
video was uploaded. She informed police and immediately requisite charges were
slapped on both F and C.

MEMORIAL ON BEHALF OF PROSECUTION

 SUMMARY OF ARGUMENTS

ISSUE I-
The accused persons are liable to be convicted under section 67B of Information Technology
Act 2000. The Act prohibits the publishing or transmitting of material depicting children in
sexually explicit act, in electronic form. It is evident from the facts that Asti was a 15-year-
old girl whose nude video has been uploaded on a porn site. The material on record is
sufficient to proof the charge of commission of offence punishable under section 67B of
Information Technology Act upon both the accused persons.
 
ISSUE II-
The accused persons can be held liable and punished for the violation of Secs. 34, 120B, 354,
354B and 354C of the Indian Penal Code, 1860. There is common intention and clear
meeting of minds between the three persons, K, F and C which led to the hatching of the
conspiracy against the victim A. the accused persons F and C must be held liable and
punished under Sec. 120B read with Sec. 34 of the Indian Penal Code, 1860.  While A was
drugged, made unconscious, disrobed and her modesty was outraged by the accused persons
collectively as they had common intention and a criminal conspiracy was hatched by them,
hence the provision of Sec. 354C is also attracted.

ISSUE III-

The accused persons can be held liable and punished for kidnapping under Section 361 and
363 of the Indian Penal Code, 1860. As there are two main ingredients given under Sec. 361
for kidnapping which has been clearly fulfilled by K, F and C, and hence they will be
punished under Sec. 363 for a term which may extend to seven years and shall also be liable
to fine. They will also be charged under Sec. 367 as they have kidnapped a minor to put her
in the danger of unnatural lust of a person. Hence the accused persons are liable under
Sections 361, 363, and 367 of the Indian Penal Code, 1860.

MEMORIAL ON BEHALF OF PROSECUTION

 BODY OF ARGUMENTS

ISSUE I: WHETHER THE ACCUSED PERSONS, F AND C, ARE LIABLE TO BE

PUNISHED UNDER THE PROVISIONS OF THE INDIAN PENAL CODE, 1860?

It is humbly submitted before this hon’ble Court that the accused persons can be held liable
and punished for the violation of Secs. 34, 120B, 354, 354B and 354C of the Indian Penal
Code, 1860.

1.1. Ingredients of Criminal Conspiracy are fulfilled

The ingredients of criminal conspiracy are as follows:

1. Two or more persons enter an agreement
2. The agreement is to do an illegal act

The essential ingredient of the offence of criminal conspiracy is the agreement to commit an
offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy. 1 The
essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can
be proved either by direct evidence or by circumstantial evidence or by both. Direct evidence
to prove conspiracy is rarely available and therefore, the circumstances proved before, during
and after the occurrence have to be considered to decide about the complicity of the accused. 2
It is well established that it is difficult to establish conspiracy by direct evidence 3, therefore
the circumstances in a case when taken together on their face value, should indicate meeting
of minds between the conspirators for the intended object of committing an illegal act.
Circumstances relied for the purposes of drawing an inference should be prior in point of
time than the actual commission of the offence in furtherance of the alleged conspiracy.4

When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.5

In the present case, the accused persons, F and C, were aware and involved in the furtherance
of the illegal acts done by K. A was sexually assaulted on 20 th August 2019 by K at F’s

1
Sushil Suri v. Central Bureau of Investigation, AIR 2011 SC 1713 : (2011) 5 SCC 708.
2
Pratapbhai Hamirbhai Solanke v. State of Gujarat, 2012 (10) JT 286 : 2012 (8) SLT 392.
3
Vijayan v. State of Kerala, 1999 (2) SCC 54 : AIR 1999 SC 1086.
4
John Pandian v. State, JT 2010 (13) SC 284 : 2010 (8) Supreme 389.
5
Section 34, Indian Penal Code, Act 45 of 1860.

MEMORIAL ON BEHALF OF PROSECUTION

residence after she passed out from having lunch. 6 This clearly shows that the food that she
was given was laced with drugs that knocked A unconscious. It is established, from C’s
admittance, that K is a foreigner from country B who was on a business trip in Guwahati
from August 18 – 20, 20197, which means that K could not have procured the drugs himself.
His friends F and C helped him procure the drugs and provided the place where the illegal act
was carried out.

Hence, there is common intention and clear meeting of minds between the three persons, K, F
and C which led to the hatching of the conspiracy against the victim A. Therefore, the
accused persons F and C must be held liable and punished under Sec. 120B read with Sec. 34
of the Indian Penal Code, 1860.

1.2. Sexual Offences were committed against A

The ingredients to outrage the modesty of a woman are specified under Sec. 354 of the IPC.
Sec. 354 has been reiterated as follows:

354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever
assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely
that he will thereby outrage her modesty, shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to five
years, and shall also be liable to fine.

The two necessary ingredients of Section 354 IPC are 'assault' or 'use of criminal force' to any
woman and with the intention to outrage or knowing it to be likely that he will thereby
outrage her modesty. Sections 350 and 351 IPC define 'criminal force' and 'assault' as under:

350. Criminal force.--Whoever intentionally uses force to any person, without that person's
consent, in order to the committing of any offence, or intending by the use of such force to
cause, or knowing it to be likely that by the use of such force he will cause injury, fear or
annoyance to the person to whom the force is used, is said to use criminal force to that other.

351.Assault. -Whoever makes any gesture, or any preparation intending or knowing it to be

likely that such gesture or preparation will cause any person present to apprehend that he

6
¶ 2, Moot proposition.
7
¶ 4, Moot proposition.

MEMORIAL ON BEHALF OF PROSECUTION

who makes that gesture or preparation is about to use criminal force to that person, is said to
commit an assault.
Thus, when the modesty of a woman is outraged or it is likely to be outraged coupled with an
assault or criminal force, Sec. 354 of the Indian Penal Code would be attracted. Ingredients of
Sec. 354 IPC would show that the same mandate an actus reus of assault or criminal force
with an intention to outrage or likely to outrage the modesty of a woman.

354B. Assault or criminal force to woman with intent to disrobe.—Any man who assaults or
uses criminal force to any woman or abets such act with the intention of disrobing or
compelling her to be naked, shall be punished with imprisonment of either description for a
term which shall not be less than three years but which may extend to seven years, and shall
also be liable to fine.

In the present case, the victim, A was drugged8, made unconscious9, disrobed10 and her
modesty was outraged by the accused persons collectively as they had common intention and
a criminal conspiracy was hatched by them.

Also, since the act was video recorded which is proved by the presence of the nude video of
the victim in a pornographic site11, hence the provision of Sec. 354C is also attracted. Sec.
354C has been reiterated as under:

354C. Voyeurism.– Any man who watches, or captures the image of a woman engaging in a
private act in circumstances where she would usually have the expectation of not being
observed either by the perpetrator or by any other person at the behest of the perpetrator or
disseminates such image shall be punished on first conviction with imprisonment of either
description for a term which shall not be less than one year, but which may extend to three
years, and shall also be liable to fine, and be punished on a second or subsequent conviction,
with imprisonment of either description for a term which shall not be less than three years,
but which may extend to seven years, and shall also be liable to fine.

Explanation 1. – For the purpose of this section, “private act” includes an act of watching
carried out in a place which, in the circumstances, would reasonably be expected to provide
privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in

8
¶ 2, Moot proposition.
9
Ibid.
10
¶ 3, Moot proposition.
11
¶ 5, Moot proposition.

MEMORIAL ON BEHALF OF PROSECUTION

underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of
a kind ordinarily done in public.

Explanation 2. – Where the victim consents to the capture of the images or any act, but not
to their dissemination to third persons and where such image or act is disseminated, such
dissemination shall be considered an offence under this section.

Hence, F and C are also liable to be punished under Sec. 354, Sec. 354B and Sec. 354C read
with Sec. 34 of the Indian Penal Code, 1860.

MEMORIAL ON BEHALF OF PROSECUTION

ISSUE II: WHETHER THE ACCUSED ARE LIABLE TO BE CONVICTED UNDER
SECTION 67B OF INFORMATION TECHNOLOGY ACT?

It is submitted before this Hon’ble Court that section 67B of Information technology Act,
2000 prohibits publishing or transmitting of material depicting children in sexually explicit
act, in electronic form. Depicting children engaged in sexually explicit act, creating text or
digital images or advertising or promoting such material depicting children in obscene or
indecent manner etc. or facilitating abusing children online or inducing children to online
relationship with one or more children etc. come under this Section. It is submitted-

2.1. That the section 67B of IT Act is attracted in the instant matter

Section 67B of the Act provides punishment for publishing or transmitting of material
depicting children in sexually explicit act, etc. in electronic. In order to establish an
offence under section 67B two conditions has to be established- Firstly the material must
contain children in sexually explicit act, and secondly the material must be published in
electronic form.12

2.1.1. The material must contain children in sexually explicit act

It is submitted before this Hon’ble Court that for the purposes of this section, children mean a
person who has not completed the age of 18 years.13
In the instant matter Asti was a 15-year-old girl.14 On August 22, 2019 she received an
internet link from an anonymous number, when she logged in into the link, she found that it
was a porn site in which her nude video has been uploaded. It is submitted that the said video
was taken on august 20, 2019 at the residence of F, while Asti was passed out.15

2.1.2. The material must be published in electronic form16

It is submitted that the obscene/ lascivious material was published or transmitted in the
‘electronic form’. As per the definition of term "electronic form" given in Section 2 (r)
of Information Technology Act, the material placed on record by the prosecution i.e. an

12
Smt. Veena Verma vs State of U.P., 2017 SCC Online Del 6952.
13
Section 67B of Information Technology Act, 200- Punishment for publishing or transmitting of material
depicting children in sexually explicit act, etc., in electronic form.
Explanation–For the purposes of this section, ―children‖ means a person who has not completed the age of 18
years.
14
⁋ 1, Moot proposition.
15
⁋ 2, Moot proposition.
16
VanitaVasantPatilvs The State of Maharashtra, CRIMINAL APPEAL NO.935 OF 2014, Bombay High Court.

MEMORIAL ON BEHALF OF PROSECUTION

internet link of a porn site upon which her nude video was upload 17, is covered within the
definition of "electronic form" as defined U/S 2(r) of the Act. 18 Since the alleged material was
published or transmitted in the "electronic form", therefore, the provision
of Information Technology Act2000 shall be applicable

2.2. That the material on record establishes the guilt of the accused
persons
It is submitted before this Hon’ble Court that it is a principle of criminal jurisprudence that in
for convict of an offence the guilt of the accused must be proved beyond a reasonable doubt.
“Beyond a reasonable doubt” means that the evidence presented and arguments put forth by
the prosecutor in a criminal case establishes the defendant’s guilt to such an extent that a
reasonable person could have no reasonable doubt about the guilt of the accused.19
In the instant matter Kama is a citizen of Country B and he brought A on the residence of F.
After the incident on 20 august 2019 when A returned back to her home and she received an
SMS from K threatening of dire consequences if she discloses the incident to anyone.20
Although during the investigation F told that he knew K through a common friend C who
lives in Panjabari, Guwahati but there is no denying that F had direct nexus with the incident.
The nude video was created in the house of F and all the three accused persons (K, F and C)
are responsible for creating the digital image depicting the victim in an obscene or indecent
or sexually explicit manner.
It is submitted before this Hon’ble Court that when the police raided the house of C, there
they found laptop, CDs and other electronic goods. The Police confiscated all the materials
and also arrested C on the suspicion of storing indecent videos, sexually explicit images and
videos.21
The prosecution submits that the accused F and C has transmitted an obscene/ lascivious
material containing the nude video of Asti (prosecutrix) on a porn website. The material on
the record i.e. laptop and CDs recovered from the residence of F and confiscated it on the
suspicion of storing pornographic content by Police, makes it very evident that it was not

17
⁋ 5, Moot proposition.
18
“electronic form” with reference to information, means any information generated, sent, received or stored in
media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;
19
Ramakant Rai v Madan Rai, (2003) 12 SCC 395, Vikas v. State of Maharashtra, (2008) 2 SCC 516.
20
⁋ 3, Moot proposition.
21
⁋ 4, Moot proposition.

MEMORIAL ON BEHALF OF PROSECUTION

only K but F and C also who is responsible for the offence of creating a digital image
depicting victim in an obscene or indecent or sexually explicit manner.
Hence, it is submitted before this Hon’ble Court that there is sufficient material on record to
proof the charge of commission of offence punishable under section 67B of Information
Technology Act upon both the accused persons.

MEMORIAL ON BEHALF OF PROSECUTION

ISSUE III: WHETHERF AND C ARE LIABLE TO BE CONVICTED FOR THE
OFFENCE OF KIDNAPPING UNDER IPC?

F and C are liable to be convicted for the offence of Kidnapping under Section 361 of IPC. It
is most humbly submitted before this court that in the instant matter A was abducted by Mr.
K and under Section 34 of IPC F and C will be held liable for the same act as they had the
common intention for furtherance of this criminal act.

The main ingredients of Sec. 361 of IPC are:

1. Minor under the age of 16 if boy and 18 if girl.

2. He or she has been taken away without the consent of the Lawful Guardian.

Section 363 of IPC states that; 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.

In the case of Thakorlal D. Vedgama v. State of Gujarat 22 the Hon’ble Supreme court defined
the expression “whoever take or entices any minor”. The word ‘takes’ does not necessarily
connote taking by force and it is not confined only to use force, actual or constructive. This
word means, ‘to cause to go’, ‘to escort’ or ‘to get into possession’. No doubt it does means
physical taking, but not necessarily by use of force or fraud. The word ‘entice’ seems to
involve the idea of inducement or allurement by giving rise to hope or desire.

Section 361 read along with 367 of IPC states that:

‘Whoever kidnaps or abducts in order to put the person in danger of being subjected to
grievous hurt, or slavery, or to the unnatural lust of any person, that person shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.’

In the instant case both F and C can be charged under Section 363 and 367 as firstly they
have kidnapped A, a girl of fifteen years of age, from the custody of her lawful guardian. In
the instant case consent of A does not hold any importance as she is a minor. Secondly, they
kidnapped A with the intention of subjecting her to unnatural lust of Mr. K. Hence, from the
above sated facts it is made clear that she was kidnapped by F and C and hence they are liable
under Section 363 and 367 of the aforementioned Indian Penal Code, 1860 for the likening.

22
AIR 1973 SC 2313.

MEMORIAL ON BEHALF OF PROSECUTION

 PRAYER

Wherefore, in the light of the issues raised, facts presented, arguments advanced and

authorities cited, the prosecution humbly submits that the Hon’ble Court be pleased to:

 adjudge that F and C were part of a criminal conspiracy with K to kidnap, drug and

outrage the modesty of A.

 convict F and C under Secs. 120B, 354, 354B, 354C, 363 and 367 read with Sec. 34

of the Indian Penal Code, 1860.

 convict F and C under Sec. 67B of the Information Technology Act, 2000.

And/or

pass any other order, that this Hon’ble Court may deem fit and proper in the interest of

justice, equity and good conscience.

For this act of kindness, the prosecution, as in duty bound, shall forever pray.

Sd. /-

(Counsel for the Prosecution)

MEMORIAL ON BEHALF OF PROSECUTION