TEAM CODE-

TEAM CODE-TETTSKDAM L 045

1st MS RATHI MEMORIAL NATIONAL

VIRTUAL MOOT COURT
COMPETITION 2021

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

(UNDER ARTICLE 139A OF THE CONSTITUTION OF INDIA,

1950)

Alok @Abid .............................................................................PETITIONER

V.

The State Of Maharashtra........................................................RESPONDENT

Alok @Abid And Ayesha............................................................PETITIONER

V.

The State Of U.P........................................................................RESPONDENT

Ayesha............................................................................................APPELLANT
V.

Child Welfare Committee (CWC)...........................................RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

(Counsel for the Petitioner)
-Table of Contents- -Petitioner-

TABLE OF CONTENTS

TABLE OF CONTENTS_______________________________________________________I
INDEX OF ABBREVIATIONS________________________________________________II
INDEX OF AUTHORITIES___________________________________________________IV
STATEMENT OF JURISDICTION_____________________________________________X
STATEMENT OF FACTS____________________________________________________XI
SUMMARY OF ARGUMENTS______________________________________________XII.
ARGUMENTS ADVANCED__________________________________________________1
I. WHETHER THE TRANSFER OF PETITIONS UNDER ARTICLE 139(A)
MAINTAINABLE? _________________________________________________________
1. No Substantial And Same Question Of Law______________________________________2
1.2 Exhausts The Remedies Of The Petitioners______________________________________
1.3 High Court Has Wider Ambit Of Jurisdiction____________________________________
II. WHETHER THE PENAL ACTION AGAINST THE PETITIONERS VALID
AND JUSTIFIABLE?________________________________________________________
2.1 Section 376 IPC___________________________________________________________2
 Marriage of Alok @Abid and Ayesha is valid.________________________________
 Act of Alok@abid do not fall within meaning of section 375 IPC.________________
2.2 3 and 4 of POCSO__________________________________________________________
 the act was not in the nature of assault______________________________________
 the petitioners were in a consensual relationship______________________________
2.3 Section 363 IPC___________________________________________________________
 the ingredients of kidnapping under section 363 is not fulfilled.__________________
 There is no taking or enticing on part of Alok@abid.___________________________
 Ayesha herself leave the guardianship of her guardian._________________________
2.4 Section 366 IPC___________________________________________________________
 The ingredients under section 366 of IPC is not fulfilled._______________________
 no allurement by alok@abid______________________________________________
 Intelligent metro city girl_________________________________________________

-MEMORANDUM for THE PETITIONERS-

I
-Table of Contents- -Petitioner-

III. WHETHER THE PETITIONERS CAN BE PROSECUTED UNDER THE UP

PROHIBITION OF UNLAWFUL CONVERSION ORDINANCE, 2020 AND
SECTION 306 OF THE IPC?_________________________________________________
3.1 Cause of action does not arise in the state of UP_________________________________
3.2 Actions of the accused do not amount to abetment to suicide_______________________
3.3 Presence of mens rea_______________________________________________________
3.4 No continuous mental harassment_____________________________________________
3.5 Aditi was a hypersensitive person_____________________________________________
IV. WHETHER AYESHA'S PETITION IS MAINTAINABLE?
4.1 Does Ayesha have a constitutional right to beget a life .___________________________
 constitutional right of women to make reproductive choices_____________________
 no pregnancy shall be terminated except with the consent of the pregnant woman.___
4.2 Is Ayesha capable enough, to carry on her motherhood____________________________
 mentally capable enough to be considered as a major__________________________
 social maturity and age of the respondents are not related_______________________
 Are Adolescents Less Mature Than Adults?__________________________________
4.3 Should the custody of Ayesha be given to her husband or to her husband's family_______
 There is a threat to life and liberty of Ayesha_________________________________
 Ayesha can be said to have reached the age of discretion and thereby walk away from
the lawful guardianship of her parents.______________________________________
PRAYER__________________________________________________________________V

-MEMORANDUM for THE PETITIONERS-

II
-Index of Abbreviations-
-Respondent-

INDEX OF ABBREVIATIONS

T MEANING
1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. Ads ADVERTISEMENTS
5. AIR ALL INDIA REPORTER
6. Annex. ANNEXURE
7. Anr. ANOTHER
8. Art. ARTICLE
9. BPC BAMBIA PENAL CODE
10. Cl. CLAUSE
11. Cr. CRIMINAL
12. CrLJ CRIMINAL LAW JOURNAL
13. CrPC CODE OF CRIMINAL PROCEDURE, 1973
14. CS CHARGE-SHEET
15. SDF SOIL DEFENCE FORCE
16. DW DEFENCE WITNESS
17. FIR FIRST INFORMATION REPORT
18. Govt. GOVERNMENT
19. HC HIGH COURT
20. Hon'ble HONORABLE
21. i.e. THAT IS
22. IPC INDIAN PENAL CODE, 1860
23. MANU MANUPATRA
24. No. NUMBER
25. Ors. OTHERS
26. P. PAGE
27. PS POLICE STATION
28. PW PROSECUTION WITNESS
29. r/w READ WITH
30. SC SUPREME COURT
31. SCC SUPREME COURT CASES
32. SCR SUPREME COURT REPORTER
33. Supp. SUPPLEMENTARY
34. TADA TERRORIST & DISRUPTIVE ACTIVITIES (PREVENTION) ACT
35. UAPA UNLAWFUL ACTIVITIES PREVENTION ACT
36. POTA PREVENTION OF TERRORIST ACT
37. PMLA PREVENTION OF MONEY LAUNDERING ACT
38. Pat PATIALA
39. MLJ MAHARASTHTRA LAW JOURNAL
40. Bom BOMBAY

-MEMORANDUM for THE PETITIONERS-

III
-Index of Abbreviations-
-Respondent-

41. LR LAW REPORTER

42. Tra-Co TRAVANCORE
43. Eds. EDITION
44. QB QUEENS BENCH
45. ER ENGLAND REPORTER
46. @ ALIAS
47. ACR ASSAM CRIMINAL REPORTER
48. U/S UNDER SECTION
49. UOI UNION OF INDIA
50. V./Vs VERSUS
51. Viz. NAMELY
52. w.r.t WITH RESPECT TO

-MEMORANDUM for THE PETITIONERS-

IV
-Index of Authorities-
-Respondent-

INDEX OF AUTHORITIES

STATUTES

1. CODE OF CRIMINAL PROCEDURE, 1973

2. CONSTITUTION OF INDIA, 1950
3. INDIAN PENAL CODE, 1860
4. INDIAN EVIDENCE ACT, 1872
5. PREVENTION OF MONEY LAUNDERING ACT,2002
6. TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985
7. THE ARMS ACT,1959
8. UNLAWFUL ACTIVITIES PREVENTION ACT,1967

BOOKS

1. D.D.BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa,

Nagpur.
2. D.D.BASU, Criminal Procedure Code, 1973, Lexis Nexis Butterworths
Wadhwa, 4th Edn, 2010.
4th
3. GAUR K. D, The Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd., Ed.,
2013.
4. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary .
[Delhi. Universal Law Publishing Co. Ltd].
5. HALSBURY’S LAWS OF ENGLAND, (VOLUME 11, PP. 44 AND 58., 4TH
EDITION).
6. HARI SINGH GOUR, The Penal Law Of India, 4869, (11th Edition, Delhi Law
House, New Delhi, 2006).
7. J. W. CECIL TURNER KENNY’S, Outlines of Criminal Law, Cambridge
University Press, 1952.
8. KELKAR R. V., Criminal Procedure Code ,Pillai Eastern Book Company, 4th Ed.
2007 (Revised by Dr. K. N Chandrasekharan).

-MEMORANDUM for THE PETITIONERS-

V
-Index of Authorities-
-Respondent-

9. M P JAIN, Indian Constitutional Law, 1180, LexisNexis Butterworths Wadhwa,

Nagpur, 2010.
10. PETER MURPHY, Evidence, Oxford University Press, 11 th Edition.
11. RATANLAL & DHIRAJLAL,The Code of Criminal Procedure, Lexis Nexis
Butterworths,Wadhwa,Nagpur, 20th Ed. 2011(YChandrachud J. &VRManohar J.).
12. RATANLAL & DHIRAJLAL,The Indian Penal Code, Lexis Nexis Butterworths,
Wadhwa, Nagpur, 30th Ed. 2008(Y VChandrachud J. &V R Manohar J.).
13. RATANLAL & DHIRAJLAL,The Law of Evidence, Lexis Nexis Butterworths
Wadhwa & Company Nagpur, 24th Ed. 2012 (Y V Chandrachud J. & V R Manohar
J.).
14. SARKAR on The Code of Criminal Procedure , 10th Edn, 2012, Lexis
Nexis Butterworths, Wadhwa, Nagpur.
15. SIR JOHN WOODROFFE & SYED AMIR ALI, Law of Evidence, LexisNexis
Butterworth’s, 19th Ed. Vol. II.
16. SMITH AND HOGAN, Smith and Hogan's Criminal Law, Karl Laird & David
Ormerod eds., Oxford University Press, 2015.
17. VIBHUTE K. I ,P S A Pillai’s Criminal Law,.,LexisNexis Butterworth’s, 11th Ed.,
2012.
18. WILLIS, “Constitutional Law”, 579, (The Principia Press, United States, 1936).

ARTICLES

1. 305th Report of the Law Commission of United Kingdom, Assisting and Encouraging
Crime/ Participating in Crime, Para 2.49, 2007.
2. ANIL KALHAN, GERALD P. CONROY, MAMTA KAUSHAL, SAM SCOTT
MILLER, AND JED S. RAKOFF “Colonial Continuities: Human Rights, Terrorism,
And Security Laws In India” Colum. J. Asian L. 93 2006-2007.
3. RAMANAND GARGE,Combating Financing of Terror: An Indian Perspective ,
Vivekananda International Foundation.
4. FATF (2015), Emerging Terrorist Financing Risks, FATF, Paris www.fatf-
gafi.org/publications/methodsandtrends/documents/emerging-terrorist-financing-
risks.html.

-MEMORANDUM for THE PETITIONERS-

VI
-Index of Authorities-
-Respondent-

5. J. Venkatesan, “Binayak Sen gets bail in Supreme Court,” The Hindu, April 15, 2011,
http://www.thehindu.com/news/national/article1698939.ece?homepage=true.
6. MINORITIES IN INDIA, 11 Socio-Legal Rev. 103 2015.
7. ROBERT E RIGGS, “Substantive Due Process Of Law” , 1990 Wis. L . Rev. 941
8. ROLLIN M. PERKINS, PARTIES TO CRIME, 89 U. Pa. L. Rev. 581 1940-1941.
9. SANTOSH EJANTHKAR, The Growing Threat of Money Laundering, Capgemin
2011.
10. Sedition Laws & The Death Of Free Speech In India , Centre for the Study of Social
Exclusion and Inclusive Policy, National Law School of India University, Bangalore
& Alternative Law Forum, Bangalore, February, 2011.
11. SHYLASHRI SHANKAR, “Judicial Restraint In An Era Of Terrorism” 11 Socio-
Legal Rev. 103 2015.
12. SRIJONI SEN ET. AL, “Anti-Terrorism Law in India- A Study of Statutes and
Judgements, 2001-2014”, Vidhi – Centre for Legal Policy, June 2015.
13. VIVEK CHADDHA, “Life Blood of Terrorism”, Bloomsbury Publishing India Pvt.
Ltd., 2011.

DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.heinonline.org
4. www.westlawindia.com
5. www.lexisnexis.com
6. www.ebscohost.com

IMPORTANT DEFINITIONS

1. Appellant for the purpose of this memorandum shall stand for Raghav.
2. Respondent for the purpose of this memorandum shall stand for the State.

-MEMORANDUM for THE PETITIONERS-

VII
-Index of Authorities-
-Respondent-

CASES
1. A.K. Roy v. Union of India(1982) 1 SCC 271_______________________________17
2. Abdul Kader v. State AIR 1964 Bom. 133__________________________________5
3. Adnan Bilal Mulla v. State of Bombay, 2006 CriLJ NOC 406Bom________________9
4. Ajay Aggarwal v. Union of India, AIR 1993 SC 1637__________________________5
5. Akanda v. Emperor, AIR 1944 Cal 339_____________________________________3
6. Alive Hospitality and Food Private Limited v. Union of India, 2013 SCC OnLine Guj
3909________________________________________________________________15
7. Aravindan v. State of Kerala, 1983 Cr.L.J 1259_______________________________7
8. Aung Hla v. Emperor, AIR 1931 Rang. 235 at ¶236.___________________________6
9. Barinder Kumar Ghose v. Emperor, AIR 1925 PC 1___________________________1
10. Basdev v. State of Pepsu, AIR 1956 SC 488_________________________________2
11. Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682._______4
12. Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469_______________________4
13. Central Bureau Of Investigation v. Nalini & Ors., (1999) 5 SCC 253._____________4
14. Chiranjit Lal Chowdhury v. Union of India1950 SCR 869_____________________18
15. Damodar v. State of Rajasthan, AIR 2003 SC 4414____________________________5
16. Darshan Singh v. State of Punjab, 1983 S.C.C (Cr.) 523________________________5
17. E.G. Barsay v. State of Bombay AIR 1961 SC 1762___________________________2
18. E.K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066______________________4
19. Emperor v. Maganlal (1946) Nag 126.______________________________________9
20. Emperor v. Subramaniyya Ayyer I.L.R 25Mad. 61 (P.C);_______________________9
21. Firozuddin Basheeruddin & Ors. v. State of Kerala, (2001) 7 SCC 596.____________4
22. Harbans Kaur v. State of Haryana, AIR 2005 SC 2969_________________________3
23. Hitendra Vishnu Thakur and Ors. v. State of Maharashtra, 1995 Cri LJ 517________12
24. Idris Bhai Daud Bhai v. State of Gujarat, 2003 SCC 277._______________________3
25. Izhar Ahmad v. Union of India AIR 1962 SC 1052___________________________15
26. K.Hashim v. State of Tamil Nadu, (2005) 1 SCC 237__________________________5
27. K.R Purushothaman v. State of Kerala, AIR 2006 SC 35._______________________5
28. Kartar Singh v. State of Punjab, (1994) 3 SCC 569___________________________17
29. Kartar Singh, (1994) 3 SCC 569___________________________________________9
30. Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435_____________________17

-MEMORANDUM for THE PETITIONERS-

VIII
-Index of Authorities-
-Respondent-

31. Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404_______________________17

32. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955________________________19
33. Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609________________________2
34. M. Narsinga Rao v. State of A.P 2001 Cri LJ SC 515_________________________15
35. Mir Hasan Khan v. Emperor, AIR 1951 Pat. 60.______________________________7
36. Mohammad Usman Mohammad Hussain Maniyar and others v. State of Maharashtra,
1981 (2) SCC 443.______________________________________________________2
37. Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, AIR 2012 SC
3565.________________________________________________________________7
38. Mohd Hussain Umar Kochra v. KS Dalip Singhji, AIR 1970 SC 45_______________5
39. Mohd Khalid v. State of W.B., (2002) 7 SCC 334____________________________5
40. Mohd. Jamiludin Nasir v. State of W.B., (2014) 7 SCC 443._____________________9
41. N.B. Khare (Dr) v. State of Delhi, 1950 SCR 519____________________________17
42. Neki Ram v. State of Haryana, (1974) 76 Punj. L.R 780________________________5
43. Pandurang Tukia and Bhillia v. State of Hyderabad, AIR 1955 SC 331.___________3
44. Pannalal Binjraj v. Union of India 1957 SCR 233____________________________17
45. R v. Hardie, (1820) 1 St. Tr. (N.S.) 765._____________________________________6
46. R v. Jones, (1832) 4 B & Ad 345__________________________________________2
47. R. v. Frost, (1839) 4.ST Tr. (N.S) 85:9 C &P. 129.____________________________6
48. R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821.______________________4
49. Rash Behari shaw v. Emperor, 38 Cr. L.J 545________________________________1
50. Redaul Hussain Khan v. National Investigation Agency, (2010) 1 SCC (Cri) 822___11
51. Saju v. State of Kerala ,(2001) 1 SCC 378___________________________________3
52. Sardar Sardul Singh Caveeshar v. State of Maharashtra, (1964) 2 SCR 378._______5
53. Sharad Yadav And Ors. v. Union Of India, 82 (1999) DLT 13.___________________4
54. Shivanarayan Laxminarayan Joshi & ors v. State of Maharashtra, (1980) 2 SCC 465_5
55. State (Delhi administration) v. Dilbag Rai, 1984(2) Crimes 971 (Delhi).___________5
56. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820_________5
57. State of Bihar v. Paramhans Yadav, (1986) Pat LJR 688 (HC).___________________3
58. State of Bombay v. F.N. Balsara1950 SCR 62_______________________________18
59. State of Bombay v. R.M.D. Chamarbaugwala, 1957 SCR 874__________________17
60. State of M.P v. Desh Raj, 2004 Cri LJ 1415._________________________________3

-MEMORANDUM for THE PETITIONERS-

IX
-Index of Authorities-
-Respondent-

61. State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659__________________3, 9

62. State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75____________________18
63. State through Superintendent of Police, CBI/SIT v. Nalini and Ors, AIR 1999 SC
2640._______________________________________________________________12
64. State v. Jaigovind, 52 Cr. L.J 646__________________________________________1
65. Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420.____________________4
66. Talib Haji Hussain v. Madhukar P. Mondkar1958 SCR 1226___________________17
67. Union of India v. Tulsiram Patel 1985 SCC (L&S) 672________________________11
68. V. B. Raju v. Union Of India & Others, 1980 AIR 1671._______________________16
69. V.C Shukla v. State (Delhi Admn), AIR 1980 SC 1382_________________________1
70. Whitney v. Inland Revenue Commissioner 1926 AC 37_______________________14
71. Yakub Abdul Razak Memon v. State of Maharashtra2013 SCC OnLine SC 257____14
72. Yash Pal Mittal v. State of Punjab 1978 Cr LJ 189____________________________5

-MEMORANDUM for THE PETITIONERS-

X
-Statement of Jurisdiction- -Respondent-

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the inherent jurisdiction to try, entertain and dispose
of the present case by virtue of Article 136 of The Constitution of India.

“Article 136. Special Leave to Appeal by the Supreme Court

(1)  Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2)  Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces”

-MEMORANDUM for THE PETITIONERS-

XI
-Statement of Facts- -Respondent-

STATEMENT OF FACTS

I
Sarita Devi PW1, the mother of the victim X (PW2) on 28th August, 2019 lodged a FIR stating
on 14th August, 2019 someone forcibly caught hold of and committed rape on X when she had
gone to the field to ease herself. The prosecutrix couldn't recognise the perpetrator as it was dark
(about 8 PM) and raised the suspicion that he was Raghav (hereinafter the appellant), who was a
distant relative involved in a property dispute with the victim's family and had been accustomed
to teasing X.
II
14 August 2019- The prosecutrix had gone to the field to answer nature's call when she was
caught hold of, dragged to the sarpat, and raped. When the victim attempted to raise the
alarm, the perpetrator threatened her with serious consequences. During the act, the victim
began to cry when the person became scared and fled, leaving behind his pants and towel.
Jung Bahadur (PW4) witnessed Raghav running towards his house in his underwear in the
light of a torch.

After 10 days (24 August 2019) – The victim disclosed the incident to her mother (PW1),
explaining that she couldn't muster the courage to tell her mother about it earlier because she
was threatened with dire consequences.
III
28 August 2019- Sarita Devi (PW1) lodged a FIR, and Raghav was named as a suspect
stating he had been teasing the victim on numerous occasions and had done so to pressure her
(PW1) to drop the ongoing civil suit. On the same day, the victim underwent a medical
examination, and no injuries to the body or private parts were discovered. There was no
bleeding, redness, tenderness, or discharge. The hymen was old torn, and the vagina easily
admitted two fingers. Her radiological age was estimated to be around 18 years after the X-
ray.

The I.O (PW5) recovered the pants and towel on the pointing out of Raghav and send them to
the Forensic lab for examination the next day. As per the report by the forensic lab no
spermatozoa was reported on the pants and towel.

-MEMORANDUM for THE PETITIONERS-

XII
-Statement of Facts- -Respondent-

Statement of Parties U/s 161 CrPC-

IV
Prosecutrix: “Raghav used to follow me from way back to home from my school. At many
occasions he had tried to forcibly hold my hands. On 08.08.2018, He said that he loved me
and wanted to marry me. I disclosed this incident to my mother who ridiculed Raghav in
return.

In May 2019 , Raghav came to my school and asked me to runaway with him and said that if
I did not follow his request, I would have to bear the consequences. However I did not report
this incident to my mother. On 14.08.2019, I left home at 8 Pm and headed towards the fields
adjacent to bank of river Gomti to attend nature’s call.

As soon as I reached the fields someone held me from back and shut my mouth and dragged
me to Sarpat where he tore my cloths and committed rape on me. When I tried to shout, he
threatened that he would kill me. Also he shut my mouth with his hands so I couldn’t raise an
alarm. But during course of act, I started weeping, it was then when he got scared and ran
away leaving his pants and towel. As it was very dark, so I could not see who that person
was. But I suspect that he was Raghav. "

She further stated – “I was raped by Raghav 3 months back also. I was very scared thus I
couldn’t tell anyone then. But how could I keep silence when the act was repeated. ”
V
Sarita Devi (PW 1)- “ Behaviour of my daughter had changed from past few days. I kept
asking her about the reason but she never told me. On 24.08.2019 when I strictly asked her
about her changed behavior. It was then only when she told me that she was raped by
someone whom she believes to be Raghav.

She also told me that the person threatened her that if she will disclose this incident with
anyone, she would be killed.” She further stated – “Raghav used to keep an evil eye on my
daughter. I had warned him on many occasions. Also Raghav and his father were pressurizing
me to withdraw the civil suit. In order to compel me to withdraw the suit, Raghav had raped
my daughter.”

-MEMORANDUM for THE PETITIONERS-

XIII
-Statement of Facts- -Respondent-

VI
Jung Bahadur (PW5)- Mr. Jung Bahadur, who was easing himself in nearby field stated -
“When I was in my field at around 8:20 Pm. I saw in the light of torch that Raghav was
running towards his home in a naked condition with only his Underwear on. ”

Gauri (PW6)- Gauri , Classmate of victim said in her statement that – “ Someday in month
of May this year, Raghav came to school during our lunch time. He seemed to be very angry.
He threatened the Victim that she did not marry him, she would have to face the
consequences and left. ”
VII
Raghav (Appellant)- Raghav denied the allegations of Rape. He said - “ I loved X and I
wanted to marry her. I knew that she also secretly loved me but due to existing family
dispute, she was reluctant to confess it to me. I did nothing wrong on 14.08.2019. Whatever
happened , happened with her consent. On the evening of 13.08.2019, she asked me to meet
her in the cattle grazing field near the river the next day at 8 pm. When I met her, she
voluntarily went with me inside the Sarpat , but as soon as I took off my clothes, she started
shouting and crying for help. Startled and shocked with her sudden behavior, I ran away
leaving my clothes . I have not committed rape on her. I have been falsely implicated due to
the property dispute. ”

VIII
Statement of victim u/s 164 Cr.P.C.- Recorded on 05.09.2019, she repeated the whole
incident. However, she didn’t say anything about her allegation that Raghav had raped her at
one more instance. When magistrate pointed this out, she said that she had given statement of
rape on earlier occasion by mistake and Raghav had not raped her 3 months back but only
teased her.
IX
After completing the investigation, charge-sheet was filed on 30.09.2019 u/s 376 and sec. 506
IPC. 18. On 1.10.2019, Raghav filed an application for Bail u/s 439 which was rejected by
the Sessions Court. 19. Charges were framed u/s 376 , 506 IPC . Raghav denied all the
charges and claimed to be tried. 20. On 28.10.2019 Raghav approached Allahabad High
Court u/s 482 Cr.P.C. for quashing of charge- sheet .

-MEMORANDUM for THE PETITIONERS-

XIV
-Statement of Facts- -Respondent-

However the court observed that “At this stage, it can’t be said that no primafacie offence is
made out against the petitioner. Thus the impugned charge-sheet does not call for any
interference.“
X
After appreciating the evidences on record, the trial court, on 02.03.2020 convicted Raghav
and following sentences were imposed on him: (1) Under Section 376 (1) IPC - 10 Years'
rigorous imprisonment with fine of Rs.10,000/- . (2) Under Section 506 (2) IPC-2 years'
rigorous imprisonment and also with fine of Rs.2000/-All the sentences were directed to run
concurrently.

XI

Trial court observed that – “Law is settled on the point that in a case of rape if the evidence of
the victim of offence of rape is found to be wholly reliable then the same can be made
foundation for recording the conviction against the accused and in such case no corroboration
inmaterial particulars shall be required. ”

The division bench of High Court On 5.02.2021 dismissed the appeal observing that “ We
don‟t find any illegality or perversity in judgment of Ld. Trial court. It is a settled law that if
the finding of trial court is based upon legal evidences and their fair interpretation, then such
finding should not be disturbed ”.

On the same day, the appellant was taken into custody . Aggrieved by the judgment of High
Court, Raghav has filed an appeal against conviction before Supreme Court of India.

-MEMORANDUM for THE PETITIONERS-

XV
-Arguments Advanced- -Respondent-

ARGUMENTS ADVANCED

1 WHETHER THE APPEALLANT IS PUNISHABLE FOR RAPE UNDER

SECTION 376 OF INDIAN PENAL COURT, 1860?
The counsel on behalf of the Raghav (hereinafter Appellant) pleads before the Hon’ble Court
that the appellant is not punishable for rape under §376 of Indian Penal Court, 1860. Sarita
Devi (hereinafter complainant) has conspired against the Appellant, using her daughter as a
pawn, relating to the an ongoing property dispute and the charges against him have not been
proved by corboration of circumstantial evidence.

The word Rape is defined under section 375 of IPC which reads as follow:

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:— 

1. Against her will.

 
2. Without her consent.
 
3. 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.
 
4. 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.
 
5. With her consent, when, at the time of giving such a 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.
 
6. 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.

-MEMORANDUM for THE PETITIONERS-

1
-Arguments Advanced- -Respondent-

By the statement of the Appellant it is made very clear that the X had

1.1 No Material Evidence To Constitute Rape

As per the Forensic Science Lab report there is no material evidence to constitute rape.
According to the medical examination report no injury on her body or on her private part was
found and there was no bleeding or redness or tenderness and no discharge was present.
Hymen was old torn and no bleeding was present and no redness or congestion, no tenderness
was found and vagina admitted two fingers easily. Uterus was of normal size. Vaginal smear
was taken and two slides were prepared for pathological test.As per the Forensic Science Lab
report no spermatozoa was reported on the pant and towel .

1.2 Clause (f) of section 376 IPC

Section 376 of IPC states that (1) Whoever, except in the cases provided for in sub-section
(2), commits rape, shall be punished with rigorous imprisonment of either description for a
term which 1 [shall not be less than ten years, but which may extend to imprisonment for life,
and shall also be liable to fine].

clause (f) of sun section (2) states being a relative, guardian or teacher of, or a person in
a position of trust or authority towards the woman, commits rape on such woman;

And, In the present case the appellant is a distant relative of the victim. 

2 INCONSISTENCY IN THE STATEMENTS OF X AND PW1

The council humbly submits in this Hon’ble court that, by analyzing the facts in hand, the
Session Court And High Court are very much unjustified in pressing charges of rape on the
appeallant as several inconsistencies can be found the statement recorded under U/s 161
Cr.P.C. and U/s 164 Cr.P.C

2.1. Denial of Rape Three Months Back by the Victim

-MEMORANDUM for THE PETITIONERS-

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-Arguments Advanced- -Respondent-

In the statement of the victim recorded U/s 161 Cr.P.C she stated – “I was raped by Raghav 3
months back also. I was very scared thus I couldn’t tell anyone then. But how could I keep
silence when the act was repeated. ”
However when the tatement of victim U/s 164 Cr.P.C. was recorded she repeated the whole
incident but she didn’t say anything about her allegation that Raghav had raped her at one
more instance. When magistrate pointed this out, she said that she had given statement of
rape on earlier occasion by mistake and Raghav had not raped her 3 months back but only
teased her.
Similarly the victim mention that couldn't recognise the person as it was dark but when she
tried to raise alarm she was threaten with dire consequences. How come she not recognise the
voice of a distant relative she was accustomed to hearing.

3 WHETHER THERE WAS A DELAY IN REGISTERING THE FIR?

The counsel on behalf of the Appellant humbly submits that as per the series of judgement
given by the apex court of India, there has been a substantial delay in lodging of FIP by the
victim. 2 weeks were spared before lodging the FIR which resulted in raising suspicions and
supported the fabricated story of the victim.

In the case of Bhushan Khanna vs State, it has been mentioned by the courts that inordinate
delay in filing of FIR is fatal to the chances of conviction as the medical, scientific, and
circumstantial evidence is most likely to vanish. Sarita Devi (PW1) depised the appeallant
which is made very clearly by the statement of victim recorded U/s 161 and section 164 of
Cr.P.C. where she stated " when I disclosed this incident to my mother who ridiculed Raghav
in return." In Ram Naresh and others vs the State of Chattisgarh, it has been established that
if the prosecution manages to explain sufficiently the reason for the inordinate delay, the
delay, in that case, would not be fatal to the case of the prosecution. But in the present case
the prosecution fails to give a reasonable explanation for the delay in filing of the FIR.

PW1 (Sarita Devi) waited for another 7 days after being informed of the incident which raises
suspicions about the intention of victim and her mother.

4. AGE OF X WAS RENDERED DOUBTFUL THUS MAKING HER CONSENT

MATERIAL

-MEMORANDUM for THE PETITIONERS-

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-Arguments Advanced- -Respondent-

As per the radiological test the age of X was about 18 years and as the appellant in his
statement mention that the act was committed by the consent of the arties involved,
therefore, entitled to the benefit of doubt, as the evidence indicated consent, on the part of
X, to the overtures of the appellant.

-MEMORANDUM for THE PETITIONERS-

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-Prayer - -Respondent-

PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED,

THE APPELLANT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. FREE THE APPEALLANT OF CHARGES PRESSED AGAINST

HIM UNDER SECTION 376 AND 506 OF IPC.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT FACTION SHALL BE

DUTY BOUND FOREVER.

SD/-

(COUNSEL FOR THE RESPONDENT)

-MEMORANDUM for THE PETITIONERS-

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