11TH RGNUL NATIONAL MOOT COURT COMPETITION, 2023

TC-02-D

11TH RGNUL NATIONAL MOOT COURT COMPETITION, 2023

STATE OF TELHI …………………………....………………………………… PROSECUTION

VS

MR. SAMARTH …………………………………...………………………………DEFENDANT

BEFORE THE HON’BLE SESSIONS COURT OF TELHI

U/S 177 R/W 209 OF THE CODE OF CRIMINAL PROCEDURE, 1973.

FOR THE OFFENCE CHARGED

U/S 376 & 406 OF THE INDIAN PENAL CODE, 1860

MEMORIAL FOR DEFENDANT

MEMORIAL for DEFENDANT 1

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TABLE OF CONTENTS
INDEX OF AUTHORITIES 2

LIST OF ABBREVIATIONS 4

STATEMENT OF JURISDICTION 5

STATEMENT OF FACTS 6

STATEMENT OF CHARGES 7

SUMMARY OF ARGUMENTS 8

ARGUMENTS ADVANCED I

I. THE DEFENDANT IS NOT GUILTY OF CRIMINAL BREACH OF TRUST UNDER

SECTION 406 OF THE INDIAN PENAL CODE, 1860 I

A. Criminal Breach of Trust is used in property matters and has no application

in the present case I

B. The ingredients of Criminal Breach of Trust are absent II

II. THE DEFENDANT IS NOT GUILTY OF RAPE UNDER SECTION 376 OF THE

INDIAN PENAL CODE, 1860 III

A. The promise given by the Defendant was not a false promise of marriage III

B. The promise itself did not bear immediate relevance to the prosecutrix’
consent to engage in sexual intercourse VI

C. Testimonies of all the witnesses and evidences do not establish the guilt of the
defendant beyond reasonable doubt VIII

III. THERE WAS A SUBSTANTIAL DELAY IN FILING OF THE F.I.R. AND SUCH DELAY
IS FATAL TO THE CASE X

PRAYER 10

MEMORIAL for DEFENDANT 1

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INDEX OF AUTHORITIES

CASES PAGE NO.

Angad v. State of Maharashtra, 2018 SCC OnLine Bom 277. XI

Anurag Soni v. State of Chhattisgarh, (2019) 6 Scale 211 V
Bhuban Mohan Rana v. Surendra Mohan Das, ILR (1952) 2 Cal 23 I
Debabrata Gupta v. S.K. Ghosh, (1970) 1 SCC 521. I
Debi Prasad Bhattacharyya, 2012 SCC OnLine Cal 9687 I
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. VII
Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191. V
Dhruvaram, (2019) 18 SCC 191 at 202. VII
Dileep Singh v. State of Bihar, (2005) 1 SCC 88 III
Diptesh Roy v. State of West Bengal, 2015 SCC OnLine Cal 8375. VII
Ganaraj Enterprises v. Vithal Jayram Gavali and Others, 2017 SCC OnLine I
Bom 7095
Jayanti Rani Panda v. State, 1983 SCC OnLine Cal 98. IV
Joy Dev Nath v. State (NCT of Delhi), 2022 SCC OnLine Del 269 XI
Mahesh Balkrishna Dandane v. State of Maharashtra, 2014 SCC OnLineBom V
348.
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1. X
Naim Ahamed v. State (NCT of Delhi), 2023 SCC OnLine SC 89. V
Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608. III
Rajeev Kisan Patil v. State of Maharashtra, 2003 SCC OnLine Bom 146. V
Ramakant Rai v. Madan Rai, (2003) 12 SCC 395. VIII
Safdar Abbas Zaidi v. State of Telangana, 2018 SCC OnLine Hyd 179. V
Samsung India Electronics Pvt. Ltd. v. State of Assam, 2012 SCC OnLine Gau I
270.
Santosh Kumar Nayak v. State of Odisha, MANU/OR/1306/2022 III
Shobhaben Bipinbhai Trivedi v. State of Gujarat, 2016 SCC OnLine Guj 7063 II
Shyamapada Tewari v. State of West Bengal, 2009 (1) C. Cr LR (Cal) 266. VII
State of A.P. v. M. Madhusudhan Rao, (2008) 15 SCC 582. X
State of Punjab v. Bhajan Singh, AIR 1975 SC 258. VIII

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State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 VIII

State of U.P. v. Naushad, (2013) 16 SCC 651. VII
Sukanta Roy Chowdhury v. State of W.B., 2023 SCC OnLine Cal 319 II
Tejas Udaykumar Sarvaiya v. State of Maharashtra, 2016 SCC OnLine Bom VII
6347
Uday v. State of Karnataka, (2003) 4 SCC 46. III
Vijayan v. State of Kerala, (2009) 3 SCC (Cri) 585. XI
Yogendra Pal Jain v. State of Maharashtra, 2022 SCC OnLine Bom 8386. I

STATUTES PAGE NO.

Code of Criminal Procedure, 1973, § 161, No. 2, Acts of Parliament, 1973 II

(India).
Code of Criminal Procedure, 1973, § 164, No. 2, Acts of Parliament, 1973 II
(India).
Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India). III, X
Indian Penal Code, 1860, § 376,No. 45, Acts of Parliament, 1860 (India). II
Indian Penal Code, 1860, § 406,No. 45, Acts of Parliament, 1860 (India). I
Indian Penal Code, 1860, § 90, No. 45, Acts of Parliament, 1860 (India). IV

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LIST OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

Bom Bombay High Court

Cal Calcutta High Court

Crim LJ Criminal Law Journal

Cr.P.C. Codes of Criminal Procedure, 1973.

PW Prosecution Witness

F.I.R. First Information Report

HC High Court

IEA Indian Evidence Act

IPC Indian Penal Code

No. Number

Ors. Others

Pg. Page Number

r/w Read With

s. Section

SC Supreme Court

SCC Supreme Court Cases

S. No. Serial Number

u/s. Under Section

v. Versus

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STATEMENT OF JURISDICTION

The Honourable Sessions Court has the jurisdiction to try the instant matter under Sec. 177 r/w
Sec. 209 of the Code of Criminal Procedure, 1973.

Section 177:
“177. 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.”

r/w Section 209:

“209. Commitment of case to Court of Session when offence is triable exclusively by it:
When, in a case instituted on a police report or otherwise, the defendant appears or is
brought before the Magistrate and it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall-
(a) Commit the case to the Court of Session;
(b) Subject to the provisions of this Code relating to bail, remand the defendant to custody
during, and until the conclusion of, the trial;
(c) Send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.”

The Counsels for the Defendant most respectfully submit to this jurisdiction of the Honourable
Sessions Court.

MEMORIAL for DEFENDANT

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STATEMENT OF FACTS

BACKGROUND
Tina and Samarth are individuals who live in Telhi. The two of them met during their LL.M
studies at the University of Telhi in the year 2015 and developed a close friendship. Over time,
they spent significant time together and their relationship evolved into a romantic one. As Tina
and Samarth resided with their respective families, both families interacted frequently and
developed a strong rapport. They convened for occasional family dinners and frequently
exchanged greetings on special occasions and festivals.

INCIDENT
On the 27th of June in the year 2016, during the concluding phase of their LL.M program, Tina
and Samarth made reservations at YO-YO Hotel in Telhi with the intention of celebrating the
successful completion of their program. After consuming small quantity of alcohol, the couple
engaged in consensual sexual intercourse.

ENSUING EVENTS
After that day, they became sexually active with each other. However, a disagreement ensued
between Samarth and Tina. This disagreement arose after Tina witnessed Samarth at a
conspicuous eatery in Central Telhi comforting an old friend who had recently undergone a
traumatic experience. Following this incident, Tina and Samarth's relationship began to
deteriorate slowly as she increasingly grew suspicious of Samarth and the habit kept getting
worse with time. On the 1st of December in the year 2016, the families of both Tina and
Samarth met to explore the possibility of conducting a formal 'roka ceremony' to signify the
intention of both parties to end their search for suitable partners for their respective wards.
However, on the 10th of December in the same year, Samarth contacted Tina to inform her of
his decision to end their relationship due to her "suspicions and doubting habits".

Tina blocked Samarth on all social media platforms. On 24th December 2016, an F.I.R. bearing
No. 411/2016 was lodged by Tina at PS Telhi Central, alleging Criminal Breach of Trust and
Rape under the "false pretext of marriage". The statements of Tina were recorded under Section
164 of Cr.P.C. by the Judicial Magistrate and a chargesheet was filed before the Sessions Court
of Central Telhi. Subsequently, the Sessions Court framed charges under Section 406 and 376
of IPC.

MEMORIAL for DEFENDANT

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STATEMENT OF CHARGES

The Defendant Mr. Samarth has been charged under Section 376 and 406 of the Indian Penal
Code, 1860.

MEMORIAL for DEFENDANT

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SUMMARY OF ARGUMENTS

I. THE DEFENDANT IS NOT GUILTY OF CRIMINAL BREACH OF TRUST UNDER SECTION

406 OF THE INDIAN PENAL CODE

It is humbly submitted before the Hon’ble Sessions Court that Mr. Samarth (hereinafter
referred to as “the defendant”) is not guilty of Criminal Breach of Trust under Section 406 of
the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The allegations in the First
Information Report (hereinafter referred to as “F.I.R.”) registered by Ms. Tina (hereinafter
referred to as “the prosecutrix”) do not make out a charge of Criminal Breach of Trust as the
facts of this case do not fulfil the ingredients of Criminal Breach of Trust. Since there is no
entrustment of property with the defendant, there is no question of dishonestly
misappropriating such property. Therefore, this charge has absolutely no application in the
present case.

II. THE DEFENDANT IS NOT GUILTY OF RAPE UNDER SECTION 376 OF THE INDIAN PENAL
CODE, 1860

It is humbly submitted before the Hon’ble Sessions Court that the defendant is not guilty of
Rape under Section 376 of IPC as the consent of the prosecutrix was not obtained by a
misconception of fact. The promise given by the defendant was not a false promise of marriage
as he truly intended to marry the prosecutrix. The defendant did not have reason to believe that
the prosecutrix had given her consent solely on the basis of the promise. The defendant had to
end the relationship due to the change in behaviour of the prosecutrix; hence it is merely a
breach of promise and not a false promise of marriage. Further, the testimonies of all the
witnesses and evidences do not prove the guilt of the defendant beyond reasonable doubt.
Therefore, the defendant cannot be held guilty of rape under Section 376 of IPC.

III. THERE WAS A SUBSTANTIAL DELAY IN FILING OF THE F.I.R. AND SUCH DELAY IS

FATAL TO THE CASE

It is humbly submitted before the Hon’ble Sessions Court that there was a substantial delay in
the filing of the F.I.R. which is fatal to the case. The delay in F.I.R. can cast a serious doubt on
its veracity, as the danger of coloured version, exaggerated account of the incident or a
concocted story as a result of deliberations and consultations, also creeps in. The prosecution

MEMORIAL for DEFENDANT

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must provide reasonable justification for such delay; however, no such justification has been
provided by the prosecution. Therefore, such unjustified delay in filing of the F.I.R. goes
against the cornerstones of established law and is fatal to the case.

MEMORIAL for DEFENDANT

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ARGUMENTS ADVANCED

I. THE DEFENDANT IS NOT GUILTY OF CRIMINAL BREACH OF TRUST UNDER SECTION 406
OF THE INDIAN PENAL CODE, 1860

(¶1). It is humbly submitted that the Hon’ble Sessions Court has erred in framing the charges
and the defendant is not guilty of Criminal Breach of Trust under Section 406 of the Indian
Penal Code, 1860 (Hereinafter referred to as “IPC”). Criminal Breach of Trust is used in
property matters and has no application in the present case [A]; and the ingredients of Criminal
Breach of Trust are absent in the present case [B].

A. CRIMINAL BREACH OF TRUST IS USED IN PROPERTY MATTERS AND HAS NO

APPLICATION IN THE PRESENT CASE

(¶2). Section 406 of IPC1 is the penal provision which prescribes punishment for Criminal
Breach of Trust.2 Criminal Breach of Trust has been defined in Section 405 of IPC.3

(¶3). In Criminal Breach of Trust, the defendant acquires possession of the property or
acquires dominion over the property honestly, but he develops dishonest intention subsequent
to the taking possession of the property and, having developed such dishonest intention, he
dishonestly misappropriates or converts to his own use the property or dishonestly uses or
disposes of the property in violation of any direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract, express or implied, which he has made
touching the discharge of such trust, or wilfully suffers any other person so to do.4

(¶4). To establish Criminal Breach of Trust, it is a pre-requisite that the person charged has
been entrusted with property or with dominion over the property.5 There must be entrustment
and therefore, the person defendant must be shown to have held the property in a fiduciary
capacity.6 This offence can be committed by the person to whom the property is entrusted and
the complainant in such case would be the person entrusting the property to another.7

(¶5). In the present case, the prosecutrix had stated that the defendant had raped her on the

1
Indian Penal Code, 1860, § 406,No. 45, Acts of Parliament, 1860 (India).
2
Yogendra Pal Jain v. State of Maharashtra, 2022 SCC OnLine Bom 8386.
3
Debi Prasad Bhattacharyya, 2012 SCC OnLine Cal 9687.
4
Samsung India Electronics Pvt. Ltd. v. State of Assam, 2012 SCC OnLine Gau 270.
5
Debabrata Gupta v. S.K. Ghosh, (1970) 1 SCC 521.
6
Bhuban Mohan Rana v. Surendra Mohan Das, ILR (1952) 2 Cal 23.
7
Ganaraj Enterprises v. Vithal Jayram Gavali and Others, 2017 SCC OnLine Bom 7095.

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false pretext of marriage in June 2016 and her consent was induced through fraud and coercion.
8
The chain of events does not include any instance of entrustment of property or valuables
with the defendant by the prosecutrix.

(¶6). The present case is mainly for the purpose of foisting the defendant with a criminal
liability under 376 of IPC9. However, provisions of s.406 of IPC relate to only entrustment of
property or dominion over the property.

(¶7). Since there is no allegation of entrustment of any property in this case, therefore,
Section 406 does not apply to this case.

B. THE INGREDIENTS OF CRIMINAL BREACH OF TRUST ARE ABSENT

(¶8). The offence of Criminal Breach of Trust necessarily involves the ingredients of (a)
entrustment of the property; and (b) a dishonest misappropriation or conversion of the property
by the agent to his own use; or (c) dishonest use or disposal of the property in violation of the
mandate of the law prescribing the mode in which the entrustment is to be discharged; or (d)
dishonest use or disposal of the property in violation of the terms of any legal contract either
express or implied regarding the discharge of the entrustment, or wilfully allowing some other
person to do so.10

(¶9). In the present case, the complainant registered an F.I.R. pertaining to Criminal Breach
of Trust and Rape on the “false pretext of marriage” on 24th December 2016.11 So far as the
allegations relating to s.406 of IPC are concerned, there are no materials either in the statement
of the prosecutrix under s.16112 or s.16413 of the Code of Criminal Procedure (hereinafter
referred to as “Cr.P.C.”), in respect of entrustment of any valuables.14 Since there is no
entrustment of property or valuables, the question of dishonest misappropriation or dishonest
use or disposal of property does not arise. Similarly, there is no question of dishonest use or
disposal of property in violation of law or any legal contract.

(¶10). As the ingredients of Criminal Breach of Trust are absent in the present case, therefore,
the offence of Criminal Breach of Trust cannot be said to have been committed by the

8
Moot Problem, at page 2.
9
Indian Penal Code, 1860, § 376,No. 45, Acts of Parliament, 1860 (India).
10
Shobhaben Bipinbhai Trivedi v. State of Gujarat, 2016 SCC OnLine Guj 7063.
11
Moot Problem, at page 2.
12
Code of Criminal Procedure, 1973, § 161, No. 2, Acts of Parliament, 1973 (India).
13
Code of Criminal Procedure, 1973, § 164, No. 2, Acts of Parliament, 1973 (India).
14
Sukanta Roy Chowdhury v. State of W.B., 2023 SCC OnLine Cal 319.

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defendant.

(¶11). Thus, the Sessions Court has erred in framing the charges as the present case is not
related to entrustment of any property and therefore, the defendant cannot be held guilty for
the offence of Criminal Breach of Trust.

II. THE DEFENDANT IS NOT GUILTY OF RAPE UNDER SECTION 376 OF THE INDIAN PENAL
CODE, 1860

(¶12). It is humbly submitted before the Hon’ble Sessions Court that the defendant is not
guilty of Rape under Section 376 of IPC as the promise given by the defendant was not a false
promise of marriage [A]; the promise itself did not bear immediate relevance to the prosecutrix’
consent to engage in sexual intercourse with the defendant [B]; and the testimonies of all the
witnesses and evidences do not establish the guilt of the defendant beyond reasonable doubt
[C].

A. THE PROMISE GIVEN BY THE DEFENDANT WAS NOT A FALSE PROMISE OF

MARRIAGE

(¶13). Section 376 of IPC prescribes the punishment for the offence of rape, which is set out
in Section 375.15 In Section 375 of the IPC16, rape has been defined as certain sexual acts when
committed on a victim, falling under any of the seven descriptions given in the said section.17

(¶14). The IPC defines what cannot be regarded as “consent” under the Code in Section 90.18
According to Section 9019, a “consent” based on a “misconception of fact” is not consent in the
eyes of the law.20 There is no strait jacket formula for determining whether consent given by
the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception
of fact.21

(¶15). To establish whether the "consent" was vitiated by a "misconception of fact" arising
out of a promise to marry, two propositions must be established. The promise of marriage must
have been a false promise, given in bad faith and with no intention of being adhered to at the

15
Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608.
16
Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).
17
Santosh Kumar Nayak v. State of Odisha, MANU/OR/1306/2022.
18
Dileep Singh v. State of Bihar, (2005) 1 SCC 88.
19
Indian Penal Code, 1860, § 90, No. 45, Acts of Parliament, 1860 (India).
20
Pramod, (2019) 9 SCC 608 at 616.
21
Uday v. State of Karnataka, (2003) 4 SCC 46.

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time it was given. The false promise itself must be of immediate relevance or bear a direct
nexus to the woman's decision to engage in sexual act.22

(¶16). In the present case, the “misconception of fact” alleged by the prosecutrix is the
defendant’s promise to marry her.23 In a case of this nature, two conditions are required to be
proven for the application of Section 90 24; whether the defendant truly intended to marry the
prosecutrix and whether the defendant knew or had reason to believe that the consent was given
in consequence of such misconception.25

(¶17). Therefore, it is humbly submitted before the Hon’ble Sessions Court that the defendant
truly intended to marry the prosecutrix [i]; and he did not know, or had reason to believe, that
the consent was given based solely on the promise [ii].

i. The defendant truly intended to marry the prosecutrix

(¶18). The consent given by the prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her on a later date, cannot be said to be
given under a “misconception of fact”. A false promise is not a fact within the meaning of the
Code.26

(¶19). The failure to keep the promise at a future uncertain date due to reasons not clearly
established by evidence does not always amount to “misconception of fact” at the inception of
the act itself. If a major woman consents to the act of sexual intercourse on a promise of
marriage and continues to indulge in such activity, it is an act of promiscuity on her part and
not an act induced by “misconception of fact”. Section 90 of IPC cannot be called in aid in
such a case unless the Court is assured that from the very inception, the defendant never really
intended to marry the prosecutrix.27

(¶20). A breach of a promise cannot be said to be a false promise.28 There is a distinction

between mere breach of a promise and making a false promise. If the defendant has not made
the promise with the sole intention of seducing the prosecutrix to indulge in sexual acts, such
an act would not amount to rape.29 To establish a false promise, the maker of the promise

22
Pramod, (2019) 9 SCC 608 at 620.
23
Pramod, (2019) 9 SCC 608 at 617.
24
Indian Penal Code, 1860, § 90, No. 45, Acts of Parliament, 1860 (India).
25
Uday, (2003) 4 SCC 46 at 58.
26
Id. at 56.
27
Jayanti Rani Panda v. State, 1983 SCC OnLine Cal 98.
28
Pramod, (2019) 9 SCC 608 at 618.
29
Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191.

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should have had no intention of upholding his word at the time of giving it.30

(¶21). In case of breach of promise, there is always a possibility that the defendant might have
given a promise with all seriousness to marry the prosecutrix, and subsequently might have
encountered certain circumstances unforeseen by him or the circumstances beyond his control,
which prevented him from fulfilling his promise.31

(¶22). A person may choose to withdraw from a relationship due to physical, emotional or
psychological incompatibility.32 A sexual relationship may gradually dry out because of lack
of physical or psychological comfort between the couple.33 Anyone can choose to withdraw
from the relationship after a period of time due to compatibility defects. As a consequence, no
one may be compelled to marry someone purely on the basis of their sexual attraction.34

(¶23). The law does not take into account a breach of promise at a later date when the evidence
does not suggest beyond reasonable doubt that the promise was not intended to be fulfilled
from the beginning. If the defendant intended to marry the prosecutrix but changed his mind
later, then it cannot be constituted as rape.35 It would be folly to treat each breach of promise
to marry as a false promise and to prosecute a person for the offence under Section 376.36

(¶24). In the present case, the defendant and the prosecutrix knew each other since 2015 and
were in love with each other. Even the families knew each other and frequently got together to
have dinner. In June, 2016, the two of them booked a room in YO-YO hotel to celebrate the
completion of their LL.M. programme. On that day, the defendant had promised the prosecutrix
that they will marry soon. The defendant has always been clear that he was willing to marry
the prosecutrix once he opens his own law office and starts working independently.37

(¶25). However, since the day the prosecutrix saw the defendant comforting an old friend who
recently went through a traumatic event, she fought and increasingly grew suspicious of the
defendant, which kept getting worse with time. The defendant felt like they were drifting apart
from each other and these habits of the prosecutrix started to affect the health of the
relationship. As a result, on 10 December, 2016, the defendant called the prosecutrix and out
of annoyance told the prosecutrix that he wanted to part ways because of her “suspicions” and

30
Pramod, (2019) 9 SCC 608 at 618.
31
Naim Ahamed v. State (NCT of Delhi), 2023 SCC OnLine SC 89.
32
Safdar Abbas Zaidi v. State of Telangana, 2018 SCC OnLine Hyd 179.
33
Mahesh Balkrishna Dandane v. State of Maharashtra, 2014 SCC OnLineBom 348.
34
Rajeev Kisan Patil v. State of Maharashtra, 2003 SCC OnLine Bom 146.
35
Anurag Soni v. State of Chhattisgarh, (2019) 6 Scale 211.
36
Naim, 2023 SCC OnLine SC 89.
37
Moot Problem, at page 11.

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“doubting habits”.38

(¶26). The defendant did not marry anyone else in this intervening period as well. He even
intended to reconcile with the prosecutrix, however, he got no opportunity to do so as she had
blocked him on all social media platforms. All these facts indicate that the defendant truly
loved the prosecutrix and wanted to marry her. However, as the relationship was deteriorating
on account of the suspicions and doubting habits of the prosecutrix, the defendant made the
call to end the relationship.

(¶27). Therefore, the defendant truly intended to marry the prosecutrix at the time of giving
the promise, hence, consent was not given under a misconception of fact.

ii. The defendant did not know, or had reason to believe, that the consent
was given based solely on the promise

(¶28). Many times promises are made by a person to their lover that they will get married
under any circumstances. Such promises are given when they are overwhelmed by emotions
and passion. In these situations, the promise cannot be considered a significant factor to the
consent given by the other person where they, in a weak moment, succumb to the temptation
of having a sexual relationship.39

(¶29). In the present case, the defendant and the prosecutrix knew each other since 2015. It is
not disputed that they were deeply in love. They met often, and it does appear that the
prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom
one is in deep love. The defendant had reason to believe that the consent given by the
prosecutrix was the result of their deep love for each other. There is no evidence to prove the
fact that the defendant knew, or had reason to believe, that the prosecutrix had consented to
having sexual intercourse with him only as a consequence of her belief, based on his promise,
that they will get married in due course.40

(¶30). Therefore, the defendant did not have reason to believe, that the prosecutrix had
consented to indulging in sexual intercourse with him based solely on his promise.

B. THE PROMISE ITSELF DID NOT BEAR IMMEDIATE RELEVANCE TO THE

38
Id.
39
Id.
40
Uday, (2003) 4 SCC 46 at 58.

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PROSECUTRIX’ CONSENT TO ENGAGE IN SEXUAL INTERCOURSE

(¶31). There is a clear distinction between rape and consensual sex. The acknowledged
consensual physical relationship between the parties would not constitute an offence under
Section 376 IPC.41 There are cases where the prosecutrix agrees to have sexual intercourse on
account of her love and passion for the defendant, and not solely on account of the promise
made to her by the defendant.42 If a fully grown-up woman consents to sex before marriage
and engages in it on a regular basis then it proves promiscuity on her part and the promise has
no significant impact on her consent.43

(¶32). It is expected from a major and educated woman to know the nature and quality of the
act and hence her participation in sexual intercourse cannot be taken to be obtained by fraud.44
It can be safely presumed that the prosecutrix possessed sufficient intelligence to ascertain the
moral quality of the act and she gave her consent only after due deliberation on the pros and
cons of indulgence in sexual intercourse before marriage.45 There is nothing on record to
indicate that she was incapable of understanding the nature and implication of the act of the
defendant for which she consented to.46

(¶33). In the present case, the defendant and the prosecutrix knew each other since 2015 and
were in a consensual relationship for more than a year. They are both educated adults who
completed their LL.M. from University of Telhi. Their families knew each other very well and
the two of them were deeply in love with each other. To celebrate the completion of their LL.M.
programme, both the defendant and the prosecutrix checked in to YO-YO Hotel. On that day,
the prosecutrix and the defendant had sexual intercourse and the defendant promised that he
will marry the prosecutrix.

(¶34). From the above, it cannot be inferred that the consent of the prosecutrix was solely
based on the promise made by the defendant. Since that incident, the two of them had sexual
intercourse occasionally. It cannot be said that the consent of the prosecutrix for every
subsequent sexual act was also based on the promise made by the defendant during their stay
in YO-YO hotel. It is evident that the prosecutrix was deeply in love with the defendant and

41
Dhruvaram, (2019) 18 SCC 191 at 202.
42
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675.
43
Shyamapada Tewari v. State of West Bengal, 2009 (1) C. Cr LR (Cal) 266.
44
Tejas Udaykumar Sarvaiya v. State of Maharashtra, 2016 SCC OnLine Bom 6347.
45
Diptesh Roy v. State of West Bengal, 2015 SCC OnLine Cal 8375.
46
State of U.P. v. Naushad, (2013) 16 SCC 651.

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on account of the love and passion, she consented to the sexual act.

(¶35). Further, the prosecutrix was not an uneducated woman who does not understand the
nature and consequences of the act. The prosecutrix had completed her LL.M. in the same
college as the defendant. The prosecutrix possessed sufficient knowledge about the nature,
consequences, and moral quality of the sexual act and gave her consent after due deliberation
of the pros and cons of indulging in sexual intercourse before marriage. The prosecutrix, being
a grown-up and educated woman, consented to sexual intercourse before marriage not just
once, but indulged in such acts with the defendant later as well.

(¶36). Therefore, it is absolutely clear that the promise made by the defendant did not bear
immediate relevance to the prosecutrix’ consent to engage in the sexual act.

C. TESTIMONIES OF ALL THE WITNESSES AND EVIDENCES DO NOT ESTABLISH THE

GUILT OF THE DEFENDANT BEYOND REASONABLE DOUBT

(¶37). A person has, no doubt, a profound right not to be convicted of an offence which is not
established by the evidential standard of proof beyond reasonable doubt.47 To prove a case
“beyond reasonable doubt”, there must be a fair doubt based upon reason and common sense
arising out of the evidence of the case.48 If there exists a gap or lacuna in the story or evidence
of the prosecution and the link is not well connected to convict the defendant beyond reasonable
doubt, the benefit of doubt must go to the defendant.49

(¶38). In cases where the prosecutrix alleges rape on false pretext of marriage, the prosecution
faces the burden of not only proving that consent was a result of misconception of fact but also
that the defendant knew or had reason to believe that so was the case.50 The burden is on the
prosecution to prove each and every ingredient of the offence.51

(¶39). In the present case, there are no eye-witnesses as none of the prosecution witnesses
except the prosecutrix were present in the hotel on 27th June, 2016. Taking the statements of
the prosecutrix u/s 161 and 164 Cr.P.C. into account, it has been stated by the prosecutrix that
both of them were in love with each other and their families were acquainted with each other
as well. They used to share private moments and went on long vacations. This only corroborates

47
State of U.P. v. Krishna Gopal, (1988) 4 SCC 302.
48
Ramakant Rai v. Madan Rai, (2003) 12 SCC 395.
49
State of Punjab v. Bhajan Singh, AIR 1975 SC 258.
50
Pradeep Kumar v. State of Bihar, (2007) 7 SCC 413.
51
Uday, (2003) 4 SCC 46 at 57.

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the defendant’s stand that he was deeply in love with the prosecutrix and always intended to
marry her.

(¶40). Further, the prosecutrix has also stated that the defendant called her on 10 December,
2016 to inform her that he wanted to break the relationship, which came just 10 days after the
families of the defendant and the prosecutrix met to discuss the possibility of “roka” between
them.52 Had the defendant never intended to marry the prosecutrix, he could have stopped his
family from meeting the family of the prosecutrix to discuss about “roka” or he could have
broken up with the prosecutrix before the families met.

(¶41). The fact that he did not stop the meeting of the families and ended the relationship ten
days after that shows that he actually wanted to marry the prosecutrix, but ended the
relationship out of annoyance due to the prosecutrix’ doubting and suspicious nature. These
statements made by the prosecutrix further corroborates the fact that the defendant never had
any ill intention and had truly intended to marry the prosecutrix.

(¶42). The statements given by PW2 u/s 161 Cr.P.C. also fail to prove the guilt of the
defendant. Instead, he has stated that the defendant and the prosecutrix were constantly in touch
with one another and used to hang out frequently. He also stated that the prosecutrix’ family
had no doubt or reason to disbelieve that both of them were in a serious relationship and looked
forward to getting married.53 Thus, the statements of PW2 only further establishes the fact that
the defendant intended to marry the prosecutrix.

(¶43). The statements given by PW3 u/s 161 Cr.P.C. are only related to the medical
examination of the prosecutrix conducted by PW3 after filing of the F.I.R. Thus, this does not
play any role in proving the guilt of the defendant.

(¶44). From the evidence on record, it cannot be inferred that the defendant gave a promise of
marriage while not intending to keep it. The Whatsapp chats produced by the prosecutrix dated
28th June, 2016 only goes to show that the defendant promised to marry the prosecutrix the day
after the alleged incident, a fact which has not been challenged by the defendant. It does not
establish the defendant’s intention at the time of making the promise. Further, the medical
report is only related to the physical condition of the prosecutrix and plays no part in proving
the guilt of the defendant beyond reasonable doubt.

(¶45). There is no evidence which gives rise to an inference beyond reasonable doubt that the

52
Moot Problem, at page 8.
53
Moot Problem, at page 9.

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defendant had no intention to marry the prosecutrix at all from the inception and that the
promise he made was false to his knowledge. No circumstances emerging from the prosecution
evidence establish this fact.54 It could not be said by any stretch of imagination that the
defendant had committed rape within the meaning of second clause of Section 37555 read with
Section 90 of IPC from the presented evidences and witnesses.56 Thus, the testimonies of all
the witnesses and evidences do not establish the guilt of the defendant beyond reasonable
doubt.

(¶46). Therefore, it is humbly submitted that the defendant is not guilty of the offence of rape
under Section 376 of IPC.

III. THERE WAS A SUBSTANTIAL DELAY IN FILING OF THE F.I.R. AND SUCH DELAY IS FATAL
TO THE CASE

(¶47). It is humbly submitted that there exist procedural lapses in the prosecution of the
defendant as there was a substantial delay in filing of the F.I.R. Time and again, the object and
importance of prompt lodging of the F.I.R. has been highlighted by the Courts. A delayed F.I.R.
not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured
version, exaggerated account of the incident or a concocted story as a result of deliberations
and consultations, also creeps in, casting a serious doubt on its veracity.57 Therefore, it becomes
necessary for the prosecution to satisfactorily explain the delay.58

(¶48). It is very dangerous to convict the defendant in cases where the only evidence available
is the sole testimony of the prosecutrix, especially where there has been delay in filing the
F.I.R., as it may leave the defendant totally defenceless.59 Such an unexplained delay casts a
prima facie doubt on the complaint itself.60

(¶49). It is settled law that inordinate delay in registration of F.I.R. without any plausible
explanation may prove fatal to the case of the prosecution. If no plausible explanation is offered
by the prosecution for delay in lodging the F.I.R., then the defendant cannot be convicted for
the offence of rape.61

54
Dileep, (2005) 1 SCC 88 at 106.
55
Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).
56
Naim, 2023 SCC OnLine SC 89.
57
State of A.P. v. M. Madhusudhan Rao, (2008) 15 SCC 582.
58
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
59
Vijayan v. State of Kerala, (2009) 3 SCC (Cri) 585.
60
Joy Dev Nath v. State (NCT of Delhi), 2022 SCC OnLine Del 269.
61
Angad v. State of Maharashtra, 2018 SCC OnLine Bom 277.

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(¶50). In the present case, the F.I.R. bearing No. 411/2016 was filed on 24th December, 2016;
14 days after the relationship between the defendant and the prosecutrix ended.62 The
prosecution has not given the justification behind such delay in filing the F.I.R. There is neither
any direct evidence to explain the delay nor do the circumstances of the case provide a
reasonable explanation for the delay. The fact that the report was lodged belatedly i.e., after 14
days of the break up, and the prosecution has failed to provide any justification for the
occurrence of the said delay is a relevant fact, of which the Court has to take notice and the
same has to be considered in the light of other facts and circumstances of the case.

(¶51). Therefore, the prosecution has failed to explain the delay in filing the F.I.R. and such
substantial delay is fatal to the case.

62
Moot Problem, at page 2.

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PRAYER

In the light of the facts stated, arguments advanced and authorities cited, it is most humbly
prayed and implored before the Hon’ble Sessions Court that it may be pleased to:

I. Acquit Samarth of the offence of committing Rape and Criminal Breach of Trust under
sections 376 and 406 of the Indian Penal Code, 1860.

Also, pass any other order that it may deem fit in favour of the Defendant in the light of
equity, justice and good conscience.

For this act of kindness, the Defendant shall duty bound forever pray.

Place: Telhi S/d

Dated: ……… Counsel for Defendant

MEMORIAL for DEFENDANT

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