Blue Moot Memorial

TC-13-P
11TH RGNUL NATIONAL MOOT COURT COMPETITION 2023
IN THE FORM OF TRIAL ADVOCACY
BEFORE THE HON’BLE SESSIONS COURT OF CENTRAL TELHI
CRIMINAL PETITION NO._____/2017
UNDER SECTION 177 OF THE CODE OF CRIMINAL PROCEDURE, 1973
IN THE MATTER OF
STATE OF TELHI SAMARTH

(PROSECUTION) V. (DEFENCE)
MEMORIAL for PROSECUTION

11TH RGNUL NATIONAL MOOT COURT COMPETITION, 2023
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................................I
LIST OF ABBREVIATIONS......................................................................................................... III
INDEX OF AUTHORITIES .......................................................................................................... IV
STATEMENT OF JURISDICTION ..................................................................................................X
STATEMENT OF FACTS ............................................................................................................ XI
ISSUES RAISED ....................................................................................................................... XIII
SUMMARY OF ARGUMENTS ................................................................................................... XIV
PLEADINGS................................................................................................................................. 1
1. THE ACCUSED IS GUILTY OF RAPE ON “FALSE PRETEXT OF MARRIAGE.” ................ 1
1.1 The Sexual Intercourse was ‘against her will’......................................................... 1
1.2 The Sexual Intercourse was ‘without her consent’ .................................................. 2
1.2.1 Consent was based on ‘misconception of fact.’ ............................................... 2
1.2.2 Absence of Physical Injuries does not amount to consent. .............................. 5
1.2.3 Burden of Proof ................................................................................................ 5
1.3 ‘Two-Pronged Test’ for Rape on False Pretext of Marriage is satisfied ................. 6
1.3.1 Samarth had no intention of fulfilling his promise since its inception. ............ 7
1.3.2 There was an immediate nexus between consent and promise. ....................... 8
1.4 Admissibility of Evidence ....................................................................................... 9
1.4.1 Oral Evidence ................................................................................................... 9
1.4.2 Documentary Evidence .................................................................................. 10
1.4.3 Circumstantial Evidence ................................................................................ 11
1.5 Defence of Intoxication is not attracted ................................................................. 11
2. THE ACCUSED IS NOT GUILTY OF CRIMINAL BREACH OF TRUST.............................. 12
2.1 Charge of section 406 is not appropriate ............................................................... 12
i
2.2 Plea for Alteration of Charges is maintainable ...................................................... 13
2.2.1 Essentials of Section 216(1) are met. ............................................................. 13
2.2.2 Essentials of Section 216 (2) to (5) are met. .................................................. 14
2.3 The Accused is guilty of Cheating ........................................................................ 14
2.3.1 There was an act of deception by the accused ............................................... 15
2.3.2 The deception by accused was intentional. .................................................... 16
2.3.3 Tina would not have consented but for the intentional deception. ................ 17
2.3.4 There was harm to body, mind, and reputation. ............................................ 17
3. THERE ARE NO DISCREPANCIES IN THE FIR. ............................................................. 18
3.1 Delay in FIR .......................................................................................................... 18
3.2 Grounds in FIR ...................................................................................................... 19
PRAYER .................................................................................................................................... 20
ii
LIST OF ABBREVIATIONS
ABBREVIATION ACTUAL TERM
AIR All India Reporter
& And
Anr. Another
CrPC Code of Criminal Procedure
DW Defence Witness
Dr Doctor
FIR First Information Report
HC High Court
Hon’ble Honourable
IEA Indian Evidence Act
IPC Indian Penal Code
No. Number
Ors. Others
PS Police Station
PW Prosecution Witness
r/w Read with
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
UOI Union of India
v. Versus
iii
INDEX OF AUTHORITIES
LIST OF CASES
S. NO. CASES PAGE
DOMESTIC CASES
1. Ambalal Sarabhai Enterprise Ltd. v. K. S. Infraspace LLP Ltd. & Anr, 11
(2020) 15 SCC 585.
2. Anant Prakash Sinha v. State of Haryana, (2016) 6 SCC 105. 14
3. Anthony, In re, AIR 1960 Mad 308. 3, 5
4. Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1. 3, 6, 7
5. Arjan Ram Naurata Ram v. State, 1960 Cri LJ 849. 5
6. Ashok Kumar Chaudhary & Ors, v. State of Bihar, (2008) 12 SCC 173. 11
7. Aslam v. State of UP, (2014) 13 SCC 350. 10
8. Bablu Mubarik Hussain v. State of Rajasthan, (2006) 13 SCC 116. 12
9. Basdev v. State of Pepsu, AIR 1956 SC 488. 12
10. Bhimrao Harnooji Wanjari v. State of Maharashtra, 1975 Mah LJ 660. 5
11. Billo v. State (NCT) of Delhi, (2018) SCC OnLine Del 12745. 6, 9, 10
12. Bipul Medhi v. State of Assam, 2008 Cri LJ 1099. 7, 12, 15,
17, 18, 19
13. C. D. R. Kalesh Mohanan v. State, (2021) SCC OnLine Del 4078. 2
14. Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. 4, 7
15. Deonandan Mishra v. State of Bihar, AIR 1955 SC 801. 12
16. Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15. 15, 16
17. Dileep Singh v. State of Bihar, (2005) 1 SCC 88. 2, 4, 8
18. Emperor v. Soma, 36 IC 851. 4
19. Gopal Oyan v. State of Madhya Pradesh, M.Cr.C. No. 37322/2021. 3
20. Gopi Shanker v. State of Rajasthan, 1967 Cri LJ 922. 5
21. Hari Majhi v. The State, 1990 Cri LJ 650. 7, 17
22. Harshvardhan Yadav v. State of UP, (2021) SCC OnLine All 500. 7
23. Jasvinder Saini & Ors. v. State (Govt. of NCT of Delhi), (2013) 7 SCC 14
256.
24. Jayanti Rani Panda v. State & Anr, 1984 Cri LJ 1535. 1, 3, 7, 8
iv
25. Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) and Ors., 1
(2019) 1 SCC 1.
26. Kaini Rajan v. State of Kerala, (2013) 9 SCC 113. 1
27. Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518. 19
28. Minerva Mills v. Union of India, 1980 AIR 1789. 18
29. Mohd. Manir v. State of Bihar, (1994) 2 BLJR 1433. 10
30. Moran Chandra Paul v. State of Tripura, (1996) 2 GLR 15. 7, 17
31. Munshi v. State of UP, (2008) 9 SCC 390. 7
32. N. Jaladu, Re, (1913) ILR 36 Mad 453. 4
33. Parvat Singh & Ors. v. State of Madhya Pradesh, (2020) 4 SCC 33. 11
34. Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74. 10
35. Pradeep v. State of Bihar, (2007) 7 SCC 413. 13
36. Pramod Suryabhan Pawar v. State of Maharashtra & Ors., (2019) 9 SCC 3, 4, 5, 7
608.
37. Rajinder v. State of Himachal Pradesh, (2009) 16 SCC 69. 10
38. Ram Vilas & Ors. v. State of MP, 1985 Cri LJ 1773. 19
39. Ramachandran v. State of Kerala, 2022 (2) KLJ 380. 6, 9
40. Ramaswami Nadar v. State of Madras, AIR 1958 SC 56. 13
41. Rameshwar v. State of Rajasthan, 1951 SCC 1213. 12
42. Rao Harnarain Singh v. State of Punjab, AIR 1958 Punj. 123. 5, 6
43. RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572. 2
44. Saleha Khatoon v. State of Bihar, (1988) 36 BLJR 678. 4
45. Satendra Kumar Singh Kushwaha v. State of Bihar, 2003 Cri LJ 392. 10
46. Satishchandra Ratanlal Shah v. State of Gujarat, (2019) 9 SCC 148. 13
47. Satpal Singh v. State of Haryana, (2010) 8 SCC 714. 19
48. Satyapal v. State of Haryana, (2009) 6 SCC 635. 20
49. Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986. 12
50. State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575. 10
51. State of HP v. Gian Chand, (2001) 6 SCC 71. 10, 19
52. State of HP v. Prem Singh, (2009) 1 SCC 420. 20
53. State of HP v. Sanjay Kumar @ Sunny, (2017) 2 SCC 51. 19
54. State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384. 10, 19
v
55. Tukaram v. State of Maharashtra, (1979) 2 SCC 143. 6

56. Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590. 19
57. Uday v. State of Karnataka, (2003) 4 SCC 46. 4, 8
58. Velji Raghavji Patel v. State of Maharashtra, AIR 1965 SC 1433. 13
59. Vinod Kumar v. State of Kerala, (2014) 5 SCC 678. 4
60. Yedla Srinivasa Rao v. State of Andhra Pradesh, (2006) 11 SCC 615. 4
INTERNATIONAL CASES
61. Director of Public Prosecutions v. Beard, (1920) 2 All ER 479 (HL). 12
62. Glantz v. Gabel, 66 Mont. 134, 212. 3
63. Lervick v. White Top Cabs, La. App., 10 So.2d 67, 73. 3
64. New Jersey Mfrs' Casualty Ins. Co., 148 A. 790, 791, 106 N. J. L. 238. 3
65. People v. Kangiesser, 44 Cal. App. 345, 186 P. 3
66. People v. Perry, 26 Cal App 143. 3
67. R v. Hopkins, (1842) Car & M 254. 4
68. State v. Schwab, 143 N. E. 29. 1
69. Twin Ports Oil Co. v. Pure Oil Co., 26 F. Supp. 366. 3
STATUTES AND REGULATIONS

S. NO. STATUTE & REGULATIONS PAGE
1. Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India). 7
Criminal Law (Amendment) Act, 2013, § 9, No. 13, Acts of Parliament,

2. 3
2013 (India).
3. Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India). 4
4. Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India). 1
Information Technology Act, 2000, No. 21, Acts of Parliament, 2000

5. 11
(India).
vi
BOOKS
S. NO. BOOKS
1. 2 BATUK LAL, BATUK LAL’S COMMENTARY ON THE INDIAN PENAL CODE 1860 (Thomson
Reuters 2016).
2. 2 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (Justice KT Thomas & MA Rashid
ed., LexisNexis 2016).
3. CK TAKWANI, CRIMINAL PROCEDURE (Lexis Nexis 2014).
4. RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE (LexisNexis 2013).
5. RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE (K Kannan & Anjana Prakash ed.,
LexisNexis 2016).
6. RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE (LexisNexis 2021).
REPORTS
S. NO. REPORTS PAGE
84th Law Commission Report, Rape and allied offenses-some questions of

1.
3
substantive law, procedure and evidence, (March 27, 1980).
JUSTICE JS VERMA COMMITTEE, Report of the Committee on

2. 6
Amendments to Criminal Law, (January 2013).
ARTICLES
S. NO. ARTICLES PAGE

Arushi Garg, Consent, Conjugality and Crime: Hegemonic Constructions of
1. Rape Laws in India, 28, SOC. LEG. STUD. (2018). 3, 4
vii
Jack Vidler, Ostensible Consent and the Limits of Sexual Autonomy, 17.
2. 2, 3, 18
MQLAWJL 103, (2017).
Nora Scheidegger, Balancing Sexual Autonomy, Responsibility, and the Right
3. to Privacy: Principles for Criminalizing Sex by Deception, 22. GER. LAW. J. 3
(2021).
ONLINE SOURCES
S. NO. ONLINE SOURCES PAGE
Ridhi Arora, Alteration of Charges: Enabling Justice, CRIMINAL LAW

1. RESEARCH AND REVIEW (Mar. 20, 2023, 16:54 PM), 14
https://crlreview.in/2020/06/25/alteration-of-charges-enabling-justice/.
Rishita Khandelwal, The Real Effect of Rape by False Promise to Marry,

NUSRL Criminal Law Blog (Mar. 20, 2023, 16:54 PM)
2.
3
https://cclnusrl.wordpress.com/2022/12/13/the-real-effect-of-rape-by-false-
promise-to-marry-rishita-khandelwal/.
DICTIONARIES
S. NO. DICTIONARIES PAGE
1. Black’s Law Dictionary (6th ed. 1990). 1, 2, 3
2. Jowitt’s Dictionary on English Law (2nd ed. 1977). 3
3. Stroud’s Judicial Dictionary (5th ed. 1991). 3
4. Words & Phrases (Permanent Edition, Vol. 8-A). 3
DATABASES
S. NO. DATABASES
1. www.epw.in
2. www.jstor.org
viii
3. www.manupatra.com
4. www.scconline.com
5. www.westlawindia.com
ix
STATEMENT OF JURISDICTION
The Hon’ble Court has the jurisdiction to adjudicate upon the present matter under Section 177
r/w Section 193 and Section 209, r/w Schedule I of the Code of Criminal Procedure, 1973.
x
STATEMENT OF FACTS
EVENTS LEADING TO THE INCIDENT
Tina and Samarth, citizens of Telhi, came to know each other while pursuing LLM at the
University of Telhi in 2015. Over time, their friendship developed into a romantic relationship,
and they shared private moments and went on trips. As they resided with their respective
families who also became acquainted with each other and met on special occasions. Tina had
communicated her concern to Samarth that she wants to enter into a sexual relationship only
after the solemnisation of their marriage and the same was dismissed by Samarth by saying
that they were already in a close relationship and marriage being uncertain, there was no need
to enter into a ‘formal relationship.’ To celebrate their graduation after a year, they decided to
check in to YO YO Hotel on 27th June 2016.
THE IMPUGNED NIGHT OF 27TH JUNE 2016
On the night of 27th June, Tina and Samarth consumed liquor and subsequently, Samarth held
hands of Tina and had forcible sexual intercourse with her. At Tina’s objection, Samarth said
that he already treats her like his wife and to quote him, “Don’t worry we will marry soon.”
Tina was unhappy with this, but she submitted and resigned to the sexual intercourse, accepting
and relying on Samarth’s promise that he will marry her.
AFTER THE NIGHT
On 28th June 2016 i.e., the subsequent day, they checked out. Tina was feeling devastated after
the events of the previous night, she communicated the same to Samarth over WhatsApp.
Samarth apologised for the same and swore that he loves her and would marry only her. She
asked Samarth whether he was firm upon his promise to marry her. After Samarth solidified
and reaffirmed his promise regarding marriage, Tina ended the conversation that she trusts him
and consequently, she felt better.
Thereafter, they became sexually active with each other. Tina relying on the fact that they
would marry gave her consent to all subsequent acts. They had a fight over Samarth holding
the hands of a girl in a conspicuous restaurant in Central Telhi. Meanwhile, their families met
to discuss the possibility of roka ceremony on 1st December 2016. Within 10 days of the same,
Samarth called Tina and said that he was done with her suspicions and that because of her
‘doubtful behaviour,’ he wanted to end things. Upon realising in hindsight that Samarth never
xi
intended to marry, Tina was shocked and appalled. The realisation that Samarth had raped her
and had continuous sexual intercourse with her based on a promise that he never meant to fulfil
since the inception led her to the conclusion that her consent was induced through deception,
fraud, and coercion. She blocked him on all social media platforms.
FIR & FRAMING THE CHARGES
After a period of 14 days during which Samarth did not contact her even once, she proceeded
to file an FIR bearing no. 411/2016 before the Police Station Telhi Central. Thereafter, she was
examined at the TIMS Hospital and her statement was recorded under Section 161 before the
Investigating Officer and Section 164 of CrPC before the Jurisdictional Magistrate. After the
conclusion of the investigation, a chargesheet was filed before the Sessions Court under Section
173 of CrPC and Samarth was called before the police officer to cooperate with the
investigation under Section 41A. On 3rd February 2017, the Sessions Court framed charges
under Section 406 and Section 376 of IPC. The Court observed that it is prima facie a case fit
for trial.
It is to be noted that all the laws of Telhi are pari materia with the laws of the NCT of Delhi.
Further, all the facts given in the moot proposition are ‘undisputed facts.’
xii
ISSUES RAISED
-I-
WHETHER THE ACCUSED IS GUILTY OF RAPE ON “FALSE PRETEXT OF

MARRIAGE” UNDER SECTION 376 OF THE INDIAN PENAL CODE?
-II-
WHETHER THE DEFENDANT IS GUILTY OF CRIMINAL BREACH OF TRUST UNDER

SECTION 406 OF THE INDIAN PENAL CODE?
-III-
WHETHER THERE ARE ANY DISCREPANCIES IN THE FIR?
xiii
SUMMARY OF ARGUMENTS
I. THE ACCUSED IS GUILTY OF RAPE ON “FALSE PRETEXT OF MARRIAGE”.
It is submitted before this Hon’ble Court that the accused, Samarth is liable for rape under
Section 376(2) as the consent of sexual intercourse with the prosecutrix was affected by the
misconception of fact. The accused, from the very inception, had no intention of marriage. He
made a false representation to Tina, who relied on the same for her consent. Moreover, the acts
of the accused do not attract the defence of intoxication. There was no consent from the
prosecutrix to engage in sexual intercourse and hence Samarth committed rape, fulfilling all
conditions of section 375 of the IPC.
II. THE ACCUSED IS NOT GUILTY OF CRIMINAL BREACH OF TRUST
It is submitted that the charge of Criminal Breach of Trust under Section 406 framed by the
Hon’ble Court is defective and not applicable in this case. The scope of Section 406 is limited
to the entrustment of property or dominion over property. However, the charges can be framed
under Section 417 of the IPC, which has wider scope when compared to Section 406 and all
essentials of Section 417 are also met by the present set of facts. Therefore, as it is well within
the powers of the Hon’ble court to alter the charge any time before the pronouncement of the
judgement under Section 216 of CrPC, a plea to alter the charge of Criminal Breach of Trust
to the charge of cheating is submitted.
III. THERE ARE NO DISCREPANCIES IN THE FIR.
It is submitted that there are no major discrepancies in the FIR that can overthrow the
prosecutrix’s version of this case. The consent of the prosecutrix is vitiated by fraud and
cheating, as mentioned in the FIR and the same are tenable. Further, there is no inordinate and
unexplained delay in lodging of FIR and the same cannot be a material reason for the refusal
to accept the contents and grounds of FIR. Therefore, the prosecution submits that the consent
of the prosecutrix is vitiated by fraud, coercion and cheating and the grounds under FIR are
maintainable.
xiv
PLEADINGS
1. THE ACCUSED IS GUILTY OF RAPE ON “FALSE PRETEXT OF MARRIAGE.”
1) The prerequisite to attract the penal section for rape1 is that there must be sexual intercourse
between the parties.2 It is not under dispute that both parties had sexual intercourse on 27th June
2016 and during the period from June 2016 to December 2016.34 Further, Section 375 lays
down the seven descriptions5 which list the circumstances under which a man is said to commit
the offence of rape.6
2) It is submitted that the sexual intercourse on 27th June 2016 (hereinafter, referred to as
‘impugned night’) and all the following sexual activities, were ‘against her will’ [1.1] and
‘without her consent’ [1.2], as her consent stands vitiated when examined under the Two-
Pronged Test7 [1.3]. All the evidence relied on by the Prosecution is admissible in the court of
law [1.4]. Further, the defence of intoxication is not available to accused under the present set
of facts [1.5].
1.1 THE SEXUAL INTERCOURSE WAS ‘AGAINST HER WILL’
3) Will is defined as wish, desire, pleasure, inclination, choice, the faculty of consciousness, and
especially of deliberate action.8 Under the first description9 ‘against her will’ would ordinarily
mean that the intercourse was done by a man with a woman despite her resistance and
opposition.10 Since will is an internal mental element which dictates one’s actions to be free
and voluntary11, the same must be inferred from the context, environment and the subsequent
conduct of the parties involved.12
4) The sexual intercourse was done against the will of Tina as despite her resistance, Samarth
continued forcing her by holding her hands for the said act.13 Where there is no voluntary
participation and active resistance by the prosecutrix in the sexual act, the case falls
1
Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament, 1860 (India) [hereinafter IPC].
2
Id, § 375.
3
IPC, supra note 1, § 375.
4
Moot Proposition, ¶ 2.
5
6
Kaini Rajan v. State of Kerala, (2013) 9 SCC 113, at ¶ 12.
7
Jayanti Rani Panda v. State & Anr., 1984 Cri LJ 1535, at ¶ 7 [hereinafter Jayanti Rani].
8
Will, Black’s Law Dictionary (6th ed. 1990).
9
10
RATANLAL AND DHIRAJLAL, INDIAN PENAL CODE 869 (Lexis Nexis 2014).
11
RAM JETHMALANI & D.S. CHOPRA, THE INDIAN PENAL CODE 1576 (Thomas Reuters 2014).
12
State v. Schwab, 143 N. E. 29.
13
1
appropriately in clause first of Section 375.14 The fact that she had communicated her non-
willingness verbally and while being ‘unhappy with the act’ had submitted to the same,
indicates a clear lack of willingness on her part.
5) Merely by virtue of being an educated lady, she does not become immune from being cheated.15
Further, that she readily consumed alcohol and voluntarily decided to stay with a man, with
whom she shared an intimate romantic relationship for more than a year, does not necessarily
imply anticipation of sexual intercourse on her part. Any imputation to the contrary would be
a promotion of conservative patriarchal norms.
6) Sexual autonomy entails the right to choose with whom we have sexual contact and when 16,
and this autonomy stands even when a woman shares an intimate relationship with a man.17
The parties had previously shared intimate moments too and given the prosecutrix’s firm
resolution of not having sexual intercourse before her marriage, it is safe to assume that she did
not nurse a willingness for sexual intercourse while checking in at the hotel. Therefore, it is
submitted that the prosecutrix was not willing to the intercourse and despite it, the accused
committed the act, and hence the sexual intercourse on the impugned night was against her
will.
1.2 THE SEXUAL INTERCOURSE WAS ‘WITHOUT HER CONSENT’
7) With regards to the second criterion, it is submitted that on the impugned night, the sexual
intercourse was both, against the prosecutrix’s will and without her consent. Thereafter, all
sexual activities between June 2016 and December 2016 were without her consent as her
consent was vitiated due to being based on misconception of facts [1.2.1]. Further, it is also
submitted that the absence of physical injuries does not hamper the case of prosecution as there
exists a distinction between submission and consent [1.2.2]. Lastly, the burden of proof in the
current set of facts lies on the defendant as Section 114A of the IEA will be attracted [1.2.3].
1.2.1 Consent was based on ‘misconception of fact.’
14
Deelip Singh v. State of Bihar, (2005) 1 SCC 88, at ¶ 14 [hereinafter Dileep Singh].
15
C. D. R. Kalesh Mohanan v. State, (2021) SCC OnLine Del 4078.
16
Jack Vidler, Ostensible Consent and the Limits of Sexual Autonomy, 17. MQLAWJL 103, (2017).
17
RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572.
2
8) Consent is the antithesis of rape.18 It is an act of reason accompanied with deliberation. 19 The
mind must weigh, as in a balance, the good or evil on either side.20 It means a voluntary
agreement by a person in the possession and exercise of sufficient mentality to make an
intelligent choice21 to do something proposed by another.22 It supposes a physical power to act,
a moral power of acting, and a serious, determined, and free use of these powers.23 24
9) An affirmative definition of consent has been supplied through Explanation 2 of Section 375
as added by the Criminal Law Amendment Act, 2013.25 Consent means an unequivocal
voluntary agreement by words, gestures, or any form of verbal or non-verbal communication.
It is to be understood as a communication of willingness.26 When consent is given under
misconception of material facts, it leads to vitiation of consent and violation of sexual
autonomy.27 28
10) In the present set of facts, the sexual intercourse on the impugned night and all other nights
were based on the misconception of material fact around the nature of their relationship and
the same clouded the mental faculties of the victim. Hence, the same cannot be regarded as
unequivocal and voluntary consent, and thus, is no consent as per Section 375.
11) Further, the courts have consistently relied upon the negative connotation of consent under
Section 9029 to decide upon the cases involving rape on the false pretext of marriage, and the
same has been relied upon as relevant even after the introduction of the 2013 Amendment
Act.30 Section 90 reads- “consent given under a misconception of fact is no consent at all.”31
18
84th Law Commission Report, Rape and allied offenses-some questions of substantive law, procedure, and
evidence, (March 27,1980).
19
Consent, Jowitt’s Dictionary on English Law (2nd ed. 1977); Consent, Stroud’s Judicial Dictionary (5th ed.
1991).
20
Gopal Oyan v. State of Madhya Pradesh, M.Cr.C. No. 37322/2021.
21
Consent, Words & Phrases (Permanent Edition, Vol. 8-A).
22
People v. Perry, 26 Cal App 143.
23
Consent, Black’s Law Dictionary (6th ed. 1990).
24
Anthony, In re AIR 1960 Mad 308; Twin Ports Oil Co. v. Pure Oil Co., 26 F. Supp. 366; Glantz v. Gabel, 66
Mont. 134, 212; Lervick v. White Top Cabs, La. App., 10 So.2d 67, 73; People v. Kangiesser, 44 Cal. App. 345,
186 P; New Jersey Mfrs' Casualty Ins. Co., 148 A. 790, 791, 106 N. J. L. 238.
25
Criminal Law (Amendment) Act, 2013, § 9, No. 13, Acts of Parliament, 2013 (India).
26
IPC, § 375 Explanation 2.
27
Jack Vidler, Ostensible Consent and the Limits of Sexual Autonomy, 17. MQLAWJL 103, (2017); Nora
Scheidegger, Balancing Sexual Autonomy, Responsibility, and the Right to Privacy: Principles for Criminalizing
Sex by Deception, 22. GER. LAW. J. (2021).
28
Rishita Khandelwal, The Real Effect of Rape by False Promise to Marry, NUSRL CRIMINAL LAW BLOG (Mar.
20, 2023, 16:54 PM) https://cclnusrl.wordpress.com/2022/12/13/the-real-effect-of-rape-by-false-promise-to-
marry-rishita-khandelwal/.
29
JAYANTI RANI, supra note 7, at ¶ 7; Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1, at ¶ 7 [hereinafter
Anurag Soni]; Pramod Suryabhan Pawar v. State of Maharashtra & Ors. (2019) 9 SCC 608 [hereinafter Pramod
Suryabhan].
30
Arushi Garg, Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India, 28, SOC.
LEG. STUD. (2018).
31
3
12) Misconception has a wide ambit.32 It is to be noted that promise or intention of a person is also
treated as a fact,33 and thus, when a false promise to marry is being made, it amounts to
misrepresentation of facts.34 The impact of such misrepresentation is to be considered to
properly evaluate the subjective implication in each case.35 Here, this misrepresentation of facts
by the accused created a misconception in her mind as to his intention to marry her.36
13) Section 90 examines the factors from the point of view of both the accused and the victim.37
The court has to see whether the person giving the consent had given it under fear of injury or
misconception of fact and the court should also have to be satisfied that the person doing the
act i.e., the alleged offender, is conscious of the fact or should have reason to think that but for
the fear or misconception, the consent would not have been given.38 An act of sexual
intercourse with consent of the nature which is based on deception and fraud, cannot be termed,
prima facie, to be meaning that the act was with consent, and thus such cases will always be
deemed to be without consent.39
14) In the instant case, consent of the woman was based on the promise given by the accused as
evident from her submission as an acceptance of his promise40 and her response of breaking
off all communication with the accused as soon as she became aware of such
misrepresentation.41 There was the existence of a “but for” correlation between the victim’s
misconception and her consent. 42
15) The accused was aware that he had obtained her consent through misconception and relied on
the same for his sexual gratification as evident from the fact that after being reluctant for
marriage initially, he made the promise for the very first time when he saw the scope of
immediate sexual gratification. It was a direct result of his affirmations of promise43 that they
indulged in sexual activities for 6 months. Thus, both the conditions for vitiation of consent
32
DILEEP SINGH, supra note 14, at ¶ 20; N. Jaladu, Re, (1913) ILR 36 Mad 453; Pradeep v. State of Bihar, (2007)
7 SCC 413; Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, at ¶ 20 [hereinafter Deepak Gulati].
33
Indian Evidence Act, 1872, § 3, No. 1, Acts of Parliament, 1872 (India) [hereinafter Evidence Act].
34
R v. Hopkins, (1842) Car & M 254.
35
Omar Madhloom, Deception, Mistake and Non-disclosure: Challenging the Current Approach to Protecting
Sexual Autonomy 70, NILQ (2016).
36
Emperor v. Soma, 36 IC 851.
37
Uday v. State of Karnataka, (2003) 4 SCC 46, at ¶ 26 [hereinafter Uday]; DILEEP SINGH, supra note 14, at ¶ 20;
Saleha Khatoon v. State of Bihar, 1989 Cri LJ 202.
38
DILEEP SINGH, supra note 14, at ¶ 20; Vinod Kumar v. State of Kerala, (2014) 5 SCC 678.
39
Saleha Khatoon v. State of Bihar, 1989 Cri LJ 202; Yedla Srinivasa Rao v. State of Andhra Pradesh, (2006) 11
SCC 615, at ¶ 8 [hereinafter Yedla Srinivasa]; PRAMOD SURYABHAN, supra note 29.
40
41
42
Arushi Garg, Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India, 28, SOC.
LEG. STUD. (2018).
43
4
under Section 90 have been met. Therefore, it is submitted that in the present case, the sexual
intercourse committed with false pretext of marriage amounts to rape as there was no consent.
1.2.2 Absence of Physical Injuries does not amount to consent.

16) Consent with respect to Section 375 of IPC involves an active understanding of the
circumstances, actions, and consequences of the proposed act.44 A mere act of helpless
resignation in the face of inevitable compulsion, quiescence, non-resistance, and passive giving
in when volitional faculty is vitiated by misconception of facts cannot be deemed to be consent
as understood in law.45
17) The Medico-Legal Report shows no physical injuries objectively.46 The examination has been
conducted on 25th December 2016, which is approximately 6 months from the date of the first
forcible intercourse. Following this, all the sexual activities have received no physical
resistance even though the mental element of consent is not present. In these circumstances, it
is obvious that a medical examination conducted would not avail any imminent marks of injury
or vaginal swelling as could be seen in examinations immediately following such sexual
intercourse.
18) On the impugned night, when Samarth had forcible intercourse with Tina, she was in an
emotionally vulnerable state due to intoxication and Samarth’s allurements 47 exerted
psychological pressure on her. Tina’s state of mind did not provide her with the mental faculty
required for forming consent and making a reasoned choice. Furthermore, Samarth had held
her hands she was not in a position to actively resist his advances as she shared an intimate
relationship with him for over a year. So, Tina while unhappy with this act, accepted her fate
and resigned to the act. It is submitted that this was a case of passive submission exerted in the
face of psychological pressure and allurements made by the accused.48 Therefore, there was no
consent at all.
1.2.3 Burden of Proof

19) In the infamous Mathura rape case49, after two policemen were acquitted of the crime of
heinously raping a girl, a huge uproar led the legislature to intervene and introduce Section
44
PRAMOD SURYABHAN, supra note 29.
45
Rao Harnarain Singh v. State of Punjab, AIR 1958 Punj. 123 [hereinafter Rao Harnarain]; Anthony, In re, 1960
Cri LJ 927; Arjan Ram Naurata Ram v. State, 1960 Cri LJ 849; Gopi Shanker v. State of Rajasthan, 1967 Cri LJ
922; Bhimrao Harnooji Wanjari v. State of Maharashtra, 1975 Mah LJ 660.
46
Moot Proposition, Annexure 2.
47
48
RAO HARNARAIN, supra note 44.
49
Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
5
114A in the Evidence Act.50 According to Section 114A, if the sexual intercourse is proved to
have been committed and the prosecutrix states in her evidence before the court that she did
not consent, then the court shall presume that she did not consent. This section applies where
the offence alleged is rape of an aggravated nature which is listed under Section 376(2) clauses
(a) to (n) of IPC, and the imprisonment invited by the same shall not be less than 10 years.51
20) Section 376(2)(f) deals with punishment under circumstances where a person in a position of
trust towards a woman commits rape on such woman.52 Further, Section 376(2)(n) deals with
punishment under circumstances where the accused commits rape repeatedly on the same
woman.53 When the sexual intercourse amounting to rape in the nature of Section 376(2)(f) and
Section 376(2)(n) is proved to have been committed, and the prosecutrix states that she had not
consented to the same, the presumption under Section 114A of the IEA can be activated.54
21) It is submitted that Samarth was in a position of trust towards Tina as they had continually been
in a romantic relationship for a year. There was an expectation and firm belief on the part of
Tina that they would get married and spend their life together. Further, the sexual intercourse
under vitiated consent was committed multiple times during six months.
22) Tina has said55 that she did not give her consent for a physical relationship initially56, and
further, it has been argued that the consent subsequently given stands vitiated [1.2.1]. It is to
be remembered that the victim is not on trial, but the accused is.57 Further, the court must give
a decision considering the societal realities and proceed with equity in mind. It cannot be a
silent spectator and give license to men who are trying to exploit innocent girls and have sexual
intercourse with them on the pretext of a false promise of marriage.58
23) Hence, Section 114A of the IEA, 1872 squarely applies to the facts and circumstances of the
instant case and the Hon’ble Court shall act with the presumption that Tina had not given her
consent and the burden of proving the contrary lies with the defendant.59
1.3 ‘TWO-PRONGED TEST’ FOR RAPE ON FALSE PRETEXT OF MARRIAGE IS SATISFIED
50
JUSTICE JS VERMA COMMITTEE, Report of the Committee on Amendments to Criminal Law, 78 (January
2023).
51
THE EVIDENCE ACT, supra note 33, § 114A.
52
IPC, supra note 1, § 376(2)(f).
53
IPC, supra note 1, § 376(2)(n).
54
Billo v. State (NCT) of Delhi, (2018) SCC OnLine Del 12745; Ramachandran v. State of Kerala, 2022 (2) KLJ
380; ANURAG SONI, supra note 29, at ¶ 16.
55
The Code of Criminal Procedure, 1973, § 164, No. 2, Acts of Parliament, 1974 (India) [hereinafter CrPC].
56
57
Munshi v. State of UP, (2008) 9 SCC 390, at ¶ 7.
58
Harshvardhan Yadav v. State of UP, 2021 SCC OnLine All 500.
59
ANURAG SONI, supra note 29, at ¶ 14; YEDLA SRINIVASA, supra note 39, at ¶ 11.
6
24) The ‘two-pronged test’ evolved by the Calcutta High Court60 upheld and applied by the
Supreme Court in various cases61, says that firstly, there should be a false promise since
inception [1.3.1] and secondly, the victim’s consent should be caused due to the said promise
[1.3.2]. In other words, there has to be a causal link between tainted consent and false
promise.62
1.3.1 Samarth had no intention of fulfilling his promise since its inception.
25) There exists a distinction between a mere breach of promise and a false promise, wherein the
facts must be traced back to inception.63 The conduct of the accused and the flowing chain of
evidence have to be relied upon to confirm that the conduct of the accused has been dubious
since the beginning. As earlier he had clearly stated that Tina should not seek a “formal
relationship,” since they were already “very close” and their families know each other.64 Being
aware of her beliefs regarding solemnisation of marriage, the accused conveniently accepted
that he treats her like his wife and would marry her, just so that he could receive sexual
gratification and satisfy his lustful advances. Further, he reiterated the same promise to Tina
through WhatsApp chat65 to ensure the continuation of receipt of sexual gratification.
26) However, as soon as discussions of roka ceremony were being held, Samarth removed himself
from the situation with the excuse that he was ending things because of Tina’s “doubtful
nature.”66 If this had indeed been a hinderance for the accused, then he would not have accepted
presently that he is still desirous to marry the girl67 since there has been no resolution of the
above conflict and the contention regarding the ‘doubtful nature’ of the girl must still be
standing unresolved in the consideration of the accused.
27) Further, when Tina had blocked Samarth on all platforms, Samarth did not put any effort or
attempted to look for any other means of communication to convey to the girl that he was
willing to marry her and wanted to resolve the ongoing dispute.68 Therefore, it is sufficiently
clear from the inconsistency of the conduct of Samarth with the promises he made, that these
promises were in fact false since the inception and Samarth never meant to fulfil them.
60
JAYANTI RANI, supra note 7, at ¶ 7.
61
Moran Chandra Paul v. State of Tripura, (1996) 2 GLR 15 [hereinafter Moran]; Hari Majhi v. The State, 1990
Cri LJ 650; Bipul Medhi v. State of Assam, 2008 Cri LJ 1099 [hereinafter Bipul Medhi].
62
PRAMOD SURYABHAN PAWAR, supra note 29.
63
DEEPAK GULATI, supra note 18, at ¶ 18.
64
65
66
67
Moot Proposition, Annexure 4A.
68
7
1.3.2 There was an immediate nexus between consent and promise.

28) The second head of the Test is that the misrepresentation of fact or the false promise should be
at the roots of the consent given by the victim and that there be an immediate relevance between
the misrepresented facts and the consent given by the victim.69 Thus, there is a need to establish
a causal link between consent and the promise. There exists no straitjacket formula to discover
whether consent was based on misconception of facts and therefore, the relevant facts and
circumstances must be referred to.70
29) It is submitted that the nature and temperament of Tina were such that she would not have
agreed to have sexual intercourse before marriage.71 Further, she had insisted time and again
to Samarth that they shall get married before they indulged in any such activities. So, unless
Samarth had made the promise, Tina would not have consented to the sexual intercourse. On
the night of 27th June 2016, where she had verbally communicated her non- willingness and
had only submitted to sexual intercourse after receiving assurances and promise from Samarth
that he would marry her [1.1].
30) The sexual intercourse was agreed upon by Tina not on grounds of her love and passion for the
accused, but on account of the representation made to her by the accused. An act of love and
passion comes with happiness, whereas on the impugned night when the intercourse took place
and even after on 28th June, Tina was unhappy72. The fact that she relied on the accused's
representation is evident from the fact that she only came back to her normal self when the
accused reiterated his promise to her over WhatsApp chats. All the subsequent sexual
intercourse carried the same tainted consent on the behalf of Tina. It is also to be noted that as
soon as it was revealed to Tina that the promise was indeed false, she broke off all connections
and prosecuted the accused for the same.
31) In cases where the defendant has been acquitted, the victim’s love for the accused and the
promise of marriage have been treated as two mutually exclusive criteria for consent. This
approach has been criticized under several decisions where a relationship of trust was
subsisting between the parties.73 Section 90 requires that the consent should be given ‘in
consequence of’ the misconception, not that it be given ‘solely in consequence of’ the
misconception.74
69
UDAY, supra note 37, at ¶ 26.
70
UDAY, supra note 37, at ¶ 26; JAYANTI RANI, supra note 7, at ¶ 7; DILEEP SINGH, supra note 14, at ¶ 20.
71
72
73
Billo v. State (NCT) of Delhi, (2018) SCC OnLine Del 12745; Ramachandran v. State of Kerala, 2022 (2) KLJ
380.
74
8
32) To require that the consent be based exclusively on the promise of marriage is not justified
according to the text of Section 90 and is not required according to any other principle of
statutory interpretation or causation. Indeed, the prosecutrix was more likely to be convinced
about the sincerity of a promise of marriage as she had an ongoing romantic relationship from
the past year with the accused.
33) Even so, the fact that the victim was deeply troubled after the first incidence of sexual
intercourse and did not seem her usual “chirpy” self,75 and that she only recovered after the
accused reaffirmed his promise over WhatsApp clearly shows that she gave her consent solely
out of the misconception created by the accused, and not due to her love. Therefore, it is
submitted that the consent of the prosecutrix stands vitiated under section 90.
1.4 ADMISSIBILITY OF EVIDENCE
34) Evidence includes within its purview both oral evidence and documentary evidence.76 It is
submitted that all the oral evidence [1.4.1] and documentary evidence [1.4.2] relied upon by
the prosecution are admissible in a court of law. Further, the case of prosecution is based on a
chain of circumstantial evidence so concrete that a conviction may be based on the same [1.4.3].
1.4.1 Oral Evidence

35) It is submitted that all the witnesses relied upon by the Prosecution are competent to testify as
per the requirements of Section 118 of the IEA77. The prosecution will now analyse the
admissibility of each of the witnesses on whom the prosecution has relied.
36) PW 1 is Tina, the prosecutrix. Her statement has been recorded under Section 161, before the
Investigating Officer.78 Subsequently, her statement was recorded under Section 164,79 before
the Jurisdictional Magistrate,80 wherein she confirmed the contents of FIR No. 411/ 2016 at PS
Telhi Central. The statement under Section 161 stands corroborated by the Section 164
statement and the same has been regarded as having a substantive evidentiary value of its
own.81
75
Moot Proposition, Annexure 3B.
76
EVIDENCE ACT, supra note 33, § 3.
77
78
79
80
81
Mohd. Manir v. State of Bihar, (1994) 2 BLJR 1433.
9
37) It is not in dispute that PW 1 is reliable and trustworthy. The conviction of the accused can be
sustained on the sole testimony of the prosecutrix if it inspires confidence82 and there is no rule
of law that the evidence of the prosecutrix cannot be relied upon without corroboration.83
Further, the application of Section 114A of the IEA also adds greater credibility to her oral
evidence whereby she has taken the position that she had not given consent to sexual
intercourse on the impugned night and the court has to proceed with the same presumption
[1.2.3].
38) PW 2 is Rohit, the brother of Tina. His oral evidence has been recorded under Section 161,
before the investigating officer. He stands as a relative witness. Insofar as the question of
credibility of the evidence of relatives of the victim is concerned, it is well settled though the
Court has to scrutinize such evidence with greater care and caution, such evidence cannot be
discarded on the sole ground of their interest in the prosecution. The relationship per se does
not affect the credibility of a witness.84 Further, on the question of the statement being recorded
under Section 161, it is submitted that while not being relied on to convict Samarth, the
statement of PW2 serves to substantiate the statement of PW1, bring facts into perspective and
bring out contradictions in the statement of DW1.85 The permission of the Hon’ble court is,
therefore, sought in this regard to allow for the admission of the Section 161 statement of PW
2.
1.4.2 Documentary Evidence

39) It is submitted that Annexure 1, the WhatsApp conversation between Tina and Samarth dated
28th June 2016, is admissible documentary evidence under Sections 65A86 and Section 65B of
the IEA.87 It is accepted that the conversation falls under electronic record as defined under
Section 2(t) of the Information Technology Act, 2000.88 However, Section 65B(1)89 mentions
that any evidence contained in an electronic record that might be presented in printed, stored,
recorded or copied onto optical and magnetic media devices by a computer shall be considered
a document and if such information fulfils the conditions mentioned in Section 65 of the
82
State of HP v. Gian Chand, (2001) 6 SCC 71; Aslam v. State of UP, (2014) 13 SCC 350; Rajinder v. State of
Himachal Pradesh, (2009) 16 SCC 69; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384; Billo v. State (NCT)
of Delhi, (2018) SCC OnLine Del 12745.
83
State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575; Phool Singh v. State of Madhya Pradesh, 2020
SCC OnLine MP 658; Satendra Kumar Singh Kushwaha v. State of Bihar, 2003 Cri LJ 392.
84
Ashok Kumar Chaudhary & Ors, v. State of Bihar, (2008) 12 SCC 173.
85
Parvat Singh & Ors. v. State of Madhya Pradesh, (2020) 4 SCC 33.
86
EVIDENCE ACT, supra note 33, § 65A.
87
EVIDENCE ACT, supra note 33, § 65B.
88
Information Technology Act, 2000, § 2 (t), No. 21, Acts of Parliament, 2000 (India).
89
EVIDENCE ACT, supra note 33, § 65B(1).
10
Evidence Act, it shall be admissible in the Court of Law without further proof or production of
the original device. WhatsApp Chats are matters of evidence as they are virtual, verbal
communications, the meaning, and contents of which can be verified by evidence in chief and
cross-examination during trial.90
40) The prosecution submits a certificate following the guidelines of four requirements laid down
under Sections 65A and 65B and seeks the admission of the WhatsApp conversation as primary
evidence under Section 3.
1.4.3 Circumstantial Evidence

41) The evidence relied on to deduce the offence of rape is largely based on circumstances and
requires a closer review in order to reach the conclusion of cheating. However, the prosecution
submits that false pretence is not necessary to have been made in express words by the accused,
it may be inferred from the conduct of the accused as displayed in the set of facts. 91 The
corroboration need not be direct evidence but is sufficient if it is merely circumstantial
evidence.92 All the circumstances have to be reviewed in totality so as to reasonably infer that
an offence of rape is made out from the conduct of the accused.
42) Further, a conviction is possible on circumstantial evidence93 if it forms a chain of evidence so
complete as not to leave any reasonable doubt for a conclusion consistent with the innocence
of the accused.94 It is humbly submitted that the WhatsApp conversation, Medical Legal
Report, Prosecution Witness Statements and Defence Witness Statements form a chain of
evidence so complete that there remains no scope for the innocence of the accused.
43) Therefore, it is submitted that a conviction may be based on the circumstantial evidence
presented in the court of law.
1.5 DEFENCE OF INTOXICATION IS NOT ATTRACTED
44) Section 8595 and Section 8696 of IPC deal with the general defence of intoxication. It is a
mandate of both sections that the application of the thing that intoxicated him should have been
done without his knowledge or against his will.97 Further, both sections require that because of
90
Ambalal Sarabhai Enterprise Ltd. v. K. S. Infraspace LLP Ltd. & Anr, (2020) 15 SCC 585.
91
Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986.
92
Rameshwar v. State of Rajasthan, AIR 1952 SC 54.
93
BIPUL MEDHI, supra note 61; RAMESHWAR, supra note 92.
94
Deonandan Mishra v. State of Bihar, 1955 Cri LJ 1647; Harish Chandra Thange v. State of Maharashtra, AIR
2007 SC 2957.
95
96
97
Basdev v. State of Pepsu, 1956 AIR SC 488.
11
intoxication, the person should be incapable to understand the nature and consequences of his
action, or that what he is doing is either wrong or contrary to the law.98 Section 85 and Section
86 ipso facto do not apply to the present facts as consumption of liquor on the impugned night
was voluntary.
45) It is lastly submitted that the questions as regards to the validity of consent arise against the
entire series of sexual activities engaged by the victim under a false pretext of marriage from
June 2016 to December 2016. The defence of intoxication even if allowed for the impugned
night, cannot be extended to cover the scope of all the other incidents where the accused was
sober. Hence, the prosecution submits that the defence of intoxication is prima facie not
allowable in the present set of circumstances.
2. THE ACCUSED IS NOT GUILTY OF CRIMINAL BREACH OF TRUST.
46) The Sessions Court has framed charges under Section 406 and Section 376 of IPC while
observing that consent of Tina was induced through cheating and coercion. It is submitted that
the charge framed under Section 406 is not relevant in the instant case [2.1]. The prosecution
seeks alteration of the same to Section 417 of the Indian Penal Code 99 through the exercise of
Section 216 of the CrPC [2.2].100 The rationale behind seeking the modification of charges is
sound on substantive [2.2.1] and procedural grounds [2.2.2], the charge of Cheating under
section 417 is more appropriate, and its essential elements when applied to the present set of
facts are satisfied [2.4].
2.1 CHARGE OF SECTION 406 IS NOT APPROPRIATE
47) Section 406 pertains to punishment for criminal breach of trust, which has been defined under
Section 405 of the Act. It falls under chapter XVII of the IPC, which in turn relates to ‘Offences
Against Property’. The scope of Section 405, therefore, is limited only to the entrustment of
property or dominion over the property by a person who misappropriates or converts the
property to his use, or who dishonestly uses or disposes of that property in violation of any
direction of law or contract concerning discharge of the trust, from which he is bound.101
48) In other words, the section foresees a situation where property belonging to someone is
entrusted to the person accused of the offence under Section 405. The same was observed by
98
Director of Public Prosecutions v. Beard, (1920) 2 All ER 479 (HL); Bablu Mubarik Hussain v. State of
Rajasthan, (2006) 13 SCC 116.
99
100
CRPC, supra note 55, § 216.
101
12
the court in Pradeep v. State of Bihar, where charges were framed against the accused under
Section 406 and Section 376, the Apex Court remarked that Section 406 has no relevance in
cases involving rape on the false pretext of marriage.102
49) The word entrustment in the section is particularly important, and unless there is an
entrustment, there can be no offence under the said section.103 In the present case, there was
no involvement of any entrustment or dominion over any property in any manner whatsoever,
and in fact, there is no mention of any property or any transaction relating thereto between the
parties, in the Moot Proposition at all.104
50) Therefore, the charge of Criminal Breach of Trust is not attracted and the same shall be altered
by the exercise of the Hon’ble Court’s power under Section 216 of CrPC, to a charge of
Cheating under section 417.
2.2 PLEA FOR ALTERATION OF CHARGES IS MAINTAINABLE
51) The prosecution seeks alteration of the charges from Section 406 of IPC to Section 417 of the
IPC105 through the exercise of Section 216 of the CrPC.106 The rationale behind seeking the
modification of charges is sound on substantive [2.2.1] and procedural grounds [2.2.2].
2.2.1 Essentials of Section 216(1) are met.

52) Under Section 216(1) of the Code of Criminal Procedure, the court can exercise its power and
alter the charges when it finds that the charge already framed is defective for any reason or
because such addition is considered necessary after the commencement of trial, having regard
to the evidence produced before the court.107 However, it can be seen that the court has the
power to allow such alterations, even if no new evidence has been introduced to the court. 108
This power has been vested in the court to avoid the possibility of miscarriage of justice and to
provide flexibility such that the court is not bound to proceed with the charges framed initially
when another charge fits more appropriately given the circumstances.109
102
Pradeep v. State of Bihar, (2007) 7 SCC 413.
103
Velji Raghavji Patel v. State of Maharashtra, AIR 1965 SC 1433; Satishchandra Ratanlal Shah v. State of
Gujarat, (2019) 9 SCC 148; Ramaswami Nadar v. State of Madras, AIR 1958 SC 56.
104
Moot Proposition.
105
106
CRPC, supra note 55, § 216.
107
Jasvinder Saini & Ors. v. State (Govt. of NCT of Delhi), (2013) 7 SCC 256.
108
Anant Prakash Sinha v. State of Haryana, (2016) 6 SCC 105.
109
Ridhi Arora, Alteration of Charges: Enabling Justice, CRIMINAL LAW RESEARCH AND REVIEW (Mar.
20, 2023, 16:54 PM), https://crlreview.in/2020/06/25/alteration-of-charges-enabling-justice/.
13
53) Therefore, it is submitted that a primary reading of the current facts invites the application of
Section 216 of the CrPC, to alter the charge under section 406 and the counsel requests the
court to exercise its powers and apply the same.
2.2.2 Essentials of Section 216 (2) to (5) are met.

54) The procedure to be followed once the court decides to alter or add any charge is dealt with
under Section 216, sub-section (2) to (5). It is humbly submitted that the plea for alteration is
allowable under Section 216(3). As Section 406 is a cognizable and non-bailable offence,
whereas Section 417 is a non-cognizable and bailable offence.110 Further, the maximum
imprisonment laid down in Section 406 is a term which may extend to 3 years or with fine or
with both, whereas the maximum imprisonment envisioned in Section 417 can extend for a
term of 1 year or with fine or with both.
55) Therefore, it is argued that the offence of cheating under Section 417 is of a nature inviting less
severity than that of the original charges framed by the Trial Court, and proceeding
immediately with the trial is not likely to prejudice the accused in his defence and prosecution
in the conduct of the case. Thus, the requirements of Section 216(3) are met.
56) Further, the alteration does not vitiate Section 216(4) of CrPC as the alteration not being likely
to prejudice the accused or the prosecutrix in the conduct of the trial, there is no need for the
court to either direct a new trial or adjourn the current one. Therefore, it is submitted the court
may proceed with the trial as if the modified charge had been the original charge, as the same
does not influence the jurisdiction of the court as the Hon’ble court has the authority to try both
cases before it.
2.3 THE ACCUSED IS GUILTY OF CHEATING
57) Although Section 415 also falls under chapter XVII of the IPC, relating to ‘Offences Against
Property’ the proposition that cheating must be in respect of property only does not appear to
be a correct interpretation of law.111 The charge of cheating as defined under Section 415 has
a wider coverage and allows for cases concerning the delivery of property as well as the
intentional deception of someone into committing an act or omission which they would not
have done, if not for such deception.
58) Making a close reading of the section it can be deconstructed into the following three parts112:
A. Part one talks about deception of the person.
110
CRPC, supra note 55, Sch. I.
111
BIPUL MEDHI, supra note 61.
112
Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15.
14
B. Part two talks about the classes of acts in which a person is fraudulently or dishonestly
deceived so as to induce him to deliver property.
C. Part three talks about cases where a person intentionally induces another to do or omit
to do anything, which he would not have done except for such inducement; and,
As a result, he suffered harm to his body, mind, reputation, and property.
59) If the scope of the section was only limited to offence against property, then only the first and
second parts would have been included in the Section. The presence of the third part indicates
the legislative intent to broaden the scope of the section to cover acts of intentional inducement
of an act or omission that a person would not otherwise do or omit but for such inducement.
60) The second and third parts are alternatives to each other and are capable of independent
activation, as evident by the use of the disjunctive conjunction “or.”113 Therefore, the definition
of offence has a wide scope to cover both classes of offences- firstly, those concerning transfer
and delivery of property. And secondly, those in which no such transfer or delivery is
occasioned by deception. It is concluded that thus, deception is the quintessence of the offence
defined under Section 415, rather than transfer or delivery of property.114
61) In contrast, Section 420 deals with classes of cases where cheating is in relation to the transfer
or delivery of property exclusively.115 It is submitted that the current set of facts pertains to the
latter part of Section 415, and it can be independently applied, regardless of absence of
transaction relating to property.
62) Further, the section ends with the use of the conjunction “and” joining the class of impugned
acts listed with their consequence being “harm to body, mind, property and reputation” and
makes the section's scope extend to covering offences of body, mind, property and reputation.
63) The prima facie applicability of the section having been shown, the elements of the section will
now be taken up and corroborated with evidence that there indeed was an ingredient of
deception [2.3.1], the deception was intentional [2.3.2], which led the prosecutrix to commit
‘an act or omission that she would not have done otherwise’ [2.3.3], and this led to her suffering
damage and harm to her body, mind and reputation [2.3.4].
2.3.1 There was an act of deception by the accused

64) Deception means causing one to believe what is false, misleading as to a matter of fact, or
leading into error.116 In cases concerning deception, it has to be proved that the representation
113
Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15.
114
Id.
115
116
RATANLAL AND DHIRAJLAL, INDIAN PENAL CODE 1042 (Lexis Nexis 2014).
15
was false and was made in order to deceive the complainant. There is an underlying thread of
deception in the instant case.
65) When the matter of sexual intercourse and marriage was first discussed, while rejecting Tina’s
inhibitions about sexual intercourse before marriage, Samarth had said that since they were
already very close to each other, she should not insist on a formal relationship.117 He was very
vague about his intentions to enter into a marital relationship.
66) The promise for marriage was ultimately made on the impugned night when Samarth knew that
there was a possibility of sexual gratification in exchange for his promise. Hence, Samarth in
order to deceive her and to make her consent to the sexual relationship, said, “Tina, you are
mine and I already treat you like a wife. Don’t panic, we will marry soon.”118
67) This act of deception was further repeated the next night when they had a conversation on
WhatsApp119, where Samarth reaffirmed Tina his intentions to marry her. This reaffirmation
was also based on deceptive grounds, so as to continue receiving sexual gratification from Tina.
This clearly shows that Samarth had deceived Tina from the beginning as he backed off as soon
as it was required of him to convert his intentions into reality.
68) Presently, Samarth conveniently claims that he is intends to marry Tina.120 But the same stands
contradicted by his actions. There was a gap of 14 days between the phone call and the date
when the FIR had been filed, there is no record of any effort being made on the part of Samarth
to reconcile things- he did not show any efforts to contact Tina or mend the relationship, aside
from the social media platforms where she had blocked him. They lived in the same city and
had he wanted to reconcile things he could have gone to Tina’s home. Based on the above facts,
it is submitted that there was an act of deception by Samarth by giving false promise to the
victim for sexual gratification.
2.3.2 The deception by accused was intentional.

69) The intention to deceive should have been present since the inception. 121 Intention is regarded
as the highest manifestation of mens rea for the commission of a criminal act. Intention is desire
backed by knowledge. Despite knowing that Tina was unwilling to have sexual relations before
the solemnisation of marriage, Samarth insisted upon and forcefully had sexual intercourse
with her.122 There was desire on part of the accused to have sexual intercourse and the
117
118
119
Moot Proposition, Annexure 1; Moot Proposition Clarifications, ¶ 15.
120
121
BIPUL MEDHI, supra note 61; Hari Majhi v. The State, 1990 Cri LJ 650; MORAN, supra note 61.
122
16
knowledge that the victim would not consent to the same without solemnisation of marriage.
Therefore, it is submitted that Samarth had intention to cheat Tina and have sexual intercourse
with her on the false pretext of marriage.
2.3.3 Tina would not have consented but for the intentional deception.
70) Consent is vitiated if the complainant would not have engaged in the sexual interaction if they
“had known the truth”; that is, if they had had access to the relevant information that was
previously obscured from them.123 Tina was very vocal regarding her stance on sexual relations
before marriage; she had communicated the same in clear terms on one occasion to Samarth.
She had also resisted the sexual advances of the accused and had only submitted to the same
once he had repeatedly emphasised that he would marry her.124 Therefore, it is submitted that
Tina would not have consented to the sexual intercourse, had Samarth not intentionally
deceived her with a false representation of the facts.
2.3.4 There was harm to body, mind, and reputation.

71) In the present case, there is no dispute regarding the ‘harm caused to the body’ as her body has
been violated on tainted consent received from her through deceitful induction by Samarth. Her
hands were held forcibly during the sexual intercourse on 27th June 2016.125
72) Samarth’s false promise resulted in harm to Tina’s mind as well. 126 She suffered huge mental
shock127, was appalled, shattered and had to seek treatment for depression.128 Rape is a crime
against basic human rights and is also violative of the victim’s most cherished Fundamental
Rights, namely, the right to life contained in Article 21.129 The scope of Article 21 has been
expanded by the Supreme Court to include the quality of life within the right to life.130 In 2017,
the Supreme Court also read the right to privacy as including the right to bodily integrity and
autonomy.131 Therefore, the same can be relied on to establish harm to the body as well as the
mind.
73) Chastity may not have monetary value. In the hands of the person cheated, but it definitely has
its reputation value.132 Moreover, under the definition of cheating under section 415, IPC, any
123
Jack Vidler, Ostensible Consent and the Limits of Sexual Autonomy, 17. MQLAWJL 103, (2017).
124
Moot Proposition, Annexure 1; Moot Proposition Clarifications, ¶ 15.
125
Moot Proposition, Annexure 3A; Moot Proposition, ¶ 2.
126
Moot Proposition, Annexure 3A; Moot Proposition, Annexure 3B.
127
128
Moot Proposition, Annexure 3B.
129
INDIA CONST. art. 21.
130
Minerva Mills v. UOI, 1980 AIR 1789.
131
Justice K.S. Puttaswamy and Anr. v. Union of India & Ors., (2019) 1 SCC 1.
132
17
act or omission, which may arise or likely to cause damage or harm to the person so deceived,
has also been included.”133 The acts of Samarth have resulted in harm being caused to the body,
mind and reputation of Tina. Therefore, with all the essential requirements for the offence of
cheating being satisfied, it is humbly submitted that the accused is guilty of cheating the
prosecutrix.
3. THERE ARE NO DISCREPANCIES IN THE FIR.
74) An FIR bearing No. 411/2016 at Police Station Telhi Central was filed by the prosecutrix on
24th December 2016.134 The FIR is reliable and minor discrepancies cannot overthrow the
prosecutrix’s version of this case.135 Therefore, the prosecution submits that the FIR lodged
by the prosecutrix is maintainable. There is no inordinate delay in lodging FIR by the
prosecutrix and even if the maintainability of FIR is questioned on the grounds of delay, there
is a plausible explanation to justify such delay [3.1]. Further, the grounds mentioned under the
same are reliable and hence there is no doubt with regard to the maintainability of FIR [3.2].
3.1 DELAY IN FIR
75) FIR in a criminal case is an extremely vital and valuable piece of evidence. The case of
prosecution cannot be discarded solely on the ground of delay in FIR. It would not be fatal to
the prosecution’s case if the delay is properly explained.136 It can result from several factors
such as the prosecutrix’s reluctance to go and complain about the incident which concerns her
reputation or her absence of knowledge of the clear intention of the accused.
76) Rape is a crime against the entire society as it destroys the entire psychology of a woman and
pushes her into a deep emotional crisis.137 It is only by sheer willpower that she rehabilitates
herself in the society which, on coming to know of the rape, looks down upon her in derision
and contempt. It cannot be expected from a victim and her family who is still dealing with the
repercussion of such a degrading act that she would be able to decide on filing an FIR as soon
as the cause of action arises.138
133
134
135
State of HP v. Gian Chand, (2001) 6 SCC 71; Ram Vilas & Ors. v, State of MP, 1985 Cri LJ 1773.
136
State of Punjab v. Gurmeet Singh, AIR 1996 SC 1393; State of Himachal Pradesh v. Sanjay Kumar @ Sunny,
(2017) 2 SCC 51; Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590; Karnel Singh v. State of Madhya
Pradesh, (1995) 5 SCC 518.
137
Satpal Singh v. State of Haryana (2010) 8 SCC 714, at ¶ 16.
138
Satyapal v. State of Haryana, (2009) 6 SCC 635; State of Himachal Pradesh v. Prem Singh, (2009) 1 SCC 420.
18
77) Thus, delay in lodging FIR cannot be a material reason for the refusal to accept the contents
and grounds of FIR. Further, the delay in the cases of false pretext of marriage must be
calculated from the day when the prosecutrix came to know that the promise to marry by the
accused was false and deceptive and not from the first incident.
78) There is no unexplained delay in lodging the FIR by the prosecutrix, since the day when she
came to know about the intention of the accused. The story of prosecutrix is reliable and
trustworthy. When she was faced with the realization that the person with whom she had been
in a romantic relationship, for more than a year had intentionally deceived her into doing things
that she would not have done otherwise, that too for a duration lasting almost 6 months, her
mental peace got shattered and she was shocked and appalled.
79) However, she had a reasonable expectation that he would approach her and mend things. She
kept on waiting for Samarth to contact her, given the duration of the relationship and assurance
of his father that “this was just a phase and things would get better.” But Samarth failed to turn
up even once in the 2 weeks duration. Upon being dejected and disappointed, the FIR was filed
by her with a delay of merely 2 weeks. It is therefore submitted that the delay caused is not
inordinate and the same cannot be a ground to question the maintainability of FIR.
3.2 GROUNDS IN FIR
80) The prosecution submits that the FIR was filed by the prosecutrix on the grounds of Rape on
the false pretext of marriage and Criminal Breach of Trust. Grounds mentioned under the FIR
are ‘fraud, coercion and cheating.’ Further, the words ‘fraud, coercion and cheating’ have been
used in the FIR while describing the nature of the prosecutrix’s consent. It is submitted that
fraud, coercion, and cheating are applicable in the present set of facts.
81) The two grounds specified in Section 90 are analogous to coercion and mistake of fact which
are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as
well as other countries.139 The meaning and scope of the term ‘fraud’ is wide, and the consent
obtained through fraud and coercion under Section 90 cannot be availed of to justify what
would otherwise be an offence.140 Therefore, it is submitted that the consent of the prosecutrix
is vitiated by fraud, coercion and cheating and the grounds under FIR are maintainable.
139
Deelip Singh, supra note 14.
140
N. Jaladu, Re, (1913) ILR 36 Mad 453; Deelip Singh, supra note 14.
19
PRAYER
Wherefore, in the light of the issues raised, arguments advanced, reasons given, and authorities
cited, it is most humbly prayed that this Hon’ble Sessions Court of Telhi may be pleased to:
A. ALTER, the charges against Samarth from Section 406 to Section 417 of the Indian
Penal Code, 1860.
B. CONVICT, Samarth for the offence of rape under Section 376(2) and cheating under
Section 417 of the Indian Penal Code, 1860.
C. DECLARE:
i) a sentence of rigorous imprisonment for a term which shall not be less than ten
years, and an appropriate fine under Section 376 of the Indian Penal Code, 1860.
ii) a sentence of simple imprisonment for a term which may extend to one year and an
appropriate fine under Section 417 of the Indian Penal Code, 1860.
AND/OR
Pass any order, direction or relief that this Hon’ble Court may deem fit in the interests of
justice, equity and good conscience, all of which is respectfully submitted.
And for this act of kindness, the Prosecution duty bound shall ever pray.
DATE: 28/03/2023 S/d_____________

PLACE: Sessions Court of Central Telhi (COUNSELS FOR PROSECUTION)
20

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TC-13-P

11TH RGNUL NATIONAL MOOT COURT COMPETITION 2023

IN THE FORM OF TRIAL ADVOCACY

BEFORE THE HON’BLE SESSIONS COURT OF CENTRAL TELHI

CRIMINAL PETITION NO._____/2017

UNDER SECTION 177 OF THE CODE OF CRIMINAL PROCEDURE, 1973

STATE OF TELHI SAMARTH

MEMORIAL for PROSECUTION

TABLE OF CONTENTS .................................................................................................................I

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

INDEX OF AUTHORITIES .......................................................................................................... IV

STATEMENT OF JURISDICTION ..................................................................................................X

STATEMENT OF FACTS ............................................................................................................ XI

ISSUES RAISED ....................................................................................................................... XIII

SUMMARY OF ARGUMENTS ................................................................................................... XIV

1. THE ACCUSED IS GUILTY OF RAPE ON “FALSE PRETEXT OF MARRIAGE.” ................ 1

1.1 The Sexual Intercourse was ‘against her will’......................................................... 1

1.2 The Sexual Intercourse was ‘without her consent’ .................................................. 2

1.2.1 Consent was based on ‘misconception of fact.’ ............................................... 2

1.2.2 Absence of Physical Injuries does not amount to consent. .............................. 5

1.2.3 Burden of Proof ................................................................................................ 5

1.4 Admissibility of Evidence ....................................................................................... 9

1.4.1 Oral Evidence ................................................................................................... 9

1.4.2 Documentary Evidence .................................................................................. 10

1.4.3 Circumstantial Evidence ................................................................................ 11

1.5 Defence of Intoxication is not attracted ................................................................. 11

2. THE ACCUSED IS NOT GUILTY OF CRIMINAL BREACH OF TRUST.............................. 12

2.1 Charge of section 406 is not appropriate ............................................................... 12

2.2 Plea for Alteration of Charges is maintainable ...................................................... 13

2.2.1 Essentials of Section 216(1) are met. ............................................................. 13

2.2.2 Essentials of Section 216 (2) to (5) are met. .................................................. 14

2.3 The Accused is guilty of Cheating ........................................................................ 14

2.3.1 There was an act of deception by the accused ............................................... 15

2.3.2 The deception by accused was intentional. .................................................... 16

2.3.4 There was harm to body, mind, and reputation. ............................................ 17

3. THERE ARE NO DISCREPANCIES IN THE FIR. ............................................................. 18

3.1 Delay in FIR .......................................................................................................... 18

3.2 Grounds in FIR ...................................................................................................... 19

ABBREVIATION ACTUAL TERM

AIR All India Reporter

CrPC Code of Criminal Procedure

FIR First Information Report

IEA Indian Evidence Act

IPC Indian Penal Code

r/w Read with

SCC Supreme Court Cases

SCR Supreme Court Reporter

UOI Union of India

55. Tukaram v. State of Maharashtra, (1979) 2 SCC 143. 6

STATUTES AND REGULATIONS

1. Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India). 7

Criminal Law (Amendment) Act, 2013, § 9, No. 13, Acts of Parliament,

3. Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India). 4

Information Technology Act, 2000, No. 21, Acts of Parliament, 2000

3. CK TAKWANI, CRIMINAL PROCEDURE (Lexis Nexis 2014).

4. RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE (LexisNexis 2013).

6. RATANLAL & DHIRAJLAL, THE LAW OF EVIDENCE (LexisNexis 2021).

S. NO. REPORTS PAGE