TEAM CODE: 35

INTERNAL EXAM MOOT

BEFORE THE HON’BLE SUPREME COURT OF ARYAWARTA

UNDER ART. 136 OF CONSTITUTION OF ARYAWARTA

SUMESH : APPELLANT

VERSUS

STATE OF SAMMANRASHTRA : RESPONDENT

MEMORIAL FOR RESPONDENT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
 INDEX OF AUTHORITIES

1. Rupa Ashok Hurra versus Ashok Hurra, AIR 2002 SCC 388

2. Narpat Singh versus Jaipur Development Authority, 2002 (4) SCC 666

3. Chamanlal versus State of Himachal Pradesh, AIR 2021 SUPREME COURT 46

4. Ramesh Chandra versus State, AIR 1966 PUNJAB 93

5. Narsingh and another v. The State of Uttar Pradesh, AIR 1954 SUPREME COURT
457

6. Baladin & Others v. The State of Uttar Pradesh, AIR 1956 SUPREME COURT 181

7. Pramod Suryabhan Pawar v. State of Maharashtra, 2019 (9) SCC 608

8. Shambhu Kharwar versus State of Uttar Pradesh and Anr, Criminal Appeal No 1231
of 2022.

ABBREVIATIONS

IPC - Indian Penal Code

APC - Aryawarta Penal Code

DNA - Deoxy Ribo Nucleic Acid

SLP - Special Leave Petition

Crpc - Code of Criminal Procedure

 STATEMENT OF JURISDICTION

The Appellants do not have the jurisdiction to approach the Supreme Court of Aryawarta
under any provisions of the laws and the constitution of Aryawarta.

STATEMENT OF FACTS
1. Complainant 1 is a resident of Bhadravati which is a small town in Sammanrashtra which
is in the country Aryavarta.

2. Complainant 1 Twinkle a woman aged 38 years old she was suffering from stomach ache
and when she went to doctor it was found out that the complainant was four months pregnant
on 31-01-23.

3. The complainant when asked about pregnancy by her sister-in-law, who is Complainant 2,
she took Sumesh’s name, who is the accused/ appellant. Both the complainants with her
family went to ask for marriage on 01-02-2023, but their family refused to marriage and
asked for adoption.

4. Then the Complainant 2 lodged an FIR in Bhadravati Police Station on the same day and
also stated that Complainant 1 was not mentally and physically an able person and accused
by showing knife and threatening her forcefully raped her multiple times when she used to go
with nephew Rajiv for goat herding in the field.

5. During the investigation Complainant 1 took investigating authorities to the site where
offence was committed the act multiple times. Every instance was explained in detail to the
magistrate by her own without any assistance.

6. The doctor in her evidence stated that DNA matched with appellant but there was no
mention of disabilities in this regard. Appellant contended that the affair was consensual but
he did not want to get married to Twinkle. Although the knife mentioned in FIR was
recovered from his kitchen. The trial court found him guilty for an offense under sec. 376 (2)
(n). The appeal made in Sammanrastra High Court confirmed the conviction. In despondency
Respondent 1 preferred an appeal before Supreme Court of Aryavarta.
 EVENTS
1. Severe stomach ache through which pregnancy of Complainant 1 was revealed on 31- 01-
2023.
2. Complainant 2 asked appellant to marry Complainant 1 which was denied by him and his
parents. After which an FIR was lodged on 01-02-2023.
3. The complainant 1 took the authorities to the spot of crime on 03-02-2023.

4. In her medical report, of which examination was taken on 01-02-2023, Complainant 1 was
found out to be pregnant and also later the DNA report of the child matched with the
appellant. This DNA report was found on 15-06-2023.
5. The complainant’s statement under sec. 164 of Crpc was taken on 04-02-2023, where no
assistance was taken.
6. During the evidence a translator was asked by Complainant 2 and it was permitted by the
Learned judge and adduced her evidence on 04-05-2023.

7. Recovery of knife which was mentioned in FIR was recovered from appellant’s kitchen on
03-02-2023.

8. The accused appealed in Sammanrastra High Court and was dismissed on 01-02-2024. In
response, he preferred an appeal before the Supreme Court.

STATEMENT OF ISSUES

1. Whether the Supreme Court has the jurisdiction to entertain the appeal.
2. Whether the appellant is guilty of sec. 376(2) (n) of APC.
3. Whether the appellant is guilty of sec. 506 of APC.

SUMMARY OF ARGUMENTS
Whether the Supreme Court has the jurisdiction to entertain the present appeal?
The counsel from the side of respondent pleads that the Supreme Court has no jurisdiction to
entertain the present appeal. It is because there is no provision of law which allows such
appeal. Neither there is any provision under constitutional law nor there is any provision
under the criminal law to file an appeal in such a case. The law of Aryawarta are very clear
that the appeal will lie to the Supreme Court only in two cases. They are, either when the high
court has certified a case to be decided by Supreme Court or when high court has reversed the
acquittal or conviction. In this case, there is none. The trial court and high court, in this case,
both have convicted the appellant under heinous offenses under sec. 376(2) (n) and sec. 506
of APC.

Whether the appellant is guilty of an offense under sec. 376(2)(n) of APC?

The counsel from the side of the respondent pleads that the appellant is guilty for the offense
under sec. 376(2)(n) of APC. This offence was committed on a person who is physically and
mentally disabled, who is not able to give consent. The consent is an essential aspect of this
offense and is necessary to exist in such a case, if there is no availability of consent the
accused is held guilty of the sexual act. In the given facts the appellant has committed the act
multiple times. Here, she is incapable of giving consent which makes the appellant guilty of
the offense.

Whether the appellants are guilty of an offense under sec 506 of APC?

The counsel from the respondent's side pleads that the appellant is guilty of the offence under
sec. 506 of APC. The reasons and grounds for the appeal are completely baseless and
illogical. It is clear from the facts and circumstances that along with sec. 376, the accused is
also guilty of sec. 506 APC. It is to be understood by the hon'ble court that the appellants
have approached the court to prove that there is no offence being committed by the appellant,
but it is completely false. Criminal intimidation is an important and an inalienable part of the
offence. The availability of the knife and the prevailing circumstances clearly states that
criminal intimidation is being committed by the appellant.

ARGUMENTS IN ADVANCED
Whether the Supreme Court has the jurisdiction to entertain the appeal?

The counsel of the respondent pleads that the Supreme Court does not have the jurisdiction to
entertain the present appeal. There are no constitutional or other legal provisions which allow
the appeal in the Supreme Court, in such a case. This appeal is filed only to waste the time of
hon’ble court. There are many restrictions which are being made by the statutory authorities
itself. Sec. 379 of Crpc talks about the power of appeal against high court and it clearly
restricts such appeal. Sec. 379 of Crpc is given below:

‘379. Appeal against conviction by High Court in certain cases.- Where the High Court has,
on appeal reversed an order of acquittal of an accused person and convicted him and
sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years
or more, he may appeal to the Supreme Court.’

This provision clearly states that the appeal against the conviction will lie only in those cases
where the order of acquittal was reversed by the high court. The principle of appeal is
absolutely clear which states that an appeal is a statutory right and it cannot be claimed unless
it is mentioned. So, approaching the hon’ble court for appeal where both the trial and high
court have declared the accused guilty is not proper in law. The purpose behind making such
a provision was to bring less interference of the Apex court in criminal trial and make the
process fast. The appellants by filing this appeal are failing to take into account the law of the
land and just trying to cause trouble to the complainant. Apart from this there are many
constitutional provisions which also restrict the power of appellant to file an appeal and
support the above-mentioned points. Art. 134 is one of those articles which restricts the
appellant and put certain important conditions in order to file an appeal. Art. 134 which talks
about appeal against the decision of high court in criminal cases, is mentioned below:

‘An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a
criminal proceeding of a High Court in the territory of India if the High Court-

(a)has on appeal reversed an order of acquittal of an accused person and sentenced him to
death; or

(b)has withdrawn for trial before itself any case from any court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to death; or

(c)certifies under article 134A that the case is a fit one for appeal to the Supreme Court’
This article clearly mentions the conditions which are required to be fulfilled in order to file
an appeal to Supreme court against the high court in criminal cases. None of the conditions
exist in the present facts and circumstances, there has been no reversal of any order in this
case. As mentioned earlier the high court confirmed the conviction given by trial court. There
has neither been a case of withdrawal by the high court, where accused was sentenced to
death. Apart from this the facts do not mention about any kind of certification granted under
Art. 134A of the constitution. So, the provision which remains is Art. 136, which talks about
SLP. This is a provision which gives wide power to the Supreme court to entertain an appeal
which is not only passed by high court but also the tribunals. There is an existence of wide
jurisprudence with regard to the discretionary power given to the Supreme court under Art.
136. The Supreme court has been given the power to grant a special leave to an appeal for a
decision given by any court or tribunal. It is to be remembered that this Article cannot be
claimed as a right because its merely a discretionary power of the court. Art. 136 is being
mentioned below:

‘136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2)Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.’

After having a bare reading of Art. 136 it can be easily deduced that an appeal under this
Article can lie against any judgement, decree, determination, sentence or order not only
passed by the High Court but also the tribunals, which exists for different specialized matters.
The only condition is that the appeal should not be against any decision given by any tribunal
relating to Armed Forces. This article has given power to the Supreme Court to consider the
orders which are not otherwise appealable and are causing grave injustice. The speciality of
the Art. is that it is not related to some specific subject matters and can be utilized against any
decision which is either related to civil law or criminal law. The main purpose behind this
article is to ensure justice and fairness. It is true that no person shall suffer injustice just
because he did not get the right to file an appeal, but if the court starts entertaining every
special leave, it will waste the time of courts and increase pendency. Hence, it is being
highlighted by many cases that this power to grant special leave should be sparingly used by
the Supreme Court. In the case of Rupa Ashok Hurra versus Ashok Hurra 1 it was held that
SLP should not be treated as an appeal in the regular sense. It held that the Court should
exercise its jurisdiction under Article 136 only in exceptional cases involving a substantial
question of law or a manifest injustice . Apart from this, there was one more case of Narpat
Singh versus Jaipur Development Authority2 wherein it was held that the power given to the
Supreme court under Art. 136 is a discretionary power and not a regular appeal. It is for this
reason mostly the Supreme court uses this power with great caution. It is the same case here,
there is no jurisdiction of Supreme court in this case and there is no reason to interfere with
the findings of high court. The appellants are just wasting the time of hon’ble court by filling
this appeal.

Whether the appellant is guilty of offense under sec. 376(2)(l) and sec. 376(2)(n) of APC

The counsel of the respondent pleads that the appellant is guilty of the above-mentioned
sections. The High Court is justified in confirming the conviction trial court rightly held him
guilty under section 376(2)(n), 376(2)(I) APC and sentenced him 15 years of rigorous
imprisonment. It is submitted that, the accused here has committed such a grave and heinous
offence and the complainant was mentally and physically disabled and taking the advantage
of this fact and the consent was never taken. Consent was given under fear and unsoundness
of mind which is totally invalid and unjust. The consent should be constitute out of
willingness and in this case consent was achieved through fear of injury. Consent is an
important aspect of entire sec. 376 of APC. An active understanding of the circumstances is
an essential part of consent. This was held in the case of Pramod Suryabhan Pawar v. State of
Maharashtra.3 It is being made clear by the court in many cases that the consent needs to be
existing for proving that there was no rape involved. There needs to be clear and unequivocal
consent by the victim in order to negate the possibilities of rape. There has been no such
consent given by the Complainant 1. It is because she is not cogent to give any consent. The
appellant has done inhumane acts on the innocent disabled Complainant 1, she did not have
any knowledge or understanding about what is happening. It is very difficult for the
Complainant 1 to stabilize herself mentally, this appeal is filed just to give a tremendous

1
Rupa Ashok Hurra versus Ashok Hurra, AIR 2002 SCC 388
2
Narpat Singh versus Jaipur Development Authority, 2002 (4) SCC 666
3
Pramod Suryabhan Pawar v. State of Maharashtra, 2019 (9) SCC 608
mental torture to the complainant 1 because she showed the guts to complaint the police
about the act. It is already being confirmed by the trial and high court that the act committed
was rape and still the appellant is just trying new ways to torture the complainant 1. The
Supreme court has also highlighted the importance of such issue in many occasions. In the
case of Chaman Lal versus State of Himachal Pradesh 4 the court had held the accused who
committed rape on a mentally disabled guilty of sec. 376. The high court in this case was also
of the same opinion. It was clearly stated in this case that if the accused is taking an undue
advantage of mental incapacity of the victim, he would be held guilty. This is the same
situation occurred in this case. The appellant has taken advantage of the disability of
Complainant 1 and committed the act. Apart from this, it was also made clear in the case of
Shambhu Kharwar versus State of Uttar Pradesh and Anr. 5 that if the accused under the fear
of threat or injury takes the consent, is not supposed to be considered valid. It will still make
the accused guilty of rape. This is the situation occurred here, the appellant under the fear of
injury to complainant 1 has committed sexual acts multiple times and caused her serious
mental trauma.

Apart from this, the evidence and circumstances also support that complainant 1 had given no
consent to the appellant for the act of sexual intercourse. The DNA reports later informed that
such an act has taken place and she was found to be four months pregnant. It was also
revealed that this act was committed by the appellant multiple times on her. A woman is very
vulnerable in such situation. So, it was a kind request of the counsel of the respondent that the
hon’ble court should not pay any attention to the appeal filed by the appellant. The grounds
and the reasons mentioned in them are completely baseless and made just to cause mental
torture to the complainant 1.

Whether the appellant is guilty of offense under sec. 506 APC

The counsel of the respondent pleads that the appellant is guilty of offense under sec. 506 of
APC. The grounds on which the appellant has approached are completely baseless and
without any reason. It is clearly visible through the facts that the appellant has committed the
offense of criminal intimidation. It is a lie and completely untrue statement that the

4
Chaman Lal versus State of Himachal Pradesh, CRIMINAL APPEAL NO. 1229 OF 2017

5
Shambhu Kharwar versus State of Uttar Pradesh and Anr, Criminal Appeal No 1231 of 2022
complainant and appellant were in a mutual relationship of any kind. It is absolutely false that
both of them consensually had a sexual intercourse out of love, but it was by the threat and
intimidation being brought through the knife. It was a clear and absolute criminal
intimidation for which the appellant needs to serve the full sentence of 15 years as given by
the trial court and confirmed by the high court. Sec. 503 of APC defines criminal intimidation
and sec. 506 of APC prescribes the punishment for the same. Sec. 503 of APC is given
below:

‘Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm
to that person, or to cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation.

Explanation. — A threat to injure the reputation of any deceased person in whom the person
threatened is interested, is within this section.’

This offense consists of a person trying to impose a threat on the other person, or any person
in whom that other person is intrested. This definition attempts to explain the essential
elements required to constitute an offense of criminal intimidation. The first element is to
threatening a person by way of injury to him, his property or reputation. The threat can also
be of causing an injury to a person, his reputation or property in whom you are intrested. For
example, a son or daughter. The threat caused shall be with an intention to cause alarm to that
person i.e. to shock or warn him with a weapon. A threat can also be to make him perform an
act which he is bound not to do legally, as the means of avoiding the execution of such threat.
The threat can also be made with an intent to cause that person to omit to do an act which he
is legally entitled to do as the means of avoiding the execution of threat.

Initially when the complainants went to file the complaint they were clear from that point of
time about the commission of the crime and hence they filed the complaint. In the facts and
circumstances of the given case, all the essentials are being satisfied. The knife recovered
from the house of the appellant was used prominently in the commission of the offence. We
shall see how each and every element of criminal intimidation is present in the given facts.
The knife was used to threaten her for an injury, which in this case is to a person, as required
by sec. 503 of APC. The threat was made to cause an alarm to the complainant who is
mentally and physically not an able person. The knife was a sufficient threat to compel such a
person to engage in a sexual act. There was no consensual relationship between the appellant
and the complainant. This relationship is a concocted story made by the appellant to mislead
the court and to set him free. The multiple sexual acts which took place, were by the threat of
a knife and obviously without the consent of the complainant and by showing criminal
intimidation to her. The hon’ble court also needs to remember that the offense of criminal
intimidation in this case is integrated with rape. This act has taken place with a woman who is
physically and mentally disabled. The court needs to be sensitive and aware of the
consequence which it will have on the woman and the society. This also happened in the case
of State of Himachal versus Prem Singh, it involved an offense under sec. 354, 376 and 506
of IPC. The court took into account the sensitivity of the issue and acted accordingly and held
the accused guilty. It is to be understood that when someone is mentally or physically not an
able person, it is very difficult to fulfil normal needs. Hence, it is already hard to live a life as
a disabled and if such acts are committed on them, it creates a dangerous situation for them. It
is for this reason the court is supposed to be more careful and sensitive for those people who
are suffering from any physical and mental disability. There is one more case of Chamanlal
versus State of Himachal Pradesh6 where it involved an offense under sec. 376 and 506 of
IPC and highlighted the importance of the role of court while dealing with such case. It
confirmed the conviction given by the high court for the above-mentioned offenses and took
the matter seriously and dealt with it in a similar manner.

Apart from this it is also to be considered that the conviction of the accused is being done by
the trial court and confirmed by the high court. This brings a double presumption against the
accused and hence the Supreme Court needs to be very cautious before reversing a conviction
which is confirmed by the high court. There have been many cases where it has been stated
that the Supreme Court need not reverse the decisions given by the High Court always but
needs to exercise great caution before doing so. It is because the high court respects the
decision of the trial court and reverses the decision after taking great caution and for
compelling reasons. This shall be done only when High court has done any illegality while
passing the orders. It was stated in the case of Ramesh Chandra versus State 7 that if there is
no illegality committed by the high court then there is no need to reverse the decision given
by them.

6
Chamanlal versus State of Himachal Pradesh, AIR 2021 SUPREME COURT 46

7
Ramesh Chandra versus State, AIR 1966 PUNJAB 93
 PRAYER

The above-mentioned respondent most humbly and respectfully prays that:

1. To dismiss the appeal for a want of jurisdiction.

2. To confirm the conviction given by the trial court and high court.
3. To pass or give any other relief which the court may deem fit in the interest of justice
equity and good conscience.