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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

TEAM CODE: IMC24-01

GAUTAM BUDDHA UNIVERSITY , INTRA MOOT , 2024

BEFORE THE HON'BLE SUPREME COURT OF VISHWESHRA

SPECIAL LEAVE PETITION NO.: 1/ 2024

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF
RANVEER ... APPELLANT
V.
DEEPIKA ... RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

TABLE OF CONTENTS

LIST OF ABBREVATIONS........... ........................................................................................4

INDEX AUTHORITIES..........................................................................................................5

ACTS AND STATUTES..........................................................................................................6

BOOKS REFERRED...............................................................................................................6

LEGAL DATABASE................................................................................................................6

STATEMENTOFJURISDICTION ........................................................................................... 7

STATEMENTOFFACTS ......................................................................................................... 8

ISSUES RAISED ......................................................................................................................... 9

SUMMARY OF
ARGUMENTS...........................................................................................................................10

ARGUMENTS ADVANCED.................................................................................................11-24

ISSUE 1 THE APPEAL IS NOT MAINTAINABLE BEFORE THIS HON’BLE COURT

1.1 Irrespective of the locus standi of the Appellants, the Petition for Special Leave is not
maintainable
1.2 Non-interference in the decision of the lower courts
1.3 Scope of powers under Article 136
1.4 Grounds on which appeal are granted not satisfied
1.5 Grounds of rejection
ISSUE 2 CONSTITUTIONAL VALIDITY OF SEC 69 OF VNC
2.1 Section 69 of the VNC is constitutionally valid
GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

2.2 Ranbir’s liability for deceitful conduct contrary to promise to marry

ISSUE 3 WHETHER ELECTRONIC EVIDENCE IS ADMISSIBLE AS PROOF

OF INTENTION

3.1 What is electronic evidence?

3.2 Admissibility of such evidence in court of law

3.3 Mens rea

Prayer.............................................................................................................................25
GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

LIST OF ABBREVIATIONS

Abbreviations Expansion

AIR All India Reporter

Hon’ble Honorable

& And

UOV Union of Vishweshwara

Art Article

VNC Vishweshra Nyaya Code

SCR Supreme Court Record

SCC Supreme Court cases

SC Supreme Court

Ors Others

v. Versus

No./ Nos. Number/Numbers

p/pp. Page/pages

Resp. Answer Respondent Answer

HC High court

govt. Government
GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

INDEX OF AUTHORITIES

CASES:

1 N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196

2 Pritam Singh v. The State, AIR 1950 SC 169

3 A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546

4 Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467

5 M.C. Mehta v. Union of India, AIR 2004 SC 4618

6 Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15

7 Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806

8 Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323

9 Mathai Joby v. George, (2010) 4 SCC 358

10 Union of India v. Era Educational Trust, AIR 2000 SC 1573

11 DCM v. Union of India, AIR 1987 SC 2414

12 Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492

13 Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622

14 Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563 15 Panchanan Misra v. Digambar Mishra,
AIR 2005 SC 1299

16 Taherkhatoon v. Sala,binMohammam, AIR 1999 SC 1104

17 Taherkhatoon v. Sala,binMohammam, AIR 1999 SC 1104

18 Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC) 19 Chief Administrator cum Jt. Secretary,
Government of India v. D. C. Dass, AIR 1999 SC 186

20 Siemens Eng &Mfg Co. v. Union of India, AIR 1976 SC 1785

21 Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78

GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

BOOKS & REFRENCES

1.Commentary on IPC by Ratanlal&Dheerajlal

2. Constitution of India by V.N. Shukla

3. Constitution of India by P.M. Bakshi

4. Indian Evidence Act by Ratanlal&Dheerajlal.

5. Text book on IPC by K.D. Gaur

LINKS

1. manupatra.com

2. highcourt.nic.in

3. supremecourtofindia.nic.in

4. indiatoday.in

5. timesofindia.indiatimes.com

6. indiankanoon.org

7. advocatekhoj.com

8. indpaedia.com
GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

STATEMENT OF JURISDICTION

The Hon‘ble Supreme Court doesn‘t have jurisdiction under article 136 of Constitution of India
as it reads as follows:-

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. The special Leave Petition can be filed when there is gross injustice or the High Court
has ignored the Substantial question of law. But there has been no gross injustice occurred to the
petitioner and hence the same can be dismissed.

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

STATEMENT OF FACTS

The case is set in the state of Bhageshwari in Vishweshwara, a quasi-federal state with a
predominantly Hindu population.

Deepika, from Kollam district, and Ranveer, from Chittoor district, are both Hindus and medical
students at Vikramaditya Medical College in Kasaragod.

Ranveer, a year senior to Deepika, helps her adjust to college life, and they become a couple in
July 2021.

They move into a rented apartment together in February 2022, primarily due to societal pressure.

Deepika's childhood friend, Karan, returns from the US and settles in Kasaragod, causing tension
in Deepika and Ranveer's relationship.

At a Christmas party in December 2023, Karan expresses his feelings for Deepika, leading to a
confrontation between Ranveer and Karan.

Ranveer leaves their shared apartment on 25th December 2023 after an argument with Deepika
and Karan.

Deepika files an FIR against Ranveer under the new Vishweshwara Nyaya Code (VNC) for
promise to marry and desertion.

The Sessions Court convicts Ranveer based on WhatsApp messages as evidence of the promise
to marry and sentences him to 8 years of simple imprisonment

Ranveer appeals the decision to the Supreme Court of Vishweshwara, with the final hearing
scheduled for 19th April 2024.

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

ISSUES RAISED

1.Whether the present appeal is maintainable before Supreme Court of Vishweshra

2. Whether Section 69 of VNC is constitutionally valid or not? Whether Ranveer is

liable for punishment under Section 69 of VNC?

3. Whether Electronic evidence is admissible as proof of intention?

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

SUMMARY OF ARGUMENTS

1. Whether the present appeal is maintainable before Supreme Court of

Vishweshwara?
It is most humbly submitted before this Hon‘ble Supreme Court of India that this special
leave petition filed by the petitioner is not maintainable as there is no gross injustice has
occurred to the petitioner. And also, Sessions Court has not ignored any substantial
question of law at the time of delivering the judgment. Hence the same should be
dismissed by the Supreme Court of India

2. Whether Section 69 of VNC is constitutionally valid or not? Whether Ranveer is

liable for punishment under Section 69 of VNC?
It is most humbly submitted before this Hon‘ble Supreme Court of Vishweshwara that the
section 69 of VNC is constitutionally valid in nature as it does not violate any
fundamental rights of the citizens as well as it provides an umbrella protection to the
community that is socially marginalized and is a preventive law against the malpractices
in the society and Ranveer is liable to punishment under this section due to his promise to
marry Deepika and subsequent desertion that leads to ostracization by society and
questions upon her integrity upon Deepika, which also results in emotional trauma

3. Whether electronic evidence is admissible as proof of intention?

It is most humbly submitted before this Hon‘ble Supreme Court of Vishweshwara that the
electronic evidence if proved along with mens rea can in some cases be admissible as
proof of intention, if all the evidences collected are legally, voluntarily submitted by the
complainant, or obtained by the court via notice if it deems reasonable and using the
original device which was used during such communication.

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

ARGUMENTS
ADVANCED

1. THE APPEAL IS NOT MAINTAINABLE BEFORE THIS HON’BLE COURT

1.1 Irrespective of the locus standi of the Appellants, the Petition for Special
Leave is not maintainable

1.1.1 Article 136 does not confer a Right of Appeal, but merely, a discretionary
power to the Supreme Court to be exercised for satisfying the demands of justice
under exceptional circumstances1 Pritam Singh v. The State 2, the Supreme Court
held that the power under Article 136 is to be exercised sparingly and in
exceptional cases only. In concluding the discussion on Article 136 in the same
case, it was held the by the Supreme Court that „Generally speaking, this court
will not grant Special Leave, unless it is shown that exceptional and special
circumstances exist, that substantial and grave injustice has been done and that
the case in question presents features of sufficient gravity to warrant a review of
the decision appealed against.‟

1.1.2 Although the power has been held to be plenary, limitless3 , adjunctive,
and unassailable4 , in M. C. Mehta v. Union of India 5and Aero Traders Private
Limited v. Ravider Kumar Suri 6, it was held that the powers under Article 136
should be exercised with caution and in accordance with law and set legal
principles.

1
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196
2
Pritam Singh v. The State, AIR 1950 SC 169
3
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
4
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
5
M.C. Mehta v. Union of India, AIR 2004 SC 4618
6
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

1.1.3 In the cases of Secretary, State of Karnataka v. Umadevi 7and Shivanand

Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills 8, the Supreme Court has
criticized the approach of settling private disputes under Article 136, stating that it
would lead to confusing results and lack of precedents. The Court observed that
the Court is not bound to interfere even if there is error of law in the impugned
order .9

1.2 Non-interference in the decision of the lower courts:

1.2.1 If it appears prima facie that the order in question cannot be justified by any
judicial standard, the ends of justice and the need to maintain judicial discipline require
10
the Supreme Court to intervene he Supreme Court in this case pointed out the errors of
the High Court, but, did not interfere in the decision of the High Court. The Supreme
Court does not interfere with the conclusion arrived at by the Tribunal if it has taken all
the relevant factors into consideration and there has been no misapplication of the
principles of law11 .

1.2.2 Normally, in exercising its jurisdiction under Article 136, the Supreme Court does
not interfere with the findings of the fact concurrently arrived at by the tribunal and the
High Court unless there is a clear error of law or unless some important piece of evidence
has been omitted from consideration 12.

1.2.3 A question is not allowed to be raised for the first time in an appeal before the
Supreme Court13. It would refuse a question to be developed before it when it had neither
been urged before the High Court nor before the Appellate Tribunal 14.

7
Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806
8
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323
9
Mathai Joby v. George, (2010) 4 SCC 358
10
Union of India v. Era Educational Trust, AIR 2000 SC 1573
11
DCM v. Union of India, AIR 1987 SC 2414
12
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492
13
Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622
14
Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

1.2.4 Though Article 136 is conceived in widest terms, the practice of the Supreme
Court is not to interfere on questions of fact except in exceptional cases when the finding
is such that it shocks the conscience of the court .15

1.3 Scope of Powers under Article 136:

1.3.1 It is humbly submitted that if Special Leave is granted, the matter is registered as
an appeal and the Court does not take into cognizance all the points that may arise on
appeal and decide them on Merits 16. The Supreme Court has also held that ―it is not
bound to go into merits and even if we do so and declare the law or point our the error –
still we may not interfere if the justice of the case on facts does not require interference
or if we feel that the relief could be moulded in a different fashion.17‖

1.3.2 The Supreme Court in Kunhayammed v. State of Kerala 18held that Article 136
consists of two distinct stages, the first stage where the matter is merely being decided if
it is to be accepted as an appeal or not; if the Supreme Court decides to adjudicate the
matter, it becomes an appeal, if otherwise, the matter was never an appeal.

1.3.3 Hence, it is humbly submitted to this Hon‘ble Court that by reason of lack of any
specific matter that requires the intervention of this Hon‘ble Court, the Court need not
entertain the matter; however, if this Hon‘ble Court does decide to accept the Petition for
Special Leave, it is humbly submitted that this Hon‘ble Court only adjudicate upon the
order of the Bombay High Court, i.e., not to hear this Appeal on merits, but merely, on
the right place of suing.

1.4 Grounds on which appeal are granted not satisfied:

15
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299
16
Taherkhatoon v. Sala,binMohammam, AIR 1999 SC 1104
17
Taherkhatoon v. Sala,binMohammam, AIR 1999 SC 1104
18
Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC)

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

1.4.1 The Supreme Court has exercised its Jurisdiction under Article 136 under the following
circumstances-

(i) When the Tribunal ostensibly fails to exercise its patent jurisdiction19.

(ii) When there is an apparent error on the face of the decision .20

(iii) The tribunal has erroneously applied well-accepted principles of jurisprudence21

(iv) The tribunal acts against the principles of Natural Justice,22 or has approached the question
in a manner likely to cause injustice23

1.4.2 In the instant case, the Bombay High Court has not committed any error in law. The High
Court has respected the subsisting contract between the parties and has observed that it was not
the right forum for adjudicating the matter. There is no breach in law or natural justice; to say the
decision of the Bombay High Court was wrong would be wrong because the matter has not been
adjudicated on merits whatsoever. Hence, it is humbly submitted to this Hon‘ble Court that no
grounds can be made out for accepting this petition for Special Leave.

1.5 Grounds of rejection:

1.5.1 In Kunhayammed and Others v. State of Kerala and Another24, it was held that a petition
seeking grant of special leave to appeal may be rejected for several reasons The question raised
by the petitioner for consideration by this Court being not fit for consideration or deserving being
dealt with by the Apex Court; it is humbly submitted that there is no ground for invoking this
Hon‘ble Court‘s jurisdiction under Article 13

19
Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186
20
Siemens Eng & Mfg Co. v. Union of India, AIR 1976 SC 1785
21
Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78
22
City Corner v. P.A. to the Collector, AIR 1976 SC 143
23
Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253
24
Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

2.1Section 69 of the BNSS is constitutionally valid

The proposed BNS Bill would bring about changes in this regard which merits a closer scrutiny.
Clause 69 of the said bill states, ―Whoever, by deceitful means or making by promise to marry to
a woman without any intention of fulfilling the same, and has sexual intercourse with her, such
sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of
either description for a term which may extend to ten years and shall also be liable to fine.‖

Explanation – ―deceitful means‖ shall include the false promise of employment or promotion,
inducement or marring after suppressing identity.‖

While proposing to criminalise deception in the procurement of sex, there is still a lack of clarity
as to what ‗kind‘ of deception this would include since there is persisting vagueness even after
the insertion of the explanation.

Moving to the central focus of this note, which is a false promise of marriage, the proposed
legislation lays down three ingredients to be fulfilled:

1. The accused makes a promise to marry,

2. The promise is without any intention of being fulfilled, and

3. The accused has sexual intercourse with the victim.

There are significant changes this new offense would make to the jurisprudence on promise to
marry. Firstly, this would create a new offense which is separate from ‗rape‘. Secondly, the
proposed punishment would be significantly lower; while a rape charge carries a minimum
sentence of ten years, the same is the maximum sentence prescribed under this new offence.
Thirdly, it does not require knowledge on part of the man that the consent has been given under a
misconception of fact. Lastly, it throws out the requirement for the consent of women to be based
on the deception.90 Therefore, if there is a false promise and sex subsequently, an offense is
established.

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

This provision centralises the ‗deceit‘ rather than the presence or absence of consent. What this
might mean for the promise to marry jurisprudence in India is that it could lead to a reduced
reliance on assumptions and prejudices of the fact finder in the finding of guilt.

The current legal framework does not give recognition to this subjectivity of women. For
instance, in Bodhisattava Gautam v. Chakraborty25, the petitioner had asked for maintenance
against a partner with whom she had had a long relationship, been through two abortions at his
behest, and yet was abandoned despite a longstanding promise to marry.99 Here the claim was
only for maintenance and yet the Supreme Court constructed this as a case of rape.

The fact that a claim of maintenance for breach of promise to marry was interpreted as ‗rape‘
shows how in constructing consent in promise to marry cases in this manner, what the women
actually wants gets sidelined. However there are constant legal efforts being taken by activists
and protestors to make improvements to make a change in the legislature.

Legislative measure to ensure social relations

The Council for respondent Humbly argues Aim the honorable court that section 69 is a valid
exercise of the state‘s power to regulate social relations between citizens and to protect the
dignity and autonomy of individuals especially belonging to socially marginalized groups

It should be noted that this provision is designed to prevent fraudulent and deceptive practices in
the context of romantic relationships and to uphold the values of trust honesty and commitment.
In sivanantham v. the state 26It was held that the accused had sexual intercourse with the plaintiff
for several times by giving her a false promise to marry her.

The breach of promise also holds implications for a women‘s chastity and virginity which in the
eyes of the law is considered a form of property thus stealing the Chastity of a woman is
considered an injury to her reputation and sexual purity is deemed a valuable component of this
perceived property.

25
Bodhisattava Gautam v. Chakraborty 1996 AIR 922 1996 SCC

26
S.Sivanantham vs The State Crl.O.P.No.15954 of 2015

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

In Smt. Suman V. Surendra Kumar, AIR 2003 RAJ 155 27 In this instance dealt with the breach of
promise to Marry and the subsequent impact on the mental and emotional well being of the
aggrieved party in the court emphasized the need for general intent in making a promise to marry
and consider the emotional distress suffered by the grief party as a valid claim for damages.

2.2 Ranbir’s liability for deceitful conduct contrary to promise to marry

The Council correspondent argues that Ranveer made a promise to marry her on multiple
occasions like -

During their cohabitation , in the year 2022-2023 There are multiple WhatsApp chats from

boththe sides that both of them are planning a future together as a coupleon 24th December

,2024

When asked by their friends Ranveer cheerfully said “they knew that they are going to
marryeach other ,it‟s just a matter of time”

After the escalated argument between respondent and Ranveer . his conduct of Desertion and
refusal to fulfil that promise amount to deceitful conduct contrary to the promise to marry under
section 69 of the VNC

It is to be brought into notice that his conduct caused the respondent to suffer from emotional
distress loss of reputation and other harms and he is therefore liable for punishment under the
statue. Indian society placed immense importance on the institution of marriage framing it as a
sacred bond with societal and familiar implications.

The promise to marry was regarded as a solemn commitment and any breach was seen as a
betrayal not only the individuals but also to their families and in today‘s society the legal system
has taken influence by the societal norms and recognized and addressed breaches of such
promises within the framework of law amounting it to be a cognizable offense under VNC

27
Smt. Suman V. Surendra Kumar, AIR 2003 RAJ 155

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

Noting the aforesaid It becomes necessary and fundamental to hold Ranveer liable for his
decideful conduct under section 69 of the VNC.

Credibility of Karan a as witness

The counsel for respondent argues that Karan is a credible witness who can testify to Ranbir‘s
promise to marry her. Karan is her childhood friend and that he has no reason to fabricate any
evidence against Ranveer.

It is also considerable to note that the current was present at the Allege statement regarding the
promise to marry was made on 24th December 2023 therefore he can provide eyewitness
testimony which is usually considered as more reliable than hearsay evidence -

―In the case of State of Rajasthan vs. Chandu and others 28conviction based on sole testimony
of an interested eye witness can be made. The court held that it is prudent to corporate evidence
of the interested eye witness. The rule for such conviction is subjected to the limitation that the
testimony of such a witness is trustworthy and consistent the court can rely upon the deposition
of such witness.‖

In the judicial system eyewitness testimony plays an important role in the trial procedure for
maintaining justice in all criminal trials, it is necessary to reconstruct the facts from past events
determine the fate of the accused the details of such events are provided by the eyewitness which
helped them in reconstructing the incident this type of testimony can be particularly influential
when there is a lack of other supporting evidence or when contradicts other evidence offering a
unique perspective on the events in question.

29
In State of Punjab vs Gurmeet Singh, 1996 the Supreme Court held that the prosecutor was
reliable and thrustful witness as the testimony has no informative or blemish it added we have no
hesitation in acting upon a testimony alone without looking for any corrobation

28
State of Rajasthan vs. Chandu and others JT2002(10)SC427,
29
State of Punjab vs Gurmeet Singh, 1996 AIR 1393 1996 SCC

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

In another subsequent case- Ganesan V. State, 2020 30:In this case the appellant accused was
convicted for the offense punishable under POCSO Act and the Supreme Court held map the sole
eye witness is absolutely trustworthy and unblemished and her evidence is of sterling quality

Karan‘s testimony is consistent with other evidence presented in this case such as the Whatsapp
charts between Deepika and Ranveer

It does not appear that current has any bias or personal interest in the outcome of this case there
has no reason to fabricate evidence against Ranbir or support Deepika allegation unless he
believes them to be true.

In conclusion based on the above-mentioned factors it is highly likely that Karan‟s testimony is
credible and reliable therefore it is crucial that his testimony should be considered in this case to
ensure the justice is served

3. Whether electronic evidence is admissible as proof of intention?

3.1 What is electronic evidence?

Section 2(t) of the IT Act defines ‗electronic record‘ which means data, record or data generated,
image or sound stored, received or sent in an ‗electronic form‘ or microfilms or
computergenerated microfiche.

Section 4 of the IT Act defines Legal recognition of electronic records

Where any law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter is— (a)
rendered or made available in an electronic form; and (b) accessible so as to be usable for a
subsequent reference.

30
Ganesan V. State, 2020 10 SCC 573

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

Indian Evidence Act sections

Section 61 :Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or
digital record in the evidence on the ground that it is an electronic or digital record and such
record shall, subject to section 63, have the same legal effect, validity and enforceability as other
document.

Section 63 Electronic records as documentary evidence:

In order to keep pace with the digital era, electronic and digital records have been specifically
brought under the ambit of ‗documentary evidence‘ in the BSA. This includes electronic records
on emails, server logs, documents on computers, laptops or smartphones, messages, websites,
locational evidence, and voice mail messages stored on digital devices. The BSA provides that
such records will have the same legal effect, validity, and enforceability as any other document.
As a result of such a classification, electronic or digital records are now categorized as ‗primary
evidence‘ under Section 57 of the BSA. Under the IEA, primary evidence referred to original
records, whereas secondary evidence referred to records that can prove the original records'
contents. This clearly acknowledges the shift from traditional paper-based systems to
contemporary electronic communication and data storage forms. However, despite electronic
records being primary evidence under the BSA, a ‗certificate of authentication‘ (similar to the
certificate contemplated under Section 65B of the IEA) is still required to be issued as per the
Schedule to the BSA. While such a requirement may be with the aim of preventing tampering,
this still raises questions as to the effectiveness of classifying the same as primary evidence.
It is also pertinent to highlight that the BSA has omitted references to its territorial extent,
possibly in order to overcome admissibility related challenges pertaining to evidence generated
outside India (especially digital evidence).

3.2 Admissibility of such evidence in court of law

Digital evidence or electronic evidence is any probative information stored or transmitted in

digital form that a party to a court case may use at trial. Before accepting digital evidence it is
vital that the determination of its relevance, veracity and authenticity be ascertained by the court
and to establish if the fact is hearsay or a copy is preferred to the original.

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GAUTAM BUDDHA UNIVESITY, INTRA MOOT, 2024

Justice Nariman also agreed with the view taken in Anvar v. Basheer 2014 10 SCC 473 31–
which held that Section 65B is a complete code in itself for the admissibility of electronic
evidence and shall not be affected by other provisions of the Evidence Act. Anvar v. Basheer also
held that – ―…if an electronic record as such is used as primary evidence under Section 62 of the
Evidence Act, the same is admissible in evidence, without compliance with the conditions in
Section 65-B of the Evidence Act.‖ Justice Nariman clarified that this dictum should be read by
omitting the words ―under Section 62 of the Evidence Act.” This is because Section 65B is a
complete code for electronic evidence and shall supersede other provisions such as Section 62.

Justice Nariman implies here that it is not necessary to refer to Section 62, as Section 65B(1)
itself distinguishes between the original electronic record and the secondary copies of the
electronic record, according to Indian evidence Act 1872

32
In Som Prakash vs. State Of Delhi 1974 AIR 989 the Supreme Court has rightly observed
that ―in our technological age nothing more primitive can be conceived of than denying
discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral
evidence only thereby discouraging the liberal use of scientific aids to prove guilt.‖ Statutory
changes are needed to develop more fully a problem-solving approach to criminal trials and to
deal with heavy workload on the investigators and judges.

Under Vishweshwara Evidence Act,1872 :

Electronic or digital evidence is any data that is stored or transmitted digitally is secondary
evidence. Electronic records' evidentiary value is generally examined under section 65A and 65B

The sections state that if the four conditions listed are fulfilled, any information contained in an
electronic record which is printed on paper, stored, recorded or copied in an optical media,
created by a computer is considered to be a document and is admissible in proceedings without
any additional confirmation or production of the original, as evidence of any contacts of the
original or any facts expressed in that, which direct evidence would be acceptable.
31
Anvar v. Basheer 2014 10 SCC 473
32
Som Prakash vs. State Of Delhi 1974 AIR 989

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The four conditions alluded to above are:

1. The computer output containing such information ought to have been delivered by the
computer when the computer was utilized consistently to store, or handle data for any
exercises routinely carried on during that period by the individual having legal command
over the utilization of the computer.
2. During such period, data of the kind contained in the electronic record was consistently
fed into the computer in the ordinary course of such exercises.
3. Throughout the material piece of such period, the computer must be working
appropriately. On the off chance that the computer was not appropriately working during
such period, it should be indicated that this didn't influence the electronic record or the
precision of the contents.
4. The data contained in the electronic record ought to be as reproduced or derived from
such data fed into the computer in the ordinary course of such activities.

Our respondent Deepika had submitted original device which contained the communications,
which was utilized routinely for the purpose of communication with petitioner Ranveer during
the course of their relationship, to the police officials voluntarily with Karan providing witness
testimony for the same evidence stating that Ranver had conveyed on multiple occasions his
intention to marry Deepika to her .

3.3 Mens rea

Digital forensics is critical to law enforcement in resolving conflicts in both civil and criminal
cases by providing vital and relevant evidence. Examples of its applicability in civil cases
include those involving Intellectual Property theft, Industrial espionage, Employment disputes,
Bankruptcy investigations, etc. Examples of its applicability in criminal cases include
cybercrimes such as unauthorised hacking, theft of data, Digital Fraud investigations, Cyber
terrorism, DDOS attacks, etc.

However, Digital Evidence can assist in confirming the validity of alibis or witness statements.

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Sometimes digital evidence can be used towards establishing mens rea as well. The social media
posts of a person, as well as internet search histories can provide indications as to what a person
was thinking or looking in to before committing a crime. For example, there are many instances
where killers look up guides to killing people or how to purchase illegal weapons.

Proof of intention although it may be conclusive and is considered highly circumstantial even
if it is obtained legally by the investigating agencies cannot conclusively provide an evidentiary
value solely.

However, electronic evidence is admissible as proof of intention when obtained legally from the
complainant voluntarily or on orders of the court and is on the original device which was used
for such purpose.

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PRAYER

In the light of arguments advanced and authorities cited, the Respondent humbly submits that the
Hon‘ble Court may be pleased to adjudge and declare that:

(1) The special leave petition should be dismissed,

(2) Ranveer should be punished under section 69 of VNC

(3) Deepika should be compensated for any amount that the court deems fit for emotional
damages caused

AND / OR

Any other just and equitable order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray

Submitted respectfully on the behalf of the Respondent

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