Вы находитесь на странице: 1из 36

-

IN THE HONBLE SUPREME COURT OF INDIA, AT


NEW DELHI
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO.______

In the Matter of:

STATE OF RAJASTHAN...............................................APPELLANT

VERSUS

BHAWAR LAL & OTHERS...RESPONDENT

-MEMORIAL on behalf of the Appellant-

-3rd FYLC-RANKA NATIONAL MOOT COURT COMPETITON, 2013-

INDEX

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

S .No.
1.

PARTICULARS
INDEX OF AUTHORITIES

PAGE NO.
4 OF 35

Statutes Referred

Books Referred

Websites Referred

List of Cases

Other Authorities like Articles, Reports


Etc.

2.
3.
4.
5.

List of Abbrevation

STATEMENT OF JURISDICTION
SYNOPIS OF FACTS
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
1.

THE

HONBLE

HIGH

COURT

8 OF 35
9 OF 35
11 OF 35
13 OF 35
WAS

NOT

JUSTIFIED IN REDUCING THE SENTENCE OF


THE ACCUSED AND THE SENTENCE OF THE
ACCUSED SHOULD BE INCREASED.

1.1. Sentence Given By The Honble Sessions Court


Was Justified.
1.2. Statutory provision.
1.3. No special and adequate reasons given by high
court.
1.4. Violation of right to life.
1.5. Current scenario.
1.6. Negative effects of rape on victim.
2.

WHETHER THE MAIN ACCUSED BHAWARLAL


SHOULD BE AWARDED LIFE IMPRISONMENT
FOR THE WHOLE OF HIS LIFE OR NOT.

2.1. Breach Of Trust By The Accused Bhawarlal.


3.

THE HONBLE HIGH COURT WAS ERRONEOUS


IN REDUCING THE QUANTUM OF SENTENCE
AND COMPENSATION.

3.1. Inhuman Conduct Of The Accused


Page 2 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

3.2.

The conduct
Corroboration of the medical report
The compensation awarded to the

complainant by the hon'ble high court was not


justified.
Power Under 357 And 357a Of The

Code Not Exercised


Non Application Of Mind In Awarding
Sentence

4.

THE HONBLE SESSIONS COURT HAS BEEN


ERRONEOUS IN DECLARING SHRI TRIBHUVAN
AS A MINOR

6.

PRAYER

35 OF 35

INDEX OF AUTHORITIES

STATUTES REFERRED:
1. THE INDIAN PENAL CODE, 1860 (ACT 45 OF 1860)
2. CODE OF CRIMINAL PROCEDURE, 1973 (ACT 2 OF 1974)
3. THE INDIAN EVIDENCE ACT, 1872 (ACT 1 OF 1872)
4. THE CONSTITUTION OF INDIA, 1950

Page 3 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

BOOKS REFERRED:
1. K.D. Gaur, A Textbook on the Indian Penal Code, 4th Edition, 2012, Universal Law
Publishing Co. Pvt. Ltd.
2. Ratanlal & Dhirajlal, Law of Crimes, Vol. 2, 25th Edition, 2004, Bharat Law House, New
Delhi.
3. Glanville Williams, Textbook of Criminal Law, 2nd Edition, Universal Law Publishing
Co. Pvt. Ltd., 1999.
4. K.D. Gaur, Criminal Law: Cases and materials, 6th Edition,2009, Lexis Nexis
Butterworth Wadhwa, Nagpur.
5. Sarkar SC, Code of Criminal Procedure, Vol. 2, 10th Edition, 2012, Lexis Nexis
Butterworth Wadhwa, Nagpur.
6. C.K Thakkar Takwani, Criminal Procedure, 3rd Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.
7. R.V. Kelkars, Criminal Procedure, 5th Edition, Eastern Book Company, Lucknow, 2008
8. Ratanlal and Dhirajlal, The Law of Evidence, 24th Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2011.

WEBSITES REFERRED:
1. www.supremelaw.in
2. www.indiankanoon.com
3. www.lawyersclubindia.com
4. http://www.vakilno1.com/
5. www.ncrb.nic.in
6. www.lawyerservices.com
7. www.manupatra.com
8. www.findlaw.com

LIST OF CASES:
1. Ankush Shivaji Gaikwad v. State Of Maharashtra, (2013) 6 SCC 770
2. Baldev Singh and Anr. v. State of Punjab, (1995) 6 SCC 593
Page 4 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

3. Balraj v. State of U.P. , (1994) 4 SCC 29


4. Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 4684.
5. Bodhisattwa Gautam v. Subhra Chakroborty, (1996) 1 SCC 490.
6. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220
7. Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. , (2007) 6 SCC 528
8. Dinesh @ Buddha v. State of Rajasthan, (2006) 3 SCC 771.
9. Essa @ Anjum Abdul Razak Memon v. State Of Maharashtra 2013 SC, Criminal Appeal
no. 1178 of 2007.
10. Every v. Miles, 1964 AC 261
11. Harbans Singh v. State of Punjab, AIR 1984 SC 1594.
12. Hari Kishan & Anr v. Sukhbir Singh & Ors, (1988) 4 SCC 551
13. Hari Singh v. Sukhbir Singh and Ors., (1988) 4 SCC 551
14. Kamal Kishore etc v. State of Himachal Pradesh, AIR 2000 SC 1920.
15. Maya Devi (Dead) through LRs and Ors. v. Raj Kumari Batra (Dead) through LRs and
Ors., (2010) 9 SCC 486.
16. Meet Singh v. State of Punjab, AIR 1980 SC 1141.
17. Mohd.Iqbal & Anr v. State of Jharkhand 2013 (9) SCALES 86.
18. Om Prakash v. State of Rajasthan, (2012) 5 SCC 201
19. Ravji @ Ram Chandra v. State of Rajasthan, AIR 1996 SC 787.
20. Sangeet & Anr. v. State of Haryana, (2013) 2 SCC 452
21. Sarwan Singh and others v. State of Punjab, (1978) 4 SCC 111
22. Shimbhu & Anr v. State Of Haryana, 27 August, 2013 SC, Criminal appeal no.12781279 OF 2013
23. State of Andhra Pradesh v. Polamala Raju @ Rajarao, (2000) 7 SCC 75
24. State of Andhra Pradesh v. Polamala Raju, AIR 2000 SC 2854.
25. State of Andhra Pradesh v. Vasudeva Rao, AIR 2004 SC 960.
26. State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153
27. State of Karnataka v. Krishnappa, AIR 2000 SC 1470.

Page 5 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

28. State of M.P. v. Babbu Barkare, (2005) 5 SCC 413.


29. State of M.P. v. Babulal, AIR 2008 SC 582.
30. State of M.P. v. Bala @ Balaram, AIR 2005 SC 3567.
31. State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
32. State of Madhya Pradesh v. Killu AIR 2006 SC 777
33. State of Madhya Pradesh v. Pappu, (2008) 16 SCC 758.
34. State of Madhya Pradesh v. Santosh Kumar, AIR 2006 SC 2648.
35. State of Maharashtra v. Arjun Laxman Jogadiya alias Abdul Rehman Shaikh, 11th august
2006, Criminal Appeal no. 243/2006, Bom.
36. State of Punjab v. Prem Sagar and Ors., (2008) 7 SCC 550.
37. State of Rajasthan v. Gajendra Singh, (2008) 12 SCC 720.
38. State of Rajasthan v. Vinod Kumar, 2012 (2) JCC 1482.
39. State of U.P. v. Babul Nath, 1994 SCC (6) 29: 1995 (1) CCC 17.

OTHER AUTHORITIES LIKE ARTICLES, REPORTS ETC.


1. Spence Feingold, One rape in every 20 minutes in country, Times Of India, TNN,
August 25, 2013.
2. Dhananjay Mahapatra, Rape is not a matter for compromise: SC, Times of India, TNN,
August 28, 2013.
3. Clinard, M.B & Yeager P.C., Corporate Crime. New York: The Free Press, (1980).
4. Edwin H. Sutherlands, White Collar Crime in America: An Essay in Historical
Criminology.
5. L.A. Knafla, J. Cockburn, & E. Dwyer (Eds.), Criminal Justice History: An
international annual, Westport, CT: Meckler, pp. 131.

Page 6 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

LIST OF ABBREVIATIONS
ABBREVIATION

ACTUAL TERM

Section

Sections

Paragraph

Paragraphs

F.I.R

First Information Report

&

And

Ld.

Learned

I.P.C
Cr.PC
v.

Indian Penal Code


Criminal Procedure Code
Versus

U/s

Under Section(s)

I.O.

Investigating Officer

P.C.
N.C.T

Police Custody
National Capital Territory

SC

Supreme Court

HC

High Court

SCC

Supreme Court Cases

Para.

Paragraph

Page 7 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

STATEMENT OF JURISDICTION

THE APPELLATE IN THE PRESENT CASE HAS BEEN EMPOWERED BY ARTICLE


136 OF THE CONSTITUTION OF INDIA, 1949 TO INITIATE THE PRESENT
PROCEEDINGS IN THE HONBLE SUPREME COURT OF INDIA. THE APPELLATE
MOST HUMBLY AND RESPECTFULLY SUBMITS TO THE JURISDICTION OF THE
HONBLE SUPREME COURT IN THE PRESENT MATTER.

Page 8 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

SYNOPSIS OF FACTS
THE INCIDENT
Ms Shalini, the victim, aged 20 years, was a nursing student living in a Government Hostel.
On 30th June 2009, when the complainant came out of her room to the lawn she was
kidnapped by Shri Bhawarlal, night watchman at the hostel and by Shri Tribhuvan, who
forcibly carried her to the night watchman's room at the point of knife where Shri Mohan and
Shri Sohan, were waiting heavily drunk. The victim was tied with cloth and was forcibly
given drugs so as to render her helpless and senseless. She was forcibly put on the mattress
and was mercilessly raped by the accused one by one, who gave her the most brutal treatment
that was possible. After the offence, the victim was thrown naked and in unconscious state
over the backside of the boundary wall of the hostel, where she was spotted by PW-2 and
PW-3.
FIR
The complainant was carried to the nearest police station where FIR was lodged and case
under 376 [2] (g) and 363 of the Indian Penal Code was registered against the four
accused persons.
JUDGMENT BY LD. SESSIONS COURT
The Sessions Judge, Jaipur, by judgement dated 30.12.2010 convicted the accused after
holding that the prosecution has proved its case fully based upon the witnesses, medical
reports and material ceased. The accused were convicted as followsa) Shri Bhawarlal, night watchman to undergo rigorous imprisonment for life;
b) Shri Mohan, student, to undergo Rigorous imprisonment for 10 years;
c) Shri Sohan, student, to undergo Simple imprisonment for a period of 7 years; and
d) Shri Tribhuvan was declared a minor.
e) Damages were awarded to the victim of Rs. 10 lacs.
Page 9 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Aggrieved by the said judgement, the complainant lodged an appeal with the Hon'ble High
Court.

JUDGMENT BY LD. HIGH COURT


The Hon'ble High Court said that the learned Sessions Court was justified in coming to the
conclusion that the four accused have committed the heinous act, which could have lifelong
effect on the body and mind of the victim. However, the Hon'ble High Court taking a lenient
view of the matter reduced the sentence awarded by the Sessions Court to the following
period:a) Shri Bhawarlal to undergo Rigorous imprisonment of 10 years;
b) Shri Mohan to undergo Simple imprisonment for 5 years;
c) Shri Sohan to the period already undergone by the accused; i.e. 2 years and 5 months.
d) Damages were reduced to Rs 50,000/-.
The appeal of the accused was allowed in above terms and appeal of the complainant to
enhance sentence and damages was dismissed, being bereft of any substance.
APPEAL TO THE SUPREME COURT
Being aggrieved by the aforesaid orders, the complainant filed an appeal before the Honble
Supreme Court and this court issued notice pertaining to the quantum of sentence and
damages. This Court also issued notice as to why the sentence awarded by the High Court to
the three accused be not restored to that awarded by the sessions court and why the accused
Bhawarlal not to undergo life imprisonment for whole of the convicts life.

Page 10 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

SUMMARY OF ARGUMENTS
1. WHETHER

THE HONBLE HIGH COURT WAS JUSTIFIED IN REDUCING THE SENTENCE

OF THE ACCUSED OR NOT.

The Honble High Court has been erroneous in reducing the sentence of the accused less then
that prescribed in the statute. Firstly, the sentence given by the learned Sessions Court is fair
and justified and the same is in accordance with law. Secondly, there have been no special
and adequate reasons given by the Honble High Court for reducing the sentence of the
accused. Thirdly, there has been a gross violation of right to life of the victim and the accused
should be heavily punished. Also, crimes against women have been on the rise in our nation
and rape destroys the entire physiology of women, so the High Court should not have taken a
lenient view on the matter. Hence, the Honble High Court has been erroneous in reducing
the sentence of the accused.

2. WHETHER

THE

MAIN

ACCUSED

BHAWARLAL

SHOULD

BE

AWARDED

LIFE

IMPRISONMENT FOR THE WHOLE OF HIS LIFE OR NOT.

The main accused Bhawarlal should be awarded life imprisonment for the whole of his life
and not for 14 or 20 years. As being the security guard of the hostel he was entrusted to
protect the girls but on the contrary he broke that trust and kidnapped the victim along with
other accused and gang raped her in an inhuman manner. For this degrading act, Bhawarlal
should be awarded life imprisonment for whole of his life.
3. WHETHER THE QUANTUM OF SENTENCE AND DAMAGES GIVEN BY THE HONBLE HIGH
COURT WERE FAIR AND JUSTIFIED OR NOT.

The Honble High Court was erroneous in reducing the sentence and damages awarded by the
Sessions court to the victim. Taking into account the factors such as the conduct of the
accused and the severity of the crime in the present matter, the accused should get the
maximum punishment possible provided in the statutes, i.e. life imprisonment and should be
liable to give compensation to the victim under 357 and 357 A of the criminal procedure
code. The court should apply its mind and take into consideration all the facts and
Page 11 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

circumstances and award appropriate compensation to the victim and severe punishment to
the accused.
4. WHETHER SHRI TRIBHUVAN WAS RIGHTLY DECLARED AS A MINOR BY THE COURT OF
SESSIONS OR NOT.

The Honble Sessions Court was erroneous in declaring Shri Tribhuvan as a minor because of there
have been contradictions in the certificates produced by him in the court and the driving license found
in the car during the course of investigation. The Honble Supreme Court has recently given
guidelines that if there is a confusion regarding minority of the accused, the medical report shall be
taken into consideration in deciding the juvenility of the accused. In the present case, the medical
report has declared Shri Tribhuvan above eighteen years. Therefore, Shri Tribhuvan should not be
dealt under the juvenile justice act.

ARGUMENTS ADVANCED

Page 12 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

CONTENTION 1: THE HONBLE HIGH COURT WAS NOT JUSTIFIED IN REDUCING THE
SENTENCE OF THE ACCUSED AND THE SENTENCE OF THE ACCUSED SHOULD BE
INCREASED.
The sentence of imprisonment given to the convicts by the Honble High Court is insufficient
and not in accordance with law. Firstly the crime they have committed is in gross violation of
right to life of the victim and to the principles of the society. Secondly, the Honble High
Court in its judgement has ignored the minimum sentencing policy prescribed in 376 (2) of
the Indian Penal Code (herein after IPC) and have given a sentence which is less than the
minimum prescribed without giving any adequate and special reasons for the same. Thirdly,
the crimes of sexual assault have been on the rise in our nation, hence the court should not
take any lenient view in such types of criminal matters. Also one should be aware about the
psychological harm which a rape victim suffers in our society. The security of girls should be
of utmost importance in the nation.

1.1. SENTENCE GIVEN BY THE HONBLE SESSIONS COURT WAS JUSTIFIED


In the present case, Ms. Shalini, the prosecutrix, on 30th June 2009, came out of from her
room in the hostel to the front lawn. From there, the main accused Bhawarlal who was
working as Night watchman in the hostel and Shri Tribhuvan a spoilt multimillonare student
kidnapped her at about 11 pm and forcibly carried her to the Night watchmans quarters
behind the hostel, which was a lonely place and where two students namely Mohan and
Sohan were drinking heavy liquor. The victim was given an intoxicant with drugs, forcibly
put on the mattress and was raped one by one by Tribhuvan, Mohan, Sohan and Bhawarlal.
After gang rape, the victim was thrown naked outside the backside of the boundary wall of
the hostel at about 4.00 AM where she was spotted by PW-2 and PW-3.
Aforesaid case was registered in the police station for the offences under 363 and 376 [2]
(g) of the Indian Penal Code against four accused persons named above. After registration of
the FIR police arrested the accused persons and investigation was carried out wherein certain
articles were ceased from the room of the Night watchman under Exhibit-1. Site map of the
place of incident was prepared which was Exhibit-2 and under Exhibit-3 were the
photographs of the Night watchmans room with its contents. The medical examination of the
complainant as well as the accused persons was conducted.
Page 13 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Police investigation, articles seized from the place of incidence and medical report of the
complainant as well as accused persons, makes it evident that the offence is committed
brutally by the four accused persons. The Sessions judge after holding that prosecution has
proved its case fully supported by independent witnesses and medical evidence on record
apart from Sperm Detection Test, Stained clothes, Mattresses with blood etc. convicted the
accused.1 The learned session judge has examined and carefully considered the material on
record and convicted the accused persons.
Therefore, it is contended that the sentence pronounced against each accused and
compensation granted to the prosecutix by the learned Sessions court is justified and fully in
accordance with law.

1.2. STATUTORY PROVISION


The offence in the present matter is committed under 376 [2] (g) of the I.P.C. which
stipulates:
Whoever commits a gang rape shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be for life and shall also be liable to
fine
Further the section says:
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment impose a sentence of imprisonment of either description for a term of less than ten
years
In cases of gang rape, minimum sentence prescribed by the statute is rigorous imprisonment
for ten years, but it may extend to rigorous imprisonment for life.
The legislative mandate to impose a sentence, for the offence of gang rape, for a term which
shall not be less than 10 years, but which may extend to life and also to fine reflects the
intent of strictness in sentence. Recourse to the proviso can be had only for "special and
adequate reasons" and not in a casual manner as already laid down by the Supreme Court in

1 6 moot preposition

Page 14 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Harbans Singh v. State of Punjab2; State of Andhra Pradesh v. Vasudeva Rao3; State of
Madhya Pradesh v. Babulal4; and State of Rajasthan v. Gajendra Singh5.
There are no extenuating or mitigating circumstances available on record which may justify
imposition of any sentence less than the prescribed minimum on the accused.
A three judge bench comprising of C.J, P.Sathasivam in Shimbhu & Anr v. State Of Haryana 6
said:
The law on the issue can be summarized to the effect that punishment should always be
proportionate/ commensurate to the gravity of offence. Religion, race, caste, economic or
social status of the accused or victim or the long pendency of the criminal trial or offer of the
rapist to marry the victim or the victim is married and settled in life cannot be construed as
special factors for reducing the sentence prescribed by the statute. The power under the
proviso should not be used indiscriminately in a routine, casual and cavalier manner for the
reason that an exception clause requires strict interpretation.
In Ravji @ Ram Chandra v. State of Rajasthan7 the apex court held that the court will be
failing in its duty if appropriate punishment in not awarded for a crime which has been
committed not only against the individual victim but also against the society to which the
criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant
but it should conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public abhorrence and it
should respond to the societys cry for justice against the criminal.

2 AIR 1984 SC 1594


3 AIR 2004 SC 960
4 AIR 2008 SC 582
5 (2008) 12 SCC 720.
6 27 August, 2013 SC, Criminal Appeal no.1278-1279 OF 2013
7 AIR 1996 SC 787.

Page 15 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

In State of U.P. v. Babul Nath8 sexual assault was committed on the victim, a girl of about
five years. The trial court convicted the accused but the High Court acquitted him. In appeal,
The Supreme Court was constrained to observe that the acquittal of the accused was totally
unmerited and such unmerited acquittals, particularly in crimes against girl child encourage
the criminals. The court then said: The courts have, therefore, to be sensitive while dealing
with such cases but the High Court in the case appears to be far from being sensitive while
appreciating the material on record.
The court in State of Madhya Pradesh v. Pappu9 considered the similar question of validity
and justifiability of reduction of sentence awarded by the Trial Court to the accused convicted
under 376(1), 324 and 452 by the High Court. The court relying upon its earlier
observations in State of M.P. v. Ghanshyam Singh10 and State of M.P. v. Babbu Barkare11
observed that undue sympathy towards the accused by imposition of inadequate sentence
would do more harm to the justice system by undermining the confidence of society in the
efficacy of law and society could not long endure under such serious threats. The courts
therefore are duty bound to award proper sentence having regard to the nature and manner of
execution or commission of the offence. This court highlighted the dangers of imposition of
sentence without due regard to its effects on the social order and said:
The court will be failing in its duty if appropriate punishment is not awarded for a crime
which has been committed not only against the individual victim but also against the society
to which the criminal and victim belong. The punishment to be awarded for a crime must not
be irrelevant but it should be consistent with the atrocity and brutality with which the crime
has been perpetrated, the enormity of the crime warranting public abhorrence and it should
respond to the societies cry for justice against the criminal. If for the extremely heinous
crime, the deterrent punishment is not given, the case of deterrent punishment will lose its
relevance.

8 1994 SCC (6) 29: 1995 (1) CCC 17.


9 (2008) 16 SCC 758
10 (2003) 8 SCC 13
11 (2005) 5 SCC 413

Page 16 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

1.3. NO SPECIAL AND ADEQUATE REASONS GIVEN BY HONBLE HIGH COURT


There is no doubt as to the offence of gang rape being committed by the four accused
persons. The Honble Sessions Court and the Honble High Court have already held that the
four accused persons have committed the heinous act, against the nursing student of the
hostel, the complainant in the present matter.12 Taking into account the medical evidence and
the witness on record, one can easily conclude that the offence is committed mercilessly and
with much brutality. The question remains for consideration is whether there could be any
justification for the Learned High Court in reduction for sentences and that too without
recording any reason.
The Counsel submits that the sentence awarded to the four accused for their crimes is less as
compared to the hardships and trauma that the appellant had to endure. Sexual violence is a
major concern globally especially in India. It has profound negative effects on its victims and
on societies at large.
Attention is drawn to the judgment of State of Rajasthan v. Vinod Kumar13 where the
Supreme Court said that the statutory requirements for awarding the punishment less than
seven years is to record adequate and special reasons in writing. Dictionary meanings of the
word adequate are commensurate in fitness, sufficient, suitable, equal in magnitude and
extent, and fully. Special reasons means exceptional; particular; peculiar; different from
others; designed for a particular purpose, occasion, or person; limited in range; confined to a
definite field of action.
Also, in the same case14 it was held that awarding lesser sentence then the minimum
prescribed under 376 of the I.P.C. is an exception to the general rule. Exception clause is to
be invoked only in exceptional circumstances where the conditions incorporated in the
exceptional clause itself exist. It is a settled legal proposition that exceptional clause is
always required to be strictly interpreted even if there is hardship to any individual. The court
while exercising the discretion in the exceptional clause has to record exceptional reasons
for restoring to the proviso. Recording of such reasons is sine qua non for granting the

12 Moot Preposition 7
13 2012 (2) JCC 1482
14 State of Rajasthan v. Vinod Kumar 2012 (2) JCC 1482

Page 17 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

extraordinary relief. What is adequate and special would depend upon several factors and no
straight jacket formula can be laid down.
Furthermore, in Meet Singh v. State of Punjab15 this court while dealing with the expression
special reasons held that it means special to the accused concerned. The court has to weight
the reasons advance in respect of each individual accused whose case is taken up for
awarding sentence. The word special has to be understood in contradistinction to word
general or ordinary. Thus, anything which is common to a large class governed by the
same statute cannot be said to be special to each of them.

In State of Punjab v. Prem Sagar and Ors16 Court observed:


To what extent should the Judges have discretion to reduce the sentence so prescribed under
the statute has remained a vexed question. However, in India, the view always has been that
the punishment must be proportionate to the crime. Applicability of the said principle in all
situations, however, is open to question. Judicial discretion must be exercised objectively
having regard to the facts and circumstances of each case.
Moreover in State of Madhya Pradesh v. Santosh Kumar17 this court held that in order to
exercise the discretion of reducing the sentence, the statutory requirement is that the court has
to record adequate and special reasons in the judgment and not fanciful reasons which would
permit the court to impose a sentence less than the prescribed minimum. The reason has not
only to be adequate but also special. What is adequate and special would depend upon several
factors and no straightjacket formula can be indicated.18
In Kamal Kishore etc v. State of Himachal Pradesh19 the apex court has held that the
expression adequate and special reasons indicates that it is not enough to have special
15 AIR 1980 SC 1141
16 (2008) 7 SCC 550
17 AIR 2006 SC 2648
18 See Harbans Singh v. State of Punjab AIR 1984 SC 1594; State of Andhra Pradesh v. Vasudeva
Rao AIR 2004 SC 960; State of M.P. v. Babulal AIR 2008 SC 582; State of Rajasthan v. Gajendra
Singh (2008) 12 SCC 720.

Page 18 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

reasons, and adequate reasons disjunctively. There should be a conjunction of both for
enabling the court to invoke the discretion. Reasons which are general or common in many
cases cannot be regarded as special reasons.20
Further, in State of M.P. v. Bala @ Balaram21 the court while dealing with the issue observed:
The crime here is rape. It is a particularly heinous crime, a crime against the society, a
crime against human dignity, one that reduces a man to an animal. The penal statute has
prescribed a minimum and a minimum punishment for an offence under 376 IPC. To view
such an offence once it is proved, lightly, is itself an affront to society. Though the award of
maximum punishment may depend upon the circumstances of the case, the award of
maximum punishment, generally, is imperative. The power under the proviso is not to be used
indiscriminately or routinely. The reason must be relevant to the exercise of such discretion
vested in the court. The mere existence of discretion by itself does not justify it exercise.
Thus in a case like the instant one, in order to impose the punishment lesser than prescribed
in the statute, there must be special and adequate reasons given by the judge after considering
all the aggravating and mitigating circumstances in which crime has been committed.
However, in the present matter before us, no such reasons have been recorded by the court in
doing so, and thus, the court failed to ensure compliance of such mandatory requirement but
awarded the punishment lesser than the minimum prescribed under the I.P.C. Such an order is
violative of the mandatory requirement of law and defeats the legislative mandate.
However, the Honble High Court in the present matter has itself stated that the incident will
have a lifelong effect on the body and mind of the complainant.

1.4. VIOLATION OF RIGHT TO LIFE


Article 21 of the Constitution of India Act, 1949 provides right to life to citizens and persons
of India. However, right to life does not mean simply breathing or respiration; life is not a
19 AIR 2000 SC 1920
20 See Bhupinder Sharma v. State of Himachal Pradesh AIR 2003 SC 4684; State of Andhra
Pradesh v. Polamala Raju AIR 2000 SC 2854.
21 AIR 2005 SC 3567

Page 19 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

mere animal existence. It includes right to live with human dignity. Offences such as murder
or rape however, take away a persons right to life which is a Fundamental Right. Breach of
Human Rights such Fundamental Rights should be appropriately punished. But in the present
case a heinous crime i.e. rape was committed not by one but by four men, a womans most
important possession her dignity was taken away and yet the sentences given to the accused
by the High Court were not sufficient enough as compared to the gravity of the situation.
Gang rape is a rare form of offence which is gross and an affront to the human dignity and
society.
Not only was a gang rape committed but it was committed by one of the staff of the Hostel
itself i.e. the night watchman. Here there is clear breach of trust by the accused Bhawarlal.
There was apparent breach of trust which was imposed in him and he should be heavily
punished for that. The offence was not only barbaric but also inhuman. Not only this but after
facing such a traumatic experience, after such a heinous and inhuman act was committed the
culprits were sentenced with a punishment of less than 10 yrs. It can be clearly seen that the
High Court gave a punishment which was less than the minimum punishment prescribed
under 376(2) (g).
1.5. CURRENT SENARIO
It is of utmost importance to throw a light on the present provision of the rape law after The
Criminal Law Amendment Act, 2013. With the new bill passed by the parliament, the law of
rape stands substantially changed. This new provision was also taken into consideration it the
case of Shimbhu & Anr v. State Of Haryana22 by presiding C.J, P.Sathasivam. According to
the amendment, the offence of gang rape is defined under 376 D of the I.P.C. which states:
Where a person is sexually assaulted by one or more persons constituting a group or
acting in furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of sexual assault, regardless of gender

and shall be punished with

rigorous imprisonment for a term which shall not be less than twenty years, but which
may extend to life and shall mean imprisonment for the remainder of that persons natural
life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim
22 27 August, 2013 SC, CRIMINAL APPEAL NOS.1278-1279 OF 2013

Page 20 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Provided that any fine further imposed under this section shall be paid to the victim.

The law of gang rape now prescribes a minimum punishment of twenty years of rigorous
imprisonment which stands in complete contrast to the judgment delivered by the honble
high court. The Courts, shoulder a greater responsibility while trying an accused on charges
of rape. They must deal with such cases with utmost sensitivity. The Supreme Court of India
has recently said that rape is not a matter of compromise.
National Crime Records Bureau (NCRB) has some horrifying statistics to share according to
which every 20 minutes, a women is raped somewhere in India. Not only that, crimes against
women have increased by 7.1% nationwide since 2010, and child rape cases have increased
by 336% in the last 10 years. The gang rape of the Mumbai photo journalist has shaken the
nations conscience once again. How many more Nirbhayas is this nation going to accept?
How many girls would be hunted by such hyper-sexed creatures?
In just 15 days following the December 16 incident, there were 45 rapes and 75 cases of
molestation in National Capital Territory of Delhi and not to mention the countless number of
cases that went unreported.23 This court has to set a precedent in this case so that nobody after
this should dare to commit such a heinous act.
In light of such clearly laid down facts and circumstances, it contended that the Honble High
Court was erroneous in dismissing the complainants appeal. Protection of society and
deterring the criminal is the avowed object of law and that is required to be achieved by
imposing an appropriate sentence.
To show mercy in the case of such a heinous crime would be a travesty of justice and the plea
for leniency is wholly misplaced. The High Court exhibited lack of sensitivity towards the
victim of rape and the society by reducing the substantive sentence in the established facts
and circumstances of the case.

1.6. NEGATIVE EFFECTS OF RAPE ON VICTIM

23 Spence Feingold, TNN, One rape in every 20 minutes in country, Times Of India, August 25,
2013.

Page 21 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Those who are victims of rape suffer from a large range of physical and psychological harm.
NCVS data reveal that about 25% of rape victims are physically injured during the attack
(other than direct injuries resulting from the rape). Injuries ranged from black eyes and
bruises to broken bones and other severe bodily harm. In addition to injuries, many rape
victims incur other medical problems such as sexually transmitted disease and pregnancy.
Because of their long term nature, the psychological effects of rape often are more severe
than the physical harm. Immediate emotional reactions include shame, intense fear, anxiety,
stress and fatigue. Victims may develop a host of serious psychological problems, including
eating disorders, suicidal feelings, depression and obsessive compulsive disorder (especially
washing rituals).24The cluster of emotional and psychological responses to rape and sexual
assault is clinically recognised as Rape Trauma Syndrome (RTS).25
In the present case the Counsel would like to point out that the victim has not only been hurt
physically but she has lost her future. She has lost the chance to have a normal education in a
college like other students; she has lost her chance to study and graduate from the college she
currently is enrolled in, even if she does go to a college she might have to start all over again.
These are just the hardships related to her studies now coming to her future if she does not
get a proper education she will not be able to get a job. The trauma that she is going through
will not let her public relations skills to develop, a prerequisite for her vocation. It will be
devastating for her as well as her parents who have invested so much in her and her future.
Rape cannot be treated only as sexual crime but it should be viewed as a crime involving
aggression which leads to the domination of the prosecutrix. In case of rape besides the
psychological trauma, there is also social stigma attached to the victim. Majority of rapes
are not sudden occurrences but are generally wellplanned as in this case. Social stigma has
a devastating effect on rape victim. It is violation of her right to privacy. Such victims need
physical, mental, psychological and social rehabilitation. Physically she must feel safe in the
society, mentally she needs help to restore her lost self esteem, psychologically she needs

24 Clinard, M.B & Yeager P.C., Corporate Crime. New York: The Free Press, (1980).
25 Edwin H. Sutherlands, White Collar Crime in America: An Essay in Historical Criminology. In
L.A. Knafla, J. Cockburn, & E. Dwyer (Eds.), Criminal Justice History: An international annual,
Westport, CT: Meckler, pp. 131.

Page 22 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

help to overcome her depression and socially, she needs to be accepted back in the social
fold. Rape is blatant violation of womens bodily integrity.26

CONTENTION 2: WHETHER THE MAIN ACCUSED BHAWARLAL SHOULD BE AWARDED


LIFE IMPRISONMENT FOR THE WHOLE OF HIS LIFE OR NOT.
The accused Bhawarlal was the night watchman of the hostel of the victim and there was
clear breach of trust on his part as he played the lead role in kidnapping and committing the
gang rape on the victim. Bhawarlal being Chowkidar/Night watchman was allotted one room
accommodation behind the back of the hostel. Bhawarlal was fully entrusted by the hostel
authorities since he was protector of the girl students who were doing nursing course while
living in the hostel. His duty was to maintain the belief of the hostel authorities in any
manner.

2.1. BREACH OF TRUST BY THE ACCUSED BHAWARLAL


Bhawarlal acted in contradiction of the trust imposed upon him by the hostel authorities and
just for some minor financial benefits he betrayed them and acted in convenience of the other
accused persons for the monstrous crime which they have committed in this case. It is ironic
that the one who was supposed to safeguard the victim is the one who devoured her and left
her to die naked behind the hostel wall. Bhawarlal took an amount of Rs. 10,000/- for
commission of rape upon the prosecutrix while summer vacations were to commence in the
hostel and he participated in the kidnapping of the complainant from the lawn of the hostel to
his allotted room and thereafter he committed rape upon the complainant along with three
other accused persons. Bhawarlal not only committed forcible rape upon the complainant but
indulged in throwing the complainant while she was unconscious from his room across the
boundary wall in naked condition in the morning on the day. Bhawarlal has committed
heinous crime and acted in inhuman manner hence he was rightly convicted by the court of
Sessions for life imprisonment. His sentence is fully justified. It is also noticed that main
accused Bhawarlal on one occasion took money of Rs. 5000/- for himself and Rs. 50,000/for other student of the hostel and took the other student to a 5 star hotel. The monstrous act
26Mohd.Iqbal & Anr v. State of Jharkhand 2013 (9) SCALES 86.

Page 23 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

committed by the accused was very much calculated and pre-planned. The offence was not
only barbaric but also inhuman.
In the case of Dhananjoy Chatterjee27an 18 year old school going girl was brutally raped by
the security guard of her apartment the Supreme Court saidThe sordid episode of the security guard, whose sacred duty was to ensure the protection
and welfare of the inhabitants of the flats in the apartments, should have subjected the
deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his
transfer on her complaint, makes the crime even more heinous. If the security guards
behave in this manner, then who will guard the guards? The faith of the society by such a
barbaric act of the guard gets totally shaken and its cry for justice becomes loud and clear.28
In the case of State of Maharashtra v. Arjun Laxman Jogadiya alias Abdul Rehman Shaikh29
the rape was committed by a person who could be trusted upon by the victim, it fell into the
category of the rarest of rare cases. Considering the facts and circumstances of the present
case, it can be said that the crime was of heinous nature and with the breach of trust on part of
Bhawarlal it becomes all the more obvious that this case was no ordinary case but rarest of
rare. Supporting the above argument, the judgement in the case of Dhananjoy Chatterjee
said:
In our opinion, the measure of punishment in a given case must depend upon the atrocity of
the crime; the conduct of the criminal and the defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in which the courts respond to the
societys cry for justice against the criminals. Justice demands that courts should impose
punishment befitting the crime so that the courts reflect public abhorrence of the crime. The
courts must not only keep in view the rights of the criminal but also the rights of the victim of
crime and the society at large while considering imposition of appropriate punishment.
Therefore, the accuse Bhawarlal, mastermind of the whole act, deserves no less punishment
than that of the imprisonment for life.

27DhananjoyChatterjee alias Dhana v. State of West Bengal 1994 SCC (Cri.) 358.
28Ibid.
29Criminal Appeal No. 243 of 2006

Page 24 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

CONTENTION 3: THE HONBLE HIGH COURT WAS ERRONEOUS IN REDUCING THE


QUANTUM OF SENTENCE AND COMPENSATION.
The Honble High court by its impugned judgment dated 20.5.2013 has allowed the appeal of
the accused by the reducing the sentence and damages and dismissed the appeal of the
complainant. The Honble High Court was erroneous in reducing the quantum of sentence
and compensation given by the Sessions Court.

3.1. INHUMAN CONDUCT OF THE ACCUSED


In the case of Dinesh @ Buddha v. State of Rajasthan30, it was held by this court that the
measure of punishment in a case of rape must depend upon the conduct of the accused and
the gravity of the criminal act.
THE CONDUCT:
The complainant in the present matter was forcibly carried in the chowkidars room behind
the hostel and her body and mouth were tied with a cloth. Bhawarlal, the main accused held a
knife in his hand to threaten the complainant. This act of the accused amounted to the offence
of abduction in the present matter. After the victim was forcibly carried in the chowkidars
room behind the hostel the complainant was given some intoxicant with drugs, and was
forcibly put on the mattress and then raped one by one by the four accused. After the gang
rape, the complainant was thrown naked at the backside of the wall of hostel. She was lying
in an unconscious state for an hour from 4am to 5am when spotted by Shri Ramlal (PW-2)
and Shri Shyamlal (PW-3) who have stated that the complainant was in naked condition and
there were injuries on the private parts, abrasions and bruises on the breasts and cheeks,
oozing of the blood and that she was in a serious condition. 31 There was a possibility that the
complainant could have easily died due to such a horrifying act by the accused. This act could
have easily resulted in the victims death.

CORROBORATION OF THE MEDICAL REPORT:


30 (2006) 3 SCC 771
31 4 Moot Preposition

Page 25 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Further, the medical jurist in the report stated that blood was seen in vagina and hymen of the
complainant was found to have been ruptured and damaged. The Medical Jurist confirmed all
the relevant reports and stated that the gang rape had a dehumanizing effect on the victim.
In such highly terrible circumstances the court cannot at all take a lenient view of the matter.
Crimes of violence upon women have to be severely dealt with. The manner in which the
offence is committed is highly inhuman and degrading. It is hence contended that the
complainant was miserably tortured by the accused which is already shown by the medical
report.
In State of Karnataka v. Krishnappa32, the question was whether High Court was justified, in
circumstances of the case to reduce the sentence of 10 years rigorous imprisonment imposed
by the trial court on the respondent for an offence under section 376, I.P.C. to 4 years
rigorous imprisonment. The accused was a married man of 49 years and victim of his sexual
lust was an innocent helpless girl of 7/8 years of age at that time. The medical evidence
provided by the doctor showed the cruel nature of the act, the accused was not entitled to any
leniency. The High Court justified the reduction of sentence on the ground that the accused
respondent was "unsophisticated and illiterate citizen belonging to a weaker section of the
society" that he was "a chronic addict to drinking" and had committed rape on the girl while
in state of "intoxication" and that his family comprising of "an old mother, wife and children"
were dependent upon him. Restoring the sentence of 10 years awarded by the trial court, the
apex court held these factors did not justify recourse to the proviso to section 376 [2]. The
measure of punishment in a case of rape cannot depend upon the social status of the victim or
the accused. It must depend upon the conduct of the accused.
In Dhananjoy Chatterjee v. State of W.B.33 the apex court observed that a shockingly large
number of criminals go unpunished thereby increasingly encouraging the criminals and in the
ultimate, making justice suffer by weakening the systems credibility. The imposition of
appropriate punishment is the manner in which the court responds to the societys cry for
justice against the criminal. Justice demands that courts should impose punishment befitting
the crime so that the courts reflect public abhorrence of the crime. The court must not only
keep in view the rights of the criminal but also the rights of the victim of the crime and the
society at large while considering the imposition of appropriate punishment.
32 AIR 2000 SC 1470
33 (1994) 2 SCC 220

Page 26 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

The Supreme Court in a recent case of the State of Madhya Pradesh v. Killu34 held that the
sentence of rape reduced by High Court in appeal to the extent of the period of nearly two
years and four months (already served) as against 7 years of a minimum prescribed
imprisonment without assigning any satisfactory reason much less adequate and special
reasons for reducing the sentence to a term which is far below the prescribed minimum is
clearly illegal.
It is hence contended that in such highly terrible circumstances the court cannot at all take a
lenient view of the matter and that the accused should be awarded with the highest
punishment provided in the statutes.

3.2.

THE COMPENSATION AWARDED TO THE COMPLAINANT BY THE


HON'BLE HIGH COURT WAS NOT JUSTIFIED.

The reduction in compensation by the High Court from Rs. 10 lacks to a nominal amount of
Rs. 50,000/- awarded under section 357 and 357A of the Criminal Procedure Code was not
fair and justified.
In the present matter the prosecutrix was subject to gang rape in a brutal manner. The accused
firstly kidnapped the prosecutrix, then tied her with cloth, was given intoxicant at knife point
and was subjected to rape by all the four accused. As stated in the facts, the prosecutrix was
found naked in the morning with several serious injuries and it had a dehumanizing effect on
the victim. The victim was both physically and psychologically injured by the act and is
entitled to just and fair compensation under section 357 and 357A of the Criminal Procedure
Code.
This court in State of H.P. v. Shree Kant Shekari35 has viewed rape as not only a crime against
the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the
most cherished possession of a woman i.e. her dignity, honour, reputation and not the least
her chastity. It destroys as noted by the Supreme Court in Bodhisattwa Gautam v. Subhra
Chakroborty36 the entire psychology of a woman and pushes her into deep emotional crises. It
is a crime against basic human rights, and is also violative of the victim's most cherished of
34 AIR 2006 SC 777
35 (2004) 8 SCC 153

Page 27 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

the fundamental rights, namely, the right to life contained in Article 21 of the Constitution.
The courts are expected to deal with cases of sexual crime against women with utmost
sensitivity. Such cases need to be dealt with sternly and severely.
An English case Every v. Miles37 also emphasized the moral responsibility of the offender to
provide such compensation to the girl whose life prospects are ruined as the accused people
can afford to pay was to be paid and in addition to the sentence.
POWER UNDER 357 AND 357A OF THE CODE NOT EXERCISED
The Court in the present matter have failed to exercise the power given to them by section
357 and 357A of the Criminal Procedure Code and have not been able to give proper
compensation to the victim.
In Hari Singh v. Sukhbir Singh and Ors.38, this Court lamented the failure of the Courts in
awarding compensation to the victims in terms of Section 357 (1) of the Cr.P.C. The Court
recommended to all Courts to exercise the power available under Section 357 of the Cr.P.C.
liberally so as to meet the ends of justice. The Court said:
"Sub-section (1) of Section 357 provides power to award compensation to victims of the
offence out of the sentence of fine imposed on accused. It is an important provision but
Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the
Court to award compensation to victims while passing judgment of conviction. In addition to
conviction, the Court may order the accused to pay some amount by way of compensation to
victim who has suffered by the action of accused. It may be noted that this power of Courts to
award compensation is not ancillary to other sentences but it is in addition thereto. This
power was intended to do something to reassure the victim that he or she is not forgotten in
the criminal justice system. It is a measure of responding appropriately to crime as well of
reconciling the victim with the offender. It is, to some extent, a constructive approach to
crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend
to all Courts to exercise this power liberally so as to meet the ends of justice in a better way."
36 (1996) 1 SCC 490
37 1964 AC 261
38 (1988) 4 SCC 551

Page 28 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

In Sarwan Singh and others v. State of Punjab39,Balraj v. State of U.P.40, Baldev Singh and
Anr. v. State of Punjab41, Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr.42, this
Court held that the power of the Courts to award compensation to victims under Section 357
is not ancillary to other sentences but in addition thereto and that imposition of fine and/or
grant of compensation to a great extent must depend upon the relevant factors apart from
such fine or compensation being just and reasonable.
The Supreme Court has recommended to all courts to exercise this power liberally so as to
meet the ends of justice.43

NON APPLICATION OF MIND IN AWARDING SENTENCE


Honble High Court by its impugned judgment has reduced the amount of damages from Rs.
10 lacks awarded by the Sessions Court to Rs. 50000/- only. By awarding such a nominal
amount of compensation to a victim who has been subjected to gruesome rape has shown that
the court failed to apply its mind in giving compensation. The court also failed to record any
proper reasoning for the reduction in the sentence.
Reference may be made to the decision of this Court in State of Andhra Pradesh v. Polamala
Raju @ Rajarao44 where a three-judge bench of this Court set aside a judgment of the High
Court for non-application of mind to the question of sentencing. In that case, this Court
reprimanded the High Court for having reduced the sentence of the accused convicted under
Section 376, IPC from 10 years imprisonment to 5 years without recording any reasons for
the same. This Court said: ....We are of the considered opinion that it is an obligation of the
39 (1978) 4 SCC 111
40 (1994) 4 SCC 29
41 (1995) 6 SCC 593
42 (2007) 6 SCC 528
43 Lal Singh Bhikabhai Chaudhary v. State of Gujraat 2004 (4) Crimes 542 (Guj); Suganthi Suresh
Kumar v. Jagdeeshan AIR 2002 SC 681
44 (2000) 7 SCC 75

Page 29 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

sentencing court to consider all relevant facts and circumstances bearing on the question of
sentence and impose a sentence commensurate with the gravity of the offence...
In a recent case of Supreme Court, Ankush Shivaji Gaikwad v. State Of Maharashtra45, the
Supreme Court observed:
cases to Section 357, it appears to us that the provision confers a power coupled with a
duty on the Courts to apply its mind to the question of awarding compensation in every
criminal case. We say so because in the background and context in which it was introduced,
the power to award compensation was intended to reassure the victim that he or she is not
forgotten in the criminal justice system. The victim would remain forgotten in the criminal
justice system if despite Legislature having gone so far as to enact specific provisions
relating to victim compensation, Courts choose to ignore the provisions altogether and do not
even apply their mind to the question of compensation. It follows that unless Section 357 is
read to confer an obligation on Courts to apply their mind to the question of compensation, it
would defeat the very object behind the introduction of the provision.
Section 357 Cr.P.C. confers a duty on the Court to apply its mind to the question of
compensation in every criminal case. It necessarily follows that the Court must disclose that
it has applied its mind to this question in every criminal case. In Maya Devi (Dead) through
LRs and Ors. v. Raj Kumari Batra (Dead) through LRs and Ors 46, this Court held that
disclosure of application of mind is best demonstrated by recording reasons in support of the
order or conclusion.
The amendments to the Cr.P.C. brought about in 2008 focused heavily on the rights of victims
in a criminal trial, particularly in trials relating to sexual offences. Though the 2008
amendments left Section 357 unchanged, they introduced Section 357A under which the
Court is empowered to direct the State to pay compensation to the victim in such cases where
.the compensation awarded under Section 357 is not adequate for such rehabilitation, or
where the case ends in acquittal or discharge and the victim has to be rehabilitated. Under
this provision, even if the accused is not tried but the victim needs to be rehabilitated, the
victim may request the State or District Legal Services Authority to award him/her
45 (2013) 6 SCC 770
46 (2010) 9 SCC 486

Page 30 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

compensation. This provision was introduced due to the recommendations made by the Law
Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively
The following observation of this Court in Sangeet & Anr v. State of Haryana47, could be
said to apply to other sentences as well, particularly the award of compensation to the victim:
In the sentencing process, both the crime and the criminal are equally important. We have
unfortunately, not taken the sentencing process as seriously as it should be with the result
that in capital offences, it has become judge-centric sentencing rather than principled
sentencing.
The Supreme Court in Ankush Shivaji Gaikwad v. State Of Maharashtra48 observed that:
While the award or refusal of compensation in a particular case may be within the Court's
discretion, there exists a mandatory duty on the Court to apply its mind to the question in
every criminal case. Application of mind to the question is best disclosed by recording
reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving
application of mind, the Court ought to have the necessary material which it would evaluate
to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to
consider the question of award of compensation would logically arise only after the court
records a conviction of the accused. Capacity of the accused to pay which constitutes an
important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry
albeit summary unless of course the facts as emerging in the course of the trial are so clear
that the court considers it unnecessary to do so. Such an enquiry can precede an order on
sentence to enable the court to take a view, both on the question of sentence and
compensation that it may in its wisdom decide to award to the victim or his/her family.
There are crimes that cannot be measured in term of monetary compensation especially in
case of rape that affect the victim psychologically, socially and physically. These cannot be
weighed to sufficiently avenged but to consider such means one can never draw the line. In
case of rape, the trauma under which the victim suffer become endless from very start of
offence to the reporting to police and until the case is being decided but all is not, she has to
suffer in society, workplace and even to her marital relation also. Due to victimization she is
47 (2013) 2 SCC 452
48 Ankush Shivaji Gaikwad v. State Of Maharashtra (2013) 6 SCC 770

Page 31 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

left in such condition where there may be chance of repeated several abuse. It is true that
money cannot repair the chastity and purity which is precious asset of the Indian women,
nevertheless if sufficient compensation, assistance and rehabilitation is granted to her, she
could not have to depend on the mercy of anybody. Therefore crime against women,
mandatory compensation, assistance and rehabilitation programmes must be formulated.

CONTENTION 4: THE HONBLE SESSIONS COURT HAS BEEN ERRONEOUS IN DECLARING


SHRI TRIBHUVAN AS A MINOR
Shri Tribhuvan cannot be tried in the Court as a juvenile because of the gravity of the crime
committed and also keeping in mind the mental capacity to understand the nature and the
consequences of the crime committed.
It is humbly submit that there was ample evidence of Shri Tribhuvan being a major as per the
Medical Certificate yet the Sessions Court, Jaipur has considered him to be a juvenile
ignoring the Medical Certificate.
The fact that the driving licence of Tribhuvan, which was found along with the car 49 proves
that Tribhuvan was a major. As for acquiring a driving licence from the authority one should
be major and he also has to produce proof of him being a major. So the presence of a driving
licence in the name Tribhuvan clearly indicates that he was above 18 years at the time of
incident.
Juvenile or a child means a minor i.e. a person who has not completed 18 years of age.50
However when an accused who said to have committed heinous offences such as rape or
murder has ceased to be a minor i.e. when the accused has reached the age of 18 years then
he cannot seek protection against the aforementioned Act. However the ambiguity of this
issue arises when the accused age is either near 18 years but not quiet completely 18 such as
in the present case where the accused Shri Tribhuvan was alleged to be of the age 17 years
and 10 months. On being questioned he produced his birth certificate, his horoscope and
matriculation certificate wherein he was found as being of 17 years and 10 months of age.
49 2.1 Moot Preposition
50 Section 2 (k), Juvenile Justice (Care and Protection of Children) Act, 2000

Page 32 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

However, in the Medical Certificate he had been declared as above 18 years and the presence
of driving licence also indicates that he was above 18 years. The question that arises in this
case is whether the birth certificate and other certificates are to be taken into account or
should the opinion of an expert Medical Jurist be considered paramount.
A similar question was raised in the case of Om Prakash v. State of Rajasthan51, where it was
contended that the accused was a minor at the time incident for which reliance was based on
school certificate and on the other hand the medical report showed him of age above 18
years. This court then observed:
while the courts must be sensitive in dealing with the juvenile who is involved in cases of
serious nature like sexual molestation, rape, gang rape, murder and host of other offences,
the accused cannot be allowed to abuse the statutory protection by attempting to prove
himself as a minor when the documentary evidence to prove his minority gives rise to a
reasonable doubt about his assertion of minority. Under such circumstance, the medical
evidence based on scientific investigation will have to be given due weight and precedence
over the evidence based on school administration records which give rise to hypothesis and
speculation about the age of the accused.
This court further added that, the benefit of the principle of benevolent legislation can be
made applicable in favor of only those delinquents who undoubtedly have been held to be a
juvenile which leaves no scope for speculation about the age of the alleged accused.
In Om Prakash v. State of Rajasthan52 it was held that considering the relevance and value of
the medical evidence, the doctor s estimation of age although is not a sturdy substance for
proof as it is only an opinion, such opinion based on scientific medical test like ossification
and radiological examination will have to be treated as a strong evidence having
corroborative value while determining the age of the alleged juvenile accused.
It is submitted that even in the criminal jurisprudence prevalent in India, the age of
responsibility of understanding the consequences of one's actions had been recognized as
12 years in the Indian Penal Code. Section 82 of the Code provides that nothing is an
offence which is done by a child under seven years of age. Section 83 of the Code is also
51 Om Prakash v. State of Rajasthan (2012) 5 SCC 201
52 Ibid

Page 33 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

referred, which provides that nothing is an offence which is done by a child above seven
years of age and under twelve, who has not attained sufficient maturity of understanding to
judge the nature and consequences of his conduct on a particular occasion. Even under the
Indian Criminal Jurisprudence the age of understanding has been fixed at 12 years, which
commensurate with the thinking of other countries, such as the United States of America,
Great Britain and Canada.
In regard to Canada, the Youth Criminal Justice Act, 2003, as amended from time to time,
where the age of criminal responsibility has been fixed at twelve years. Referring to
Section 13 of the Code of Criminal Procedure of Canada, the same is in pari materia with the
provisions of Section 83 of the Indian Penal Code. In fact, according to the Criminal Justice
Delivery System in Canada, a youth between the age of 14 to 17 years may be tried and
sentenced as an adult in certain situations. Even in Canada the Youth Criminal Justice Act
governs the application of criminal and correctional law to those who are twelve years old or
older, but younger than 18 at the time of committing the offence, and that, although, trials
were to take place in a Youth Court, for certain offences and in certain circumstances, a youth
may be awarded an adult sentence.
Comparing the position in USA and the Juvenile Justice and Delinquency Prevention Act,
1974,while in several States, no set standards have been provided, reliance is placed on the
common law age of seven in fixing the age of criminal responsibility, the lowest being six
years in North Carolina. The general practice in the United States of America, however, is
that even for such children, the courts are entitled to impose life sentences in respect of
certain types of offences, but such life sentences without parole were not permitted for those
under the age of eighteen years convicted of murder or offences involving violent crimes and
weapons violations.
In England and Wales, children accused of crimes are generally tried under the Children
and Young Persons Act, 1933, as amended by Section 16(1) of the Children and Young
Persons Act, 1963. Under the said laws, the minimum age of criminal responsibility in
England and Wales is ten years and those below the said age are considered to be doli
incapax and, thus, incapable of having any mens rea, which is similar to the provisions of
Sections 82 and 83 of Indian Penal Code.

Page 34 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

Another case commonly known as The Bombay Blasts Case53 was also referred where a
juvenile who was tried and convicted along with adults under the Terrorist and Disruptive
Activities Act (TADA), was denied the protection of the Juvenile Justice (Care and Protection
of Children) Act, 2000, on account of the serious nature of the offence.
In the present matter Tribhuvan was the one who planned all this and convinced all the other
accused in committing this offence which shows the maturity of mind and the capacity to
understand the graveness of the offence. For the commission of such a brutal and a monstrous
he cannot be considered as a juvenile. This court in Om Prakash v. State of Rajasthan54,
observed:
if the conduct of an accused or the method and manner of commission of the offence
indicates an evil and a well planned design of the accused committing the offence which
indicates more towards the matured skill of an accused than that of an innocent child, then in
the absence of reliable documentary evidence in support of the age of the accused, medical
evidence indicating that the accused was a major cannot be allowed to be ignored taking
shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the
course of justice as statutory protection of the Juvenile Justice Act is meant for minors who
are innocent law breakers and not accused of matured mind who uses the plea of minority as
a ploy or shield to protect himself from the sentence of the offence committed by him.
In the present case therefore, not only the Medical Certificate and the presence of driving
licence completely was ignored but also the Sessions Court, as has been referred above did
not take into consideration the mental capability of the accused, Shri Tribhuvan to understand
the nature and consequences of his act; nor did it take into consideration the gravity of the
offence committed and how heinous the crime was.

53 Essa @ Anjum Abdul Razak Memon v. State Of Maharashtra, 2013 SC, Criminal Appeal no. 1178
of 2007.
54 Supra, N.49

Page 35 of 36

3RD FYLC RANKA NATIONAL MOOT COURT COMPETITION, 2013

PRAYER

THEREFORE IN THE LIGHT

OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN

AND AUTHORITIES CITED, THE

HONBLE SUPREME COURT MAY BE PLEASED TO:

I.

DECLARE that the High Court was not justified in reducing the sentence of the

II.

accused in the present matter.


DECLARE that the quantum of sentence given by the Honble High Court was

III.

not fair and justified.


DECLARE that the compensation given to the prosecutrix was not fair and to

IV.

provide physical, mental, psychological and social rehabilitation to the victim.


HOLD that the main accused Bhawarlal deserved life imprisonment for the
heinous crime committed by him.

AND PASS ANY OTHER RELIEF THAT THE

HONBLE SUPREME COURT MAY BE PLEASED TO

GRANT AND FOR THIS ACT OF KINDNESS THE COUNSELS FOR THE APPELLANT SHALL FOREVER
HUMBLY PRAY.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE APPELLANT


Sd/Page 36 of 36