INTRA MOOT COURT COMPETITION, 2019 P (X)

INTRA MOOT COURT COMPETITION, 2019

BEFORE
THE HON’BLE SUPREME COURT OF INDIANA

SPECIAL LEAVE PETITION (Crl.) No………. / OF 2019

[UNDER ARTICLE 136 OF CONSTITUTION OF INDIANA]

CASE CONCERNING OFFENCES UNDER SECTION 376 AND 417

OF INDIAN PENAL CODE (IPC)

IN THE MATTER OF:-

1. THE STATE OF DWELHI
2. MISS. VRITIKA
...PETITIONER

VERSUS

MOHIT SRIVASTAVA
...RESPONDENT

WRITTEN SUBMISSIONS ON THE BEHALF OF PETITIONER

MOST RESPECTFULLY SUBMITTED TO THE HON’BLE SUPREME

COURT OF INDIANA
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Memorial on behalf of Petitioner

TABLE OF CONTENTS
Index of Authorities …3

Statement of Jurisdiction …5

Statement of Facts …6

Statement of Issues …8

Summary of Arguments …9

Arguments Advanced …10

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INDEX OF AUTHORITIES

PRECEDENTS CITED:-
1. Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
2 . Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314
3. Kathi RaningRawat v. The State of Saurashtra (1952) AIR 991.
4. Pritam Singh v. The State, (1950) AIR 169.
5. Sripur Paper Mills v. Commissioner of Wealth Tax (1970) AIR 1520.

6. Delhi Judicial Service Association vs. State of Gujarat (1991) SCR (3) 936

7. Mohd. Hussain Umar KochraEtc vs K. S. Dalipsinghji&Anr (1969) SCC (3) 429

8. SalehaKhatoon vs. State of Bihar (1989) CRILJ 202

9. Renu Yadav vs. Madhusudan Etawadi (2002) MPHT 43

10. Vijayan Pillai vs. State of Kerala 2012 SCC OnLine Ker 9087

11. Anurag Soni Vs. State of Chhattisgarh 2019 SCC OnLine SC 509

12. Kanumukkalla Krishnamurthy Vs. State of Andhra Pradesh AIR 1965 SC 333

13. BMW India Pvt. Ltd. Vs. State of Andhra Pradesh (2012) 2 ALD (Cri) 211

14. P. Bhanumathy and Anr. Vs. Premlatha 1979 CriLJ 257

15. State of Kerala Vs. A. Pareed Pillai (1972) 3 SCC 661

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TEXT BOOKS REFERRED

1. PSA Pillai’s Criminal Law, 12th Edition

2. Ratanlal &Dhiraj Lal, Law of Evidence
3. M.P. Jain, Indian Constitutional Law, 12th edition, 2016, Lexis Nexis
4. Criminal Manual, Universal Law Publishing Company, 2015
5. V.N. Shukla’s, Constitution of India, Twelfth Edition, Eastern Book Company

STATUTES REFERRED

1. The Code of Criminal Procedure, 1973

2. The Indian Evidence Act, 1872
3. The Indian Penal Code, 1860

WEBSITES REFERRED

1. www.scconline.com
2. www.manupatra.com
3. www.indiankannon.com
4. www.casemine.com

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LIST OF ABBREVIATIONS

AIR All India Reporter

ALL Allahbad High Court

Bom. LR Bombay Law Report

Cal Calcutta High Court

CBI Central Bureau of Investigation

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

Ed. Edition

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

SEC. Section

U.O.I. Union of India

V. Versus

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indiana has jurisdiction in this matter under Art-
136
of the Constitution of Indiana, 1950 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 Supreme Court has a jurisdiction to entertain and hear appeals by granting
special leave against any kind of judgment or order made by any Court or Tribunal
in any proceedings and the exercise of this power is left entirely to the discretion of
the Supreme Court.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS,

CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE.

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STATEMENT OF FACTS

1. The appellant, Mohit and the respondent Vritika worked at ‘Today My Trip Pvt
Ltd’, in Dwelhi. They both worked for the marketing team and somehow they exchanged
their phone numbers and started talking afterwards on regular basis and developed a
healthy relationship.

2. After working for more than 10 months, the respondent left the job. Then the
petitioner also quit. They both started working at the same company named
VoyageworldblogPvt.Ltd.

3. The Respondent on one fine day proposed the petitioner and she accepted hisproposal.

4. On 25.02.19 the respondent informed Vritika that it was his birthday. They both
decided to celebrate it together at Hurugram.

5. Then they both went to Hurugram. They checked in 7 wonders guest house to cut
the cake on the occasion of hisbirthday.

6. The Respondent allegedly informed Vritika that he wanted to marry her and on that
ground he had solicited sexual favors from Vritika.

7. Vritika relying upon the veracity of the appellant’s assurance to marry her consented
for the sexual intercourse. They did not meet for 4-5days.

8. The Respondent went to Trangalore for 2 months. The prosecutrix called him on his
cell phone and learnt from the respondent’s brother that he is married and has a son.
However, the wife and son did not reside withhim.

9. The respondent met Vritika at Silk Nagar and confirmed that he was married and
has a son and sought pardon fromher for the concealment of such material information.

10. On 20.06.2019, Vritika on a regular health checkup got to know that she is pregnant
and informed the same to the Respondent Mohit Srivastava. He assured her that he would
obtain divorce sooner and then he would marry her.

11. Vritika realized that he was ignoring her and lodged an F.I.R. against him under
376, 493 of IPC. The District & Sessions court Convicted Mohit under Section 376 and
Section 417 of IPC.

12. Thereafter, Mohit filed an appeal against the decision of the Court of the District and
Session Judge, in the Dwelhi High Court where he was acquitted under section 376 of IPC
and convicted him under 417, IPC and aggrieved by the decision, the petitioner has filed the
special leave petition under article 136 ofCOI

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STATEMENTS OF ISSUES

-I-
Whether the special leave petition is maintainable before the hon’ble Supreme Court?

-II-
Whether the respondent is punishable for the offence of Rape under section 376 of IPC?

-III-
Whether the respondent is punishable for Cheating under section 417 of IPC?

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SUMMARY OF ARGUMENTS
-I-
Whether the special leave petition is maintainable before the Hon’ble Supreme Court?
It is humbly submitted before this Hon’ble Court that the Special Leave Petition against the
judgment of the Hon’ble High Court (hereinafter as HC) is maintainable under Article 136 of
the Constitution of India. It is contended that the jurisdiction of Supreme Court (hereinafter as
SC) under Article 136 can always be invoked when a substantial question of law is involved
in the matter.
The jurisdiction conferred under Art. 136 on the SC is a corrective one and not a restrictive
one. It is the residuary power of SC to do justice where the court is satisfied that there is
injustice to be perpetuated. In the present case, the question of law involved in appeal is of
recurring nature which has been raised in plethora of cases. Hence, it is humbly submitted
before this Hon’ble Supreme Court of India that the matter involves substantial question of
law and hence entitled to be maintainable.

-II-
Whether the respondent is punishable for the offence of Rape under section 376 of IPC?
It is most humbly submitted before this Hon’ble Supreme Court that respondent had sexual
intercourse with the prosecutrix on the false promise of marriage. Moreover, the consent so
obtained for it is vitiated as it was obtained under the misconception of fact that the accused
will marry the prosecutrix and relying on veracity of assurance, the prosecutrix consented for
the sexual intercourse. Hence, the accused has committed the offence of rape and must be
convicted under section-376, IPC.

-III-
Whether the respondent is punishable for Cheating under section 417 of IPC?
It is most humbly submitted before this Hon’ble Supreme Court of Indiana that the
respondent is punishable for punishment of cheating under Section 417 of IPC. A dishonest
concealment is a deception within the meaning of this Section. In the present case, the
accused concealed the material fact that he is already married and his marriage is registered
under the provisions of the Hindu Marriage Act, 1955 and has a child begotten out of the
wedlock. Hence, he is liable to be convicted u/s 417 of IPC.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE SPECIAL LEAVE PETITIONBEFORE THIS COURT

IS MAINTAINABLE OR NOT?
It is humbly submitted that the Special Leave Petition against the judgment of Hon’ble High
Court is maintainable under Article 136 of the Constitution of India. It is contended that the
jurisdiction of Supreme Court under Article 136 can always be invoked when a question of
law of arises and even question of fact can also be a subject matter of judicial review under
Art.136.

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
ofIndia

(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
ArmedForces.

The Petitioner in the present case has filed the SLP under article 136 as the High Court has
acquitted the accused (respondent) for the offence of rape and hence is maintainable.

In Delhi Judicial Service Association vs. State of Gujarat1it was contended by the Supreme
Court that:-

“Under Article 136 there is no room for any doubt that this Court has wide power to interfere
and correct the Judgment and orders passed by any court or Tribunal in the country. In
addition to the appellate power, the Court has special residuary power to entertain appeal
against any order of any court in the country. The plenary jurisdiction of this Court to grant
leave and hear appeals against any order of a court or Tribunal, confers power of judicial
superintendence over all the courts and Tribunals in the territory of India including
subordinate courts of Magistrate and District Judge. This Court has, therefore, supervisory
jurisdiction over all courts in India.”

1
1991 SCR (3) 936

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1.2 THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND

HENCE ENTITLED TO BE MAINTAINABLE.

Where findings are entered without considering relevant materials and without following
proper legal procedure, the interference of the Supreme Court is called for 2. The expression
"substantial question of law" is not defined in any legislation. Nevertheless, it has acquired a
definite connotation through various judicial pronouncements. A Constitution Bench of the
Apex Court, while explaining the import of the said expression, observed that:
“The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in
the sense that it is not finally settled by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or calls for discussion of alternative views3”.
In the present case, the question of law involved in appeal is of recurring nature which has
been raised in plethora of cases. Hence, it is humbly submitted before this Hon’ble Supreme
Court of India that the matter involves substantial question of law and hence entitled to be
maintainable.
The Supreme Court is not precluded from going into the question of facts under article 136, if
it considers it necessary to do so4. The Article 136 uses the wording ‘in any cause or matter’.
This gives widest power to this court to dealwith any cause or matter5. It is, plain that when
the Supreme Court reaches the conclusion that a person has been dealt with arbitrarily or that
a court or tribunal has not given a fair deal to a litigant, then no technical hurdles of any kind
like the finality of finding of facts, or otherwise can stand in the way of the exercise of this
power6.
Further, in the exercise of its special leave appellate jurisdiction, the Supreme Court will not
interfere with the concurrent findings of the Courts below, unless, of course, the findings are
perverse or vitiated by error of law, or if there is gross miscarriage of justice.

The same contention is held in the case of Mohd. Hussain Umar Kochra Etc vs K. S.
Dalipsinghji&Anr7which is:-

2
Dale & Carrington Investment Ltd. v. P.K. Prathapan(2005) 1 SCC 212.
3
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314.
4
KathiRaningRawat v. The State of Saurashtra (1952) AIR 991.
5
Pritam Singh v. The State, (1950) AIR 169.
6
Sripur Paper Mills v. Commissioner of Wealth Tax (1970) AIR 1520.
7
1969 SCC (3) 429

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“This Court does not reappraise the evidence unless the findings are perverse or are
vitiated by any error of law or there is a grave miscarriage of justice”.

In this case there has been a miscarriage of justice as the accused was acquitted by the High
Court despite of the commission of rape. There has been injustice with the petitioner and the
petitioner being the aggrieved party seeks justice. Therefore she has approached the Hon’ble
Supreme Court of Indiana. Hence, it is the duty of the SC to reverse the error and injustice and
pass an appropriate, just and equitable order.

It is submitted that, the present facts in issue satisfy all of the above mentioned criteria. The
case involves the matter of general public importance and it directly and substantially affects
the rights of the parties as the order is erroneous and prejudicial to the interest of the
petitioners. Also, in the light of the facts that huge amount of cases aroused under same facts
and circumstances, it is submitted that the question is indeed an open question.

ISSUE 2: Whether the respondent is punishable for the offence of Rape under section
376 of IPC?
It is most humbly submitted before this Hon’ble Supreme Court of India that respondent
(Mohit) is punishable for the offence rape as he had sexual intercourse with the petitioner
(Vritika) on the false promise of marriage. Moreover, the consent so obtained for it is vitiated
as it was obtained under the misconception of fact that the accused will marry the prosecutrix
and relying on veracity of assurance, the prosecutrix consented for the sexual intercourse.
Hence, the accused has committed the offence of rape and must be convicted under section-
376, IPC.
Under Penal law Rape has been defined under “section 375” which reads asfollow:-

“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the seven following
descriptions:-

First: Against her will.

Secondly: Without her consent.

Thirdly: With her consent, when her consent has been obtained by putting her or any

person in whom she is interested in fear of death or of hurt.

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Fourthly: With her consent, when the man knows that he is not her husband, and that

her consent is given because she believes that he is another man to whom she is or

believes herself to be lawfullymarried.

Fifthly: With her consent, when, at the time of giving such consent, by reason of

unsoundness of mind or intoxication or the administration by him personally or through

another of any stupefying or unwholesome substance, she is unable to understand the

nature and consequences of that to which she gives consent.

Sixthly: With or without her consent, when she is under eighteen years of age.
Seventhly: When she is unable to communicate consent.
It is to be noted by the Hon’ble Supreme Court of India that in the present case, the accused
wanted to cut the cake on the occasion of his birthday and checked into a guest house. After
this, the respondent solicited sexual favors from the petitioner on the ground that he wanted to
marry her.

Therefore, it is pertinent to note that if consent be obtained by intimidation, force, mediated

imposition, circumvention, and misconception, it is so to be treated as a delusion, and not as a
deliberate or free act of mind. Thus, it can be clearly inferred that her consent was delusional
and it cannot be considered as a free consent.

In SalehaKhatoon vs. State of Bihar8, it was held that:-

“Consent always means free will or voluntary act. In this case consent was obtained on the
basis of some fraud and allurment or practising deception upon the lady on the pretext that
ultimately she will be married and under that pretext she allowed opposite party No. 2 to have
sexual intercourse with her. Therefore, this tainted consent or consent of this nature which is
based on deception and fraud, cannot be termed, prima facie, to conclude that it was 'with
consent'. It was a fraud that was practiced on her or she was deceived by giving false
assurance. Such type of consent must be termed to be consent obtained without her consent.
Consent obtained by deceitful means is no consent and comes within the ambit of ingredients of
the definition of rape.”

Here also the consent was obtained on the promise of marriage and on the same promise she
had allowed other party to have sexual intercourse with her. It must be noted that it was fraud
that was practiced on her and also she was deceived by giving false assurance ofmarriage.

8
1989 CRILJ 202

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In Renu Yadav vs. Madhusudan Etawadi9, it was contended that:-

“In the instant case the applicant gave her consent under a misconception and the non-
applicant No. 1 to whom it was given was aware of the existence of the misconception. As
the non- applicant No. 1 misrepresented the fact about his marital status and obtained the
consent of the applicant under a misconception of fact, it amounted to no consent as per
provisions of Section 90, IPC. In the present case also, the accused had sexual intercourse
under a misconception that he would marry her. The consent given under misconception is
no consent. The applicant succumbed to the lust of the non-applicant No. 1 on a
misrepresentation that he was a bachelor and that he would marry her.”
In instant case also, the respondent misrepresented and concealed the fact about his marital
status and obtained the consent of the petitioner under a misconception of fact. It amounts to no
consent according to section 90 of IPC. It was a consent given under the misconception of fact
and hence the respondent must be punished under section 376 of IPC.
In Vijayan Pillai vs. State of Kerala10it was held that:-

“Every consent to act involves submission but it by no means follows that a mere submission
involves consent.”

Here in this case, no doubt that the petitioner had accompanied with the respondent and
checked into a guest house but it doesn’t mean that she consented him for having sexual
intercourse with her. No doubt she submitted herself but every submission is not consent.
Hence, the respondent is punishable for rape under section 376 of IPC, 1860.

The SC in the case of Anurag Soni Vs. State of Chhattisgarh11, ruled that:-

sex on the pretext of marriage is rape and it tantamounts to a serious blow to the supreme
honour of a woman and offends both her esteem and dignity.

The court in its judgement said: "Rape is the most morally and physically reprehensible crime
in a society, an assault on the body, mind and privacy of the victim. While a murderer destroys
the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.
Rape reduces a woman to an animal, as it shakes the very core of her life."

9
2002 (4) MPHT 437
10
2012 SCC OnLine Ker 9087
11
2019 SCC OnLine SC 509

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ISSUE 3: Whether the respondent is punishable for Cheating under section 417 of
IPC?
It is most humbly submitted before this Hon’ble Supreme Court of India that respondent is
liable for punishment for cheating under Section 417, IPC.

Cheating is defined in section 415 of IPC which reads as follow:-

415. Cheating— Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent that any person
shall retain any property, or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this

section.

The essentials ingredients of cheating are:-

(1) Deception of anyperson

(2) (a) Fraudulently or dishonestly inducing thatperson-
(i) To deliver any property to any person,or
(ii) To consent with any person any person relating to any property;or
(b) Intentionally inducing that person to do which he would not do or omit to do,
and that the act or omission causes or is likely to cause damage or harm, to that
person in body, mind, reputation orproperty.

In Kanumukkalla Krishnamurthy Vs. State of Andhra Pradesh 12, it was observed that:
Cheating can be committed in either of the two ways described in S. 415 I.P.C. 'Deceiving a
person' is common in both, the ways of cheating. A person deceived may be fraudulently or
dishonestly induced to deliver any property or to consent to the retention of any property by
any person. The person deceived may also be intentionally induced to do or to omit to do
anything which he would not have done if not deceived and which act of his caused or was
likely to cause damage or harm in body, mind, reputation or property.

In BMW India Pvt. Ltd. Vs. State of Andhra Pradesh 13, the court held that:
The essential of charge of cheating is that the complainant should have been deceived.
Deception is one of the element of the offence of cheating. Explanation to Section 415 IPC
reads that dishonest concealment of a fact is deception within the meaning of the Section.

12
AIR 1965 SC 333
13
(2012) 2 ALD (Cri) 211

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In the present case, the respondent allegedly informed and assured the petitioner that he wanted
to marry her and on that ground he had solicited sexual favors from prosecutrix and relying on
the veracity of respondent’s assurance consented for the sexual intercourse. Thereafter they did
not see each other for 2-3 days. The respondent had been to Trangalore for one month.When
the petitioner tried to contact him on his cell phone, his brother received the phone and she
came to know from him that the respondent was a married man and having a son. However, the
wife and son of the respondent were not residing with him.

P. Bhanumathy and Anr. Vs. Premlatha 14

It was held that dishonest concealment is a deception.

Hence, All the above facts point out clearly that the respondent kept the petitioner in dark as he
had not disclosed or revealed the truth that he is already married and had a son begotten out of
the wedlock. The petitioner came to know about it from the brother of the respondent. The
respondent never disclosed the reality on his own.

This amounts to dishonest concealment on part of the respondent as when he was already
married and had a son and the divorce proceedings were going on, he proposed the prosecutrix
knowing the fact very well she is deeply in love and emotionally attached with him. Also, as
mention in the fact sheet that they both share a healthy relationship with each other. He took
the advantage of this and requested sexual favors from thepetitioner on the assurance that he
will marry her.

He later assured the petitioner, that he would marry her only after 3 months, when he would
obtain divorce from his wife. She informed the respondent about her pregnancy. It must be
noted that divorce cases take time to be diposed off. Such a promise was not based on reality
and can be said to be a false promise.

State of Kerala Vs. A. Pareed Pillai 15, it was held that

“.. To hold a person guilty of the offence of cheating, it has to be shown that his intention was
dishonest at the time of making the promise.”

14
1979 CriLJ 257

15
(1972) 3 SCC 661

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In the instant case, the behavior of the respondent shows that, he only gave mere assurances to
the petitioner. However he did nothing substantial to prove that he actually wanted to marry
the petitioner. The accused had no intention to marry the victim and that he had mala fide
motives and had made false promise only to satisfy the lust. But for the false promise by the
accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the
physical relationship. It was a clear case of cheating and deception.

The prosecutrix became anxious as she was pregnant and the ignorant attitude of the
respondent was persistent.

So the reputation of the petitioner was at stake as she was not married. Also he ignored her
calls and gave evasive answers. So the intention of the respondent was not clear to the
petitioner. He kept her in delusion and is therefore liable for dishonest concealment, i.e.
cheating.

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PRAYER

Therefore in the light of the issues raised, argument advanced and Authorities cited it is,
therefore most respectfully prayed that this Hon’ble Court may be pleased to adjudge and
declare that:

1. To Grant the Special Leave Petition (SLP) under Article 136 of the Constitution of
Indiana.

2. Respondent must be held punishable for the offence of rape under section-376 and For
Cheating under section-417, IPC.

3. To Set aside the order of the Hon’ble High Court of Dwelhi.

AND/OR

PASS ANY SUCH ORDER AS THIS HON’BLE COURT MAY DEEM FIT IN THE
INTEREST OF JUSTICE. AND FOR THIS ACT OF KINDNESS THE PETITIONER
AS IN DUTY BOUND SHALL EVER PRAY.

Counsel for the Petitioner

Date:-
Place:-

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