Final Final Memo

7/27/2019 Final Final Memo

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WRITTEN SUBMISION ON BEHALF ON APPEALANT

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CRIMINAL APPEAL NO. ****/2013

[UNDER ARTICLE 136 OF INDIAN CONSTITUTION]

IN THE MATTER OF

MSSHALINI...APPELLANT

VS.

STATE OF

RAJASTHAN.....RESPONDENT


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TTAABBLLEEOOFFCCOONNTTEENNTTSS

LIST OF ABBREVIATIONSIV

LIST OF AUTHORITIES...V

CONSTITUTIONS..V ACTS, CODES AND STATUTES.V INDIAN CASES .V FOREIGN CASES...VIII BOOKS REFERRED ....VII DICTIONARIES... ...VIII

STATEMENT OF JURISDICTION.IX

STATEMENT OF FACT..X

QUESTION PRESENTED.XIII

SUMMARY OF ARGUMENT XIV

ARGUMENT ADVANCED1TO 10

1) Whether the Hon`ble High Court has taken a lenient view and whether Punishment of Trialshould be restored..............................................................1

a) There was miscarriage of justice by the Honble High Court...................................................................................1

i) Presumption as to absence of consent in certain prosecutioncases..2

ii) Leniency by Hon,ble High Court is wholly misplaced and detterent theory ahouldbe applied to curb spur in instances of gang

rape 2

iii)Gravity of offence demands strictest punishment available under the section 3762(g).3

iv)Joint Liability applicable4


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v) Easy virtues of women no defence and threat to life of the complainant needs to betaken into account..5

2. Whether Bhawarlal should be imprisoned for life for such a henius

act.

3.Whether the damages should be restored to that decreed by trial court

i)Compensation for violation of fundamental rights

ii)Compensation for violation of International Human

Rights..

iii)Compensation for violation of rights under International Convenant on Civil and political

rights ..

iv)Compensation under 367A of Criminal Procedure Code.

PRAYER20

Cr LJ Criminal Law Journal

ed. Edition

SCC SupremeCourtCases

Sec. Section

SCR SupplementaryConceptRecord

vs.. versus

Mad.

Cr LJ Criminal Law Journal


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ed. Edition

SCC SupremeCourtCases

Sec. Section

SCR SupplementaryConceptRecord

vs.. versus

Mad. Madras

Ori. Orissa

Lrs Legal Representatives

A.P. Andhra Pradesh

Cal Calcutta

Anrs. Others

U.P Uttar PradeshAld. Allahabad

Ibid ibidem

Vol Volume


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LLIISSTT OOFF AAUUTTHHOORRIITTIIEESS

CONSTITUTIONS

1- TheConstitutionof India,1950.

ACTS, CODE AND STATUTES

1- Code Of Criminal Procedure, 19732- Indian Evidence Act, 18723-

Indian Penal Code, 1860

INDIAN CASES

1. Ramesh Kumar and Ors [AIR 2013 SC 733]2. Salil Bali vs UOI and Anr.[AIR 2013 SC 718]..3. State of Andhra Pradesh vs Bodem Sundra Rao [AIR 1996 SC

130]..

3. State of Punjab vs Gurmit Singh Ors.[AIR 1996 SC130].

4. State of Karnataka vs Krishnappa [AIR 2000 SC

210]

4. Jugendar singh vs State of UP[AIR 2012 SC 485] 5. Sirivalla Srinavasa Rao Ors.(APP) vs State of UP[AIR 2011 SC 933].6. Vijay@Chinee v. State of Madhya Pradesh[AIR 2012 SC 522]..7. Mulla and Anr. Vs. State of Uttar Pradesh[AIR 2010 SC 91]..8. Pushpanjali vs State of Orrisa.[AIR 2012 SC 780]..9. Om Prakash vs State of Rajasthan and Anr.[AIR 2002 SC

416]

10.Bipin Bihari Sahu v. State[1982 CrLJ 2346 (Ori.)]


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11.Minerva Mills Ltd. And Ors. V. UNION OF INDIA AND ORS [AIR 1980 SC75]..

12.Gopal Reddy v. State of A.P.[AIR 1996 SC550]

13.Bhupinder Sharma vs State of Himachal Pradesh[AIR 2003 SC 825]..14.Rafiq vs State of U.P.[AIR 1980 SC 196].15.Bharwada Bhogiabhai and Hiribhai v. Sate of Gujrat[AIR 1983 SC 90]16.Rameshwar v. The State of Rajasthan[1952CriLJ547]..17.MD Iqbal and ANR v. State of Jharkhand[(2012) 5 SCC

674]

18.Narendra Kumar v. State(NCT of Delhi)[AIR 2012 SC 0481]...19.Shimbhu vs State of Haryana[AIR2012 SC

1011].

20.State of Himachal Pradesh v. Raja Mahendra Pal[AIR 1999 SC1786].

21.Francis Coralie Mullin v. Administator,Union Territory of Delhi[AIR 1981 SC746].

22.Khatri vs State of Bihar[(1981) 1 SCC 627]23.Rudal sah vs State of Bihar[(1982) 3 SCC 131].24.D.K Basu vs State of W.B.[(1997) 1 SCC 416]

23Maneka Gandhi vs.Union of India [(1978) 1 SCC 248]...

24Md. Hussainvs.DalipSinghji[AIR 1970 SC 45]..25Md.Yasinvs. King Emperor[ILR (1901) 28 Cal. 689]

..

26Mohd. Khalid vs. State of West Bengal[(2002) 7 SCC334]..

27Munna Devi vs. State of Rajasthan [AIR 2002 SC107]

28NandaniSatpathyvs. P.L. Dani[AIR 1978 SC 1029]...


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29Nazir Khan and Anrsvs. State of Delhi[(2003) 8 SCC461].

30ParmanandaPeguvs. State Of Assam[(2004) 7 SCC 779]...31

PromothaNathvs. Emperor[AIR 1923 Cal.470]..

32PyareLalvs. State of Rajasthan[AIR 1963 SC1094]..

33R vs.Lakshman[1882 (6) Bom.124].

34R.B. Mithanivs. State of Maharastra [AIR 1971 SC1630]....

35R.S Bhagatvs. Union of India[(1980) ILR Del.1422]..

36Rajeshwarivs.PuranIndoria[(2005) 7 SCC 60]..37Ram Tossavs. State of Assam[2012 (3) GLD

69]...

38Re SheobhajanAhir and others vs. King Emperor[AIR 1921 Pat.499].

39RovolaGopaiahvs. Government of A.P [MLJ: YD 1978 Suppl C23]..................................

40 S.N. Mukherjee vs. Union of India [(1990) 4 SCC594]..

41 SatishMehravs. Delhi Administration and Anr[(1996) 9 SCC766].

42 Sawarn Singh Rattan Singh vs. State of Punjab [AIR 1956 SC537].

43 Shankaranvs. State of Delhi [(1990) CrLJ 550(Del.)]..

44 Shankariasvs. State of Rajasthan[(1978) 4 SCC453]


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45 Sheoraj Singh Ahlawat and Ors.vs.State of U.P. and Anr[(2012) 1 RCR (cri.)153]

46 Siddharthvs. State of Bihar[(2005 12 SCC 545].

47 Siemens Engg.& Mfg. Co. vs. Union of India [(1976) 2 SCC981]..

48 State Anti-Corruption Bureau, Hyderabad and Anr. vs. P. Suryaprakasam[(1999)SCC criminal

373]..

49 State of Karnatkavs.Muniswami[(1997) 2 SCC 699]..50 State of Maharashtra vs.PriyaSharanMaharaj and Anrs[(1997) 4 SCC 393]51 State of Tamil Nadu vs.Kutty alias Lakshmi Narashinhan[(2001) 6 SCC

550]..

52 State of U.P.vs.ShriKishan[(2005) 10 SCC420]...

53 SubramaniaGoundanvs.The State of Madras[AIR 1958 SC 66].54 Sugumaranvs. State[1987 (2) Crimes. 691

(Mad.)]..

55 Superintendent and Remembrancer of legal Affairs, West Bengal vs.. Anil KumarBhunja and Anrs[1979 CrLJ 1390

SC].

56 Thakur Das (Dead) by Lrs.vs.State of Madhya Pradesh and Anr [(1978) 1 SCC27]........

57 U.P. AvasEvamVikasParishadvs.SheoNarainKushwaha and Ors[(2011) 6 SCC 456]58ZahiraHabibullah Sheikh &Anrvs. State Of Gujarat & Ors[(2006) 3 SCC

374].

FOREIGN CASES

1. Alexander Machinery (Dudley) Ltd. vs.. Crabtree[1974 LCR 120]2. Breen vs. Amalgamated Engineering Union[(1971) 1 All ER 1148].3. Brutonvs. US[391 US 123]...


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4. R vs. Thomson[1836 (1) Mood CC 465].. 5. State vs. Mullin[85 NW 2ND598]..

BOOKS REFERRED

1. C.K.Thakkar Takwani, Code of Criminal Procedure (3rd Ed., LexisNexisButterworthsWadhwa, Nagpur, 2012).

2. Chief Justice M. Monir, Law of Evidence (14th edition, Universal Law Publishing HouseNew Delhi, 2006).

5. D.D.Basu, Commentary on Constitution of India (8th ed., Wadhwa and Company, Nagpur,2010).

6. D.N.Sen, The Code of Criminal Procedure (Premier Publishing Company, Allahabad,2006).

7. H.M.Seervai, Constitutional Law of India(4th ed. Universal Publishing House, New Delhi,2007).

8. I.P. Massey,Administrative Law(7th ed. Eastern Book Company, Lucknow, 2008).3. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, Code Of Criminal

Procedure(17th

Ed., Wadhwa and Company, Nagpur, 2007).

4. Justice Y.V. Chandrachud, V.R.Manohar, Ratanlal And Dhirajlal, The Law Of Evidence (22ndEd., Wadhwa and Company, Nagpur, 2007).

DICTIONARIES

1. Brayan A. Garner,Blackslaw dictionary(9thed. Thomson West,2009).2.

The International Webster

s New Universal Dictionary (2

nd

ed. Trident Press International,USA, 1983).

3. P. RamnathaIyer, The Major Law Lexicon (4th ed. Vol. 6, Lexis Nexis ButterworthsWadhwa, Nagpur, 2010).


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SSTTAATTEEMMEENNTTOOFFJJUURRIISSDDIICCTTIIOONN

The appellant has approached to the Honble Supreme Court of India through Article 136 of the

Constitution of India, 1950. The matter is now posted for the final hearing before the Honble

Court.


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SSTTAATTEEMMEENNTTOOFFFFAACCTTSS

Ms Shalini aged about 20 years , The complainant was a nursing student and was living in a

Government Women Nursing College Hostel at Jaipur. On 30th

June 2009 while the complainant

came out of her room in the front lawn of the hostel , the main accused, Shri Bhawarlal, aged

about 30 year a chowkidar/ night watchman in the hostel and Shri Tribhuvan, aged about 18

years, a spoilt multimillionaire student, kidnapped her at about 11 P.M. and forcibly carried her

in chowkidars room behind the hostel

II

Two students namely Mohan aged 22 years, son of a local M.L.A. and Sohan aged 20 years,

close relation of Central Miniser, were drinking heavy liquor. As the summer vacation was

commenced from 1.6.2009, hardly 3 or 4 students in Hostel with a capacity of 100 inmates. The

lady Warden had left for her home and no other employee was there . Bhawarlal kidnapped the

complainant , the complainant mouth and body was tied with cloth. She was given intoxicant


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with drug forcibly put on mattress and was raped by Tribhuwan , Mohan, Sohan and Bhawarlal.

After gang rape, in a naked(unconscious) condition, the complainant was thrown outside the

backside of boundary wall of the hostel at about 4.00 a.m

III

At about 5.00 A.M, the complainant came to little senses and was noticed by certain passer by.

She was carried to nearest police station being crime no. 966 of 2009, where FIR could be

lodged with much difficulty and on intervention of police commissioner. Case under section 363

and 376(2)(g), was registerd against the four accused. Wide publicity was given by electronic

media in local newspaper and on its T.V. The complainant was given in the government hospital

and was released after two weeks. The chowkidar , Bhawarlal and other three accused could be

traced out haviely drunk sleeping in the chowkidars room.

IV

In Panchnamah, the list of article confiscated by the Invistigation Officer viz torn out kurta ,

payjama, panty,hawai chappal, non-vegitarian food items,tumblers, liquor bottle,cigarettes,

hukka with tobacco and match box, other intoxicants, sharp knife weapon, cash10,000/-+ R.s

50,000/-etc. On the checking of call list it was found(1) there had been call between the 4

accused in the evening at about 7.00 P.M.(2) Two missed call were by Tribhuwan to the

complainant on 29.5.2009.Exibhit A-2. A classic car Mercedes register in the name of

Tribhuvans father and the driving license of Tribhuvan were apart from a motor bike in the

campus .In the car 1 bottle foreignwas also found with bed sheet, carpet, cosmetics, cigar, etc.

The complainant was required to undergo medical examination within 12 hour.

V

The accused was also required to undergo sperm detection test. A case u/s. 376(2)(g) with sec

364A of Indian penal code was registered against the 4 accused. After investigation the three

accused were arrested. Shri Tribhuvan was absconding and later arrested.

VI


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The complainant sought a death sentence for Bhawarlal and damages of 20 lacs under section

357 and 357A of the criminal procedure code with costs. The session court held that Shree

Bhawarlal to undergo the rigorous imprisonment of life. Shree Mohan undergo the ten years

rigorous imprisonment. Shree Sohan undergo simple imprisonment for 7 years.Shree Tribhuvanexempted from punishment.

VII

The complainant as well as respondent was not satisfied by the decision of session court so she

appeals in high court. Again both the complainant and respondent was not satisfied by the

decision of high court so they appeal in a supreme court.

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SUMMARY OF ARGUMENTS

1- . Whether the Hon`ble High Court has taken a lenient view and whetherPunishment of Trial should be restored.

It is humbly submitted by the appellant the Honble High Court was no t justified in diminishning

the sentence of the accused as the crime being of a very heinous nature. It is submitted that there

was miscarriage of justice in awarding punishment. The special and adequate reasons under

376 2 (g) not take into account properly..

2- Whether Bhawarlal should be imprisoned for life for the henious act.It is humbly submitted by the appellant that the offence by Bhanwarlal is of heinous nature and

the maximum punishment under 367 2(g) should be awarded.To curb the growing menance of

gang rapes in Indian society in the recent years maximum punishment should be given to deter

criminals and restore social security and commensurate with the offence.

3-. Whether the damages should be restored to that decreed by trial court


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It is humbly submitted by the appellant that the damages awarded by the trial court should be

restored,in view of the blatant violation of Fundamental Rights,European Convention for the

Protection of Human Rights,International Convenant on Civil and Political Rights and the

compensation under section 367 A of Criminal Procedure Code keeping in view thepsychological trauma and further rehabilitation expenses.


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AARRGGUUMMEENNTTAADDVVAANNCCEEDD

1-Whether the Hon`ble High Court has taken a lenient view and whether Punishment of

Trial should be restored.

The Honble High Court was not justified in diminishing the punishment,awarded by the Ld.

Session Court and there was miscarriage of justice.

a-There was a miscarriage of justice made by the Honble High Court.

It is submitted by the appellant that there was a miscarriage of justice made by the Honble. High

Court and the punishment awarded was not commensurate with the heinous offence.After the

Criminal Ammendment Bill 2013,a section 114 A was adduced in the Indian EvidenceAct,1872,which presumes no consent on part of the prosecutrix unless proved otherwise which

states:-

1[ Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under

clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub- section (2) of section

376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is

whether it was without the consent of the woman alleged to have been raped and she states in her

evidence before the Court that she did not consent, the Court shall presume that she did not consent1.

The ratio decidendi by the High Court in diminishing punishment awarded to the accused does not stand

because the section 114 A clearly states the presumption,moreover rape being a sexual offence,mostly

committed in secrecy,demands absence of primary of eyewitness and can be misued to escape maximum

punishment as in this case

(i) Presumption as to absence of consent in certain prosecution casesThe Honble Supreme Court in a pleothra of cases have ruled about the presumption of no

consent. In the case of Bhupinder Singh vs State of Himachal Pradesh,observed that In casesof gang rape , the proof of completed act of rape by each accused on the victim is not required.

The statutory intention in introducing Explanation 1 in relation to Section 376 (2) (g), I.P.C.

appears to have been done with a view to effectively deal with the growing menaceofgang rape. In such circumstances, it is not necessary that the prosecution should adduce

clinching proof of a completed actof rape by each one of the accused on the of rape by each

1Section 114 A,Indian Evidence Act ,1872


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one of the accused on thevictim or on each one of the victims where there are more than one in

order to find the accused guilty of gang rapeand convict them under Section 376, I.P.C.In thecase of Kamal Kishore vs State of H.P,the court defined special and adequate reasons

mentioned in 376 2 (g) as Reasons which are general or common in many cases cannot be

regarded as special reasons,and absence of primary eyewitness in sexual offences is common

as sexual offences are mainly commited in privacy. Also in the case ofBanti alias BalvinderSingh vs State of MP

2,th Honble Supreme Court observed that A woman, howsoever dissolute

she may be, would not ordinarily consent to insulting, humiliating and repulsive act of sexual

intercourse on her by a number of persons, as if she were a chattel for public use. The lawrecognises that a woman even of easy virtue, or even a whore for that matter, has personal

dignity and honour. She cannot be violated, if only because of her lowly profession. A

presumption has been enacted in section 114A of the Evidence Act which says that in a

case, inter alia,ofgangrape, where sexual intercourse by the accused is proved and thequestion is whether it was without the consent of the woman alleged to have been raped and

she states in her evidence before the Court that she did not consent, the Court shall presume

that she did not consent. Hence, the legal position is that if the fact of sexual intercourse by the

accused is proved, the evidence of the woman in a case ofgangrape that she did not consentto sexual intercourse would have to be believed and it will not help the defence merely to show

that the woman was of easy virtue. It is true that the presumption about want of consent is not

conclusive. Evidence may still be given to disprove it. But in the absence of any evidence ofdisproof, there is no option with the Court but to raise a presumption about non-consent if

circumstances for raising the presumption under section 114A exist. It must, however, be

conceded that immoral character would still not be an absolutely irrelevant circumstance. Itmay render the story itself as incredible. It may take away probative force of the story, told as it

is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral

character if she says that some persons had sexual intercourse with her unless there existed

satisfactory proof in support of the story of sexual intercourse.In the case ofBharwadabosigai

vs State of Gujarat3,supreme court observed that in the Indian Setting refusal to act on thetestimony of the victim of sexual assault in the absence of corroboration as a rule, is adding

insult to injury. A girl or a woman in the tradition bound non-permissive society of India wouldbe extremely reluctant even to admit that any incident which is likely to reflect on her chastity

had ever occurred. She would be conscious of the danger of being ostracized by the society and

when in the face of these factors the crime is brought to light, there is inbuilt assurance that thecharge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is

not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely

to exculpate the real offender, the evidence of a victim of sex offence is entitled to great

weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not anaccomplice. Corroboration is not the sine qua non for conviction in a rape case.In the case of

State of HP vs Asha Ram4

, the Court highlighted the importance to be given to the testimony ofthe prosecutrix as under para 5 It is now well-settled principle of law that conviction can be

founded on the testimony of the prosecutrix alone unless there are compelling reasons forseeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured

2AIR 2003 SC 0825

3AIR 1983 SC 0090

4AIR 2005 SC 1982


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witness. The testimony of the victim of sexual assault is vital, unless there are compelling

reasons which necessitate looking for corroboration of her statement, the courts should find nodifficulty in acting on the testimony of a victim of sexual assault alone to convict an

accused where her testimony inspires confidence and is found to be reliable. It is also a well-

settled principle of law that corroboration as a condition for judicial reliance on the testimony

of the prosecutrix is not a requirement of law but a guidance of prudence under the givencircumstances. The evidence of the prosecutrix is more reliable than that of an injured

witness. Even minor contradictions or insignificant discrepancies in the statement of the

prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.InVijay@chinee vs State of MP

5,After discussing the entire case law, this Court concluded in

paragraph 14 of the Report as follows,the law that emerges on the issue is to the effect that the

statement of the prosecutrix if found to be worthy of credence and reliable, requires no

corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.Inthe case ofJ Rameshwar vs State of Rajasthan

6,the court highlighted ;The rule, which

according to the cases has hardened into one of law, is not that corroboration is essential before

there can be a conviction but that the necessity of corroboration, as a matter of prudence,

except where the circumstances make it safe to dispense with it, must be present to the mind ofthe judge.In the case ofNarendra Kr. Vs State7(NCT of Delhi),the court observed that , this Court hasobserved that even if a woman is of easy virtues or use to sexual intercourse, it cannot be a licence for any person

to commit rape.

(ii)Leniency by Hon,ble High Court is wholly misplaced and detterent theory ahould be

applied to curb spur in instances of gang rape

It is humbly submitted by the appellant that the leniency by the Honble High Court is whollymisplaced.In the recent verdict of Supreme Court,in case of , Shimbhu and Anr. Vs State of

Haryana8it observed that the punishment in cases of rape must be commesurate with its

gravity,there cannot anything grave than this offence as the prosecutrix was in a vegetative

state,except for the loss of life of the prosecutrix which attracts death penalty also.In Mulla andAnr. Vs State of U.P

9.,the court highlighted the objective of punishment as the way in which

society expresses its denunciation of wrong doing; and, in order to maintain respect for the law,

it is essential that the punishment inflicted for grave crimes should adequately reflect therevulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of

punishments as being a deterrent or reformative or preventive and nothing else.... The truth is

that some crimes are so outrageous that society insists on adequate punishment, because thewrong doer deserves it, irrespective of whether it is a deterrent or not. The aims of punishment

are now considered to be retribution, justice, deterrence, reformation and protection and modern

sentencing policy reflects a combination of several or all of these aims. The retributive element is

intended to show public revulsion to the offence and to punish the offender for his wrong

conduct. The concept of justice as an aim of punishment means both that the punishment shouldfit the offence and also that like offences should receive similar punishments. An increasingly

important aspect of punishment is deterrence and sentences are aimed at deterring not only the

5AIR 2010 SC 0522

6AIR 1952 SC 0036

7AIR 2012 SC 0481

8AIR 2012 SC 1012

9AIR 1998 SC 0786


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Karanataka15,a three bench judge stated with anguish that crime against women in general

and rape in particular is on the increase. The learned Judges proceeded further to state that it is

an irony that while we are celebrating women's rights in all spheres, we show little or no

concern for her honour. It is a sad reflection of the attitude of indifference of the society

towards the violation of human dignity of the victims of sex crimes. Thereafter, the Court

observed the effect ofrape on a victim with anguish:

We must remember that a rapist not only violates the victim's privacy and personal integrity, but

inevitably causes serious psychological as well as physical harm in the process. Rape is not

merely a physical assault-it is often destructive of the whole personality of the victim. A

murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless

female.The court further in State of AP vs Bodem Sundra Rao16

stated that In recent years, we

have noticed that crime against women are on the rise. These crimes are affront to the human

dignity of the society. Imposition of grossly inadequate sentence and particularly against the

mandate of the Legislature not only is an injustice to the victim of the crime in particular and the

society as a whole in general but also at times encourages a criminal. The Courts have anobligation while awarding punishment to impose appropriate punishment so as to respond to the

society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection

through the court's verdict in the measure of punishment. 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 the appropriate punishment. The henious crime of committing rape on

a helpless girls shakes our judicial conscience.In the Minerva Mills vs Union of India17,the

object of law was beautifully defined by the then CJ, The promise of a better tomorrow must

be fulfilled today, day after tomorrow it runs the risk of being conveniently forgotten. Indeed so

many tomorrows have come and gone without a leaf turning that today there is a lurking danger

that people will work out their destiny through the compelled cult of their own 'dirty hands,theHonble Court if gives a verdict commensurate with the heinous crime the tomorrow it can act as

a precedent to convict the destroyers of the social fabric of the society and who ruin lifes of

innocent helpless girls.In the cases of rape the conviction occurs in less than 1% cases,this

abysmal performance needs to change drastically.With this record,it is a miracle that women still

come forward with their complaints and the sexual offences by age group of 18-30 is the highest

i.e 162118

.

(iv) Joint liability in gang rape cases

In the case ofAshok vs State of Haryana

19

the court went on to state that . Charge against theAppellant is Under Section376(2)(g)Indian Penal Code. In order to establish an offence Under

Section376(2)(g)Indian Penal Code, read with Explanation I thereto, the prosecution must adduce evidence to

15AIR 2000 SC 0210

16AIR 1995 SC 1145

17AIR 1980 SC 0075

18NCRB Crime in India 2012 Report

19AIR 2002 SC 734
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indicate that more than one accused had acted in concert and in such an event, ifrape had been

committed by even one, all the accused will be guilty irrespective of the fact that she had been

raped by one or more of them and it is not necessary for the prosecution to adduce evidence of

a completed act ofrapeby each one of the accused. In other words, this provision embodies a

principle of joint liability and the essence of that liability is the existence of common intention;

that common intention presupposes prior concert which may be determined from the conduct

of offenders revealed during the course of action and it could arise and be formed suddenly,

but, there must be meeting of minds. It is not enough to have the same intention independently

of each of the offenders. In such cases, there must be criminal sharing marking out a certain

measure of jointness in the commission of offence.In the case ofJugendra Singh vs State of

U.P20

the court stated , the brutality reflected in the commission of crime, the response

expected from the courts by the society and the rampant uninhibited exposure of the bestial

nature of pervert minds, we are required to address whether the rigorous punishment for life

imposed on the Appellant is excessive or deserves to be modified. The learned Counsel for the

Appellant would submit that the Appellant has four children and if the sentence is maintained,

not only his life but also the life of his children would be ruined. The other ground that is urgedis the background of impecuniosity. In essence, leniency is sought on the base of aforesaid

mitigating factors. It is seemly to note that the legislature, while prescribing a minimum

sentence for a term which shall not be less than ten years, has also provided that the sentence

may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the

Court. Almost for the last three decades, this Court has been expressing its agony and distress

pertaining to the increased rate of crimes against women. The eight year old girl, who was

supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and

purity of physical frame was shattered. The plight of the child and the shock suffered by her

can be well visualised. The torment on the child has the potentiality to corrode the poise and

equanimity of any civilized society. The age old wise saying "child is a gift of the providence"

enters into the realm of absurdity. The young girl, with efflux of time, would grow with

traumatic experience, an unforgettable shame. She shall always be haunted by the memory

replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a

state of nightmarish melancholia. She may not be able to assert the honour of a woman for no

fault of hers. Respect for reputation of women in the society shows the basic civility of a

civilised society. No member of society can afford to conceive the idea that he can create a

hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It

would not be an exaggeration to say that the thought of sullying the physical frame of a woman

is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere,

impetuosity has no room. The youthful excitement has no place. It should be paramount in

everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit aboutsocial, economic and political equality of the sexes and, on the other, some pervert members of

the same society dehumanize the woman by attacking her body and ruining her chastity. It is an

assault on the individuality and inherent dignity of a woman with the mindset that she should

be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a

crime against the holy body of a woman and the soul of the society and such a crime is

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aggravated by the manner in which it has been committed. We have emphasised on the manner

because, in the present case, the victim is an eight year old girl who possibly would be deprived

of the dreams of "Spring of Life" and might be psychologically compelled to remain in the

"Torment of Winter". When she suffers, the collective at large also suffers. Such a singular

crime creates an atmosphere of fear which is historically abhorred by the society. It demands

just punishment from the court and to such a demand, the courts of law are bound to respond

within legal parameters. It is a demand for justice and the award of punishment has to be in

consonance with the legislative command and the discretion vested in the court. The mitigating

factors put forth by the learned Counsel for the Appellant are meant to invite mercy but we are

disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our

judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and,

hence, we sustain the judgment of conviction and the order of sentence passed by the High

Court.

Ex consequenti, the appeal, being sans merit, stands dismissed.

2-Whether the damages should be restored to that decreed by trial court

a.Compensation for violation of fundamental rights- Part III of the Constitution is rightly

described as magna carta of India. It contains a long and comprehensive list of

justiciable FundamentalRights.FundamentalRights were deemed essential to protectthe rights and liberties of the people against the encroachment of the power delegated by

them to their Government. The FundamentalRights are meant for promoting the ideal of

political democracy. They prevent the establishment of an authoritarian and despotic rule inthe country and protect the liberty and freedom of the people, against the invasion by the

State.

The FundamentalRights are named so because they are guaranteed and protected by the

Constitution, which is the fundamental law of the land. They are fundamental also inthe sense that they are most essential for the all-round development of the individuals.Any infringement of these rights is the disrespect or a shame towards the framers of

Constitution and needs to be dealt with an iron hand.Article 21 of the Indian Constitution

states that "No person shall be deprived of his life or personal liberty except according to

procedure established by law." The violation of the right to livelihood is required to beremedied. But the right to livelihood as contemplated underarticle21of the Constitution

cannot be so widely construed which may result in the defeating the purpose sought to be

achieved by the aforesaid article. In the case ofSate of HP vs Mahendra Pal21

the courtobserved that it is also true that the right to livelihood would include all attributes of life

but the same cannot be extended to the extent that it may embrace or take within its ambit

all sorts of claim relating to the legal or contractual rights of parties completely ignoringthe person approaching the court and the alleged violation of the said right In the abovecase the freedom to life and liberty,right to live with human dignity. the A question

regarding the awarding of monetary compensation through writ jurisdiction was first

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raised before the Supreme Court inKhatri (II) v. State of Bihar22

In this case, Bhagwati,

J. observed:

"Why should the court not be prepared to forge new tools and devise new remedies for

the purpose of vindicating the most precious of the precious fundamental right to life and

personal liberty."2

Regarding the liability of the State to pay compensation for infringing Article 21, theCourt answered in the affirmative saying that if it were not so, Article 21 will be denuded of its

significant content. The Court further observed that where there are issues of the gravest

constitutional importance involving as they do the exploration of a new dimension of the right tolife and personal liberty, it has to lay down the correct implications of the constitutional right in

Article 21 in the light of the dynamic constitutional jurisprudence, which the Court is

evolving.Hence the accused needs to be compensated on account of this violation.

b.Compensation for Ostentatious violation of human rights:-_ International human rights are

the rights a person is entitled to from the birth by the virtue of his/her being a human, andthese rights are unvarying and fundamental across the globe, standardised by InternationalBill of Rights.

Human rights are inalienable-you cannot lose these rights any more than you can cease being

human. Human rights are indivisible-you cannot be denied a right because it is less important

than another right. Human rights are interdependent-all human rights are part of a

complementary framework. Rhonda Howard has worded that, "...dignity is not a

claim...rather it's granted at birth or on incorporation into the community...it's the inner moral

worth of a person..." Dignity is, therefore, the inviolable premise of human rights

Article 3 of the Internatinal Bill of Human Rights provides the right to life, dignity and

security

Article 12 of the Internatioanal Bill of Human Rights maintains that no one shall be

subjected to arbitrary interference with his privacy, family, home or correspondence, not to

attacks upon his honour or reputation.

Article 17 provides The right to freedom from torture or cruel or inhuman treatment is

protected .

The Supreme Court of India inRudul Sahv. State of Bihar23

brought about a revolutionary

breakthrough in human rights jurisprudence by granting monetary compensation to an

unfortunate victim of State lawlessness onprovisions of this article shall have an enforceableright to compensation". This right must be provided for within the national legal system, that is, a

remedy must be made available under the domestic law and enforceable in a domestic court. The

basic duty of the State is to ensure that a breach of Article 5 may be remedied by way of

compensation in the domestic legal system. Where, under the law of a State the Convention

22(1981) 1 SCC 0627

231983 4 SCC 141
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forms part of the law of the land, there is less likelihood of difficulty in complying with this

paragraph, but where "transformation" or specific adaption is required constitutionally, and if

this has not occurred, a problem may arise. In the case ofBrogan24

and others of 1988, the

detention of the applicants had been in conformity with British law but was ruled to have

breached the Convention provisions. The Court rejected the UK Government's argument that"lawfulness" referred to in the text applied only to domestic law. Thus compensation was

payable, and failure to provide this as of right resulted in a breach of the article.6But even where

the Convention is part of the law of the land, the Human Rights Commission and Human Rights

Court at Strasbourg have the duty to consider the legal effect of incorporation to ensure that the

practical result was indeed to confer an effective right on individuals to compensation, a point

made in the 1989 case ofCiulla v.Italy7

c.Violation of International Convenant of Civil and Political Rights:- Article 9(5) of theInternational Covenant on Civil and Political Rights of 1966 indicates that an enforceable right to

compensation is not alien to the concept of enforcement of a guaranteed right. Article 9(5) readsas follows:

"Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right

to compensation."

India adopted the Covenant with a reservation regarding the enforceable right to compensation.The Declaration by the Government of India dated 10-4-1979 in respect of Article 9(5) is as

under:

Declaration II.-With reference to Article 9 of the International Covenant on Civil and Political

Rights, the Government of the Republic of India takes the position that the provisions of thearticle shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of

Article 22 of the Constitution of India. Further under the Indian legal system, there is noenforceable right to compensation for persons claiming to be victims of unlawful arrest or

detention against the State.

The Supreme Court of India inD.K. Basu made the following observation with reference to the

above Covenant:

The Government of India at the time of its ratification of International Covenant on Civil and

Political Rights, in 1979 had made a specific reservation to the effect that the Indian legal system

does not recognise a right to compensation for victims of unlawful arrest or detention and thusdid not become a party to the Covenant. That reservation, however, has now lost its relevance inview of the law laid down by this Court in a number of cases awarding compensation for the

infringement of the fundamental right to life of a citizen.

24Ibid,p.438,para 432
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d.Compensation under 367 A of the Criminal Procedure Code,1973:- The court in awarding

damages needs keep in mind the mental and physical torture that she has gone by this incidentand will clinch her throughout her life.The court also needs to keep in ind the medical

complexities which may arise in future from this gruesome act and the further chances of being

ostracized by the society and being abandoned by the parents.Also career prospects that are

affected by this grotesque act and the expenses which she might encounter.The counsel wouldpresent before the court that why should an innocent girl and her family bear the expenses that

was of an unprovoked act.

PPRRAAYYEERR

Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities cited, it

is most humbly prayed and implored before the Honble Court, that it may be graciously pleased

to adjudge and declare-

1. Honble High Court was not justified in taking a lenient view for a heinous act andpunishment of trial court should be restored.

2. Honble High Court should award life imprisonment to Bhanwarlal.3. Compensation awarded by trial court should be restored

All of which is most humbly and respectfully submitted.

COUNSEL FOR THE APPELLANT

Final Final Memo

Documents

Transcript of Final Final Memo