MEMORANDUM FOR THE RESPONDENTIN THE HONBLE SUPREME COURT OF INDIA

IN THE MATTER OF

____________________________________________________________________________________

MS. SHALINI . PETITIONER

VS.

BHAWAR LAL, MOHAN AND SOHAN . RESPONDENT

____________________________________________________________________________COUNSEL FOR THE RESPONDENT

CODE NO. 02MEMORANDUM FOR THE RESPONDENTTABLE OF CONTENTSLIST OF ABBREVIATIONS.. (i)INDEX OF AUTHORITIES Books Referred. (ii) Articles, Reports and Journals.. (iii) Dictionaries and Law Lexicons (iii) Statutes Referred.. (iii) Table of Cases.. (iv)STATEMENT OF FACTSQUESTIONS PRESENTEDSUMMARY OF ARGUMENTS.ARGUMENTS ADVANCED..

A. Whether the Honble High Court was justified in restoring the sentence as awarded by the Sessions court?

B. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not for 20 years or 14 years)?

PRAYER.

MEMORANDUM FOR THE RESPONDENTLIST OF ABBREVIATIONS

1. & And2. A. Article3. AIR All India Report4. CJ Chief Justice5. Edn. Edition6. HC High Court7. Honble Honourable8. J Justice9. Ors. Others10. p. Page11. Pp. Pages12. SC Supreme Court13. SCC Supreme Court Cases14. SCR Supreme Court Reporter15. Sec. Section16. UOI Union Of India17. Vol. Volume18. V. Versus 19. SLP Special Leave Petition20. Ld. Learned21. F.I.R First Information Report22. I.P.C Indian Penal Code

MEMORANDUM FOR THE RESPONDENTINDEX OF AUTHORITIES

Books Referred:1. Ratanlal and Dhirajlal, The Code Of Criminal Procedure, 17thEd. Reprint 2007, Wadhwa and Co., Nagpur.2. Sardar Mukund and D.S. Chopra , Cases And Materials on Evidence Law, 1st Ed. (2012), Thomson Reuters Publishers.3. Chaturvedi, M.D., Code Of Criminal Procedure 1973, Allahabad Law Agency Publications.4. Andrew, Evidence, 3rd Ed. (2012), Oxfrod University Press.5. Lal, Batuk, Commentary On the Code Of Criminal Procedure, 1973, 4th Ed. (2007), vol.2, Orient Publication Company.6. Massey, I.P., Administrative Law, 7th Ed. (2008), Eastern Book Company, Lucknow.7. Myneni, S.R., The Law Of Evidence 1st Ed. (2008), ASIA Law House, Hydrabad.8. Joga Rao, Sripada Venkata, Law Of Evidence, 7th Ed. (2002), Lexis Nexis Butterworths.9. Krishnamachari, V., Law Of Evidence, 6th Ed. (2007), S. Gogia & Company, Hydrabad.10. Sen, D.N., The Code Of Criminal Procedure, 2006, Premier Publishing Company, Allahabad.

MEMORANDUM FOR THE RESPONDENT Articles, Reports & Journals: All India Reporter (AIR) Supreme Court Cases (SCC) Supreme Court Reporter (SCR) Indian Law Journal (ILR) Criminal Law Journal(Cri LJ)

DICTIONARIES & LAW LEXICONS REFERRED: Aiyar K.J, Judicial Dictionary: Complete Law Lexicon, 2001, Butterworths, New Delhi. Bryan A. Garner, A Dictionary of Modern Legal Usage, 2nd Ed.2001, Oxford University Press. Baryan A. Garner, Blacks Law Dictionary, 8thEd.2004, West Groups, New York. Gifis H.Stevens, Dictionary of Legal Terms, 3rd Ed.1998, Barronss Educational Series.

STATUTES REFERRED: Indian Penal Code,1860 The Code Of Criminal Procedure Code, 1973 The Indian Evidence Act, 1872 The Juvenile Justice ( Care and Protection of Children ) Act, 2000

MEMORANDUM FOR THE RESPONDENT TABLE OF CASESS.NO.CASE LAWSCITATION

01Bhoop Ram v. State of U.P.AIR1989SC1329

02Dhruvendra Singh and Ors. V. State Of Rajasthan2001 (3) WLN 380

03Ranjeet Singh and Anr. V. State of RajasthanAIR1988SC672

04Ramnarayan Shivram Kevat V. State of Gujarat2011GLH (2)680

05Jaharlal Das V. State of OrissaAIR 1991 SC 1388

06R. V. Hodge168 ER 1136

07Hanumant Govind Nargundkar V. State of M.P.1953CriLJ129

08Sharad Birdhichand Sarda V. State of Maharashtra1984CriLJ1738

09Bishnu Prasad Sinha and Anr. V. State of Assam2007(2)ACR1963(SC)

10Mohan Singh V. Prem SinghAIR 2002 SC 3582

11State of U.P. V. LakhmiAIR 1998 SC 1007

12Aloke Nath Dutta and Ors. V. State of West Bengal(2007) 12 SCC 230

131415161718192021Dharmender @ Bindu V. StateState of Punjab V. Gurmit SinghState of Maharashtra V. Chandraprakash Kewalchand JainOm Prakash V. State of U.P.Joseph alias Baby V. The Sub Inspector of Police, Munnar $ othersBacchan Singh v.State of PunjabShankar Kisanrao Khade V. State of MaharashtraDistrict and Sessions Judge V. Yoginder SharmaPriya Patel V. State of M.P. and Anr

2011(1)JCC651996 (2) SCC 384(1990) 1 SCC 550(2006) 9 SCC 787ILR2005(1)Kerala5541980CriLJ6362013(4)ABR5672008(1)ShimLC1052006(2)ACR2288(SC)

MEMORANDUM FOR THE RESPONDENTSTATEMENT OF THE FACTS

On 30th June, 2009 while the complainat, Ms. Shalini who was the student of Government nursing college came out of her room in the hostel, was kidnapped by Bhawarlal,(Chowkidar) aged 30 years and Tribhuvan, aged 18 years. They forcibly carried her behind the hostel to the Chowkidars room where Mohan, aged 22 years and Sohan aged 20 years were drinking heavy liquor and she was raped one by one. She was carried to the nearest police station where case under section 363 and 376 (2)(g) was registered against the four accused.A Panchnamah was prepared , Exhibit- A-1 contained the list of articles confiscated by the investigating officer.Exhibit A-2 was the site map. Exhibit A- 3 were the photographs of the Chowkidars room with its contents . A case under section 376 (2)(g) read with section 364A of Indian Penal Code, 1960 was registered against the four accused. The complainant sort death sentence for Bhawarlal and damages of rupees 20 lakhs under section 357 and 357A of the Criminal Procedure code with costs. The prosecutor (PW-1) stood to the test of the cross examination . The statements given by Ramlal (PW-2), Shyamlal (PW-3), Photographer (PW-4), Medical jurist (PW-4) confirmed that the gang rape was mercilessly done.Tribhuvan claimed that he was a minor and his minority was proved by his matriculation certificate. Mohan denied the charge on the basis that he was out of the town when the incident took place. Sohan claimed that he was persuaded by Tribhuvan to have forcible intercourse for his pleasure. Bhawarlal also confessed guilty and stated that he received rupees ten thousand who persuaded him for forcible rape.The Sessions judge convicted the accused as follows- Bhawarlal, Chowkidar to undergo rigorous imprisonment for life, Mohan, student to undergo rigorous imprisonment for ten years, Sohan, student to undergo simple imprisonment for seven years, Tribhuvan, having been proved as minor to be dealt with separately under the Juvenile justice Act 2000, Damages were awarded of rupees ten lakhs.

Aggrieved by the Sessions Court judgement, the accused as well as the complainant filed an appeal before High Court of Judicature .The Honble High Court delivered its judgement which supported the judgement given by the sessions court that the four accused had committed the heinous offence of gang rape against the nursing student which would have life long effect on the body and mind of the complainant .However on appreciation of defence evidence and non availabilty of any independent eye- witness, the High Court reduced the sentence awarded by the Session Court to the following period- Bhawarlal to undergo rigorous imprisonment for ten years Mohan to undergo simple imprisonment for five years Sohan to the period already undergone . Damages were reduced to rupees fifty thousand.

Being aggrieved by the aforesaid orders, the complainant as well as the accused, Bhawarlal, Mohan and Sohan have filed appeal before the Honble Supreme Court. The Supreme has raised two issues, first regarding the non restoration of Sessions Court judgement by the High Court. And second regarding reduction of sentence of Bhawarlal from life imprisonment to rigorous imprisonment for ten years.

MEMORANDUM FOR THE RESPONDENTQUESTIONS PRESENTED

C. Whether the Honble High Court was justified in restoring the sentence as awarded by the Sessions court?

D. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not for 20 years or 14 years)?

MEMORANDUM OF THE RESPONDENT

SUMMARY OF THE ARGUMENTS

I. Whether the Honble High Court was justified in not restoring the sentence as awarded by the Sessions Court?

After perusal of entire prosecution case, and examination of prosecution witnesses (PWs) and defence witnesses (DWs), itself would show that the Ld. Session judge had failed to apply his judicial mind to consider some point such as in this case, the prosecution has failed to examine the victim (complainant) under section 164 of Criminal Procedure Code, 1973. In this case, no eye witness has been examined before the trial court to support the prosecution case and so the judgement of the Sessions Court was absolutely based on circumstantial evidence. So, the Honble High Court was justified in not restoring the sentence as awarded by the Sessions Court.

II. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not for 20 years or 14 years)

In this case there was no any strong reason to implicate Bhawarlal for the sentence of life imprisonment as there was absence of any eye witnesses which serves as a important ground for convicting the accused. The judgement delivered by the Seession Court was solely based on circumstantial evidence. There was also absence of common intention among the rapists which is the primary ingredient to prove the offence of rape as per explanation I to Sec. 376 of Indian Penal Code, 1960. As such, the necessary ingredient of gang rape punishable under Section376(2)(g)IPC is lacking in this case. Thus, keeping this view in mind the Honble High Court had reduced the sentence of Bhawarlal from life imprisonment to a period of rigorous imprisonment for 10 years.

MEMORANDUM FOR THE RESPONDENT ARGUMENTS ADVANCED

1. Whether the Honble High Court was justified in not restoring the sentence as awarded by the Sessions Court?

After perusal of entire prosecution case, and examination of prosecution witnesses (PWs) and defence witnesses (DWs), itself would show that the Ld. Session judge had failed to apply his judicial mind to consider the following points:- The prosecution has failed to examine the victim (complainant) under section 164 of Code of Criminal Procedure, 1973 which deals with recording of confessions and statements.[footnoteRef:1] [1: Section 164 of Code of Criminal Procedure Code, 1973]

Judicial confession must be recorded in strict compliance of the provisions of Section164of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture. No eye-witnesses has been examined before the trial court to support the prosecution case.Evidently, there was no eye-witness to the occurrence in this case. Nobody had seen the appellants lifting the girl, committing rape. The entire prosecution caseis based on circumstantial evidences.

The prosecution has failed to take the sperm separately from the accused person for examination of medical test.

Presence of semen was not found in the vaginal swab.

Indisputably, the investigation was done in a slipshod manner. The undergarments should have been sent for chemical analysis.

So far, the co-accused Mohan is concerned, he has been implicated or convicted only on the basis of recovery of his motorcycle in the premises oh the hostel while he has absolutely denied his presence on the date of occurrence, regarding that facts the prosecution has failed to examine the witnesses in support of that. And nothing has come against him during the coarse of investigation or before the trial court.

In this case, Bhawarlal and Sohan had confessed about their involvement in the offence . In case Bishnu Prasad Sinha and Anr. Vs.State of Assam , it was held that a confessional statement is admissible in evidence, being a relevant fact . The Court may rely their upon if it is voluntarily given . It may also form the basis of the conviction, where the Court may only have to satisfy itself in regard to voluntariness and truthfulness thereof.[footnoteRef:2] [2: 2007(2)ACR1963(SC)]

We are not oblivious of the general proposition of law that confession would not ordinarily be considered the basis for a conviction. We must, however, at this stage, notice that this is one of the case where the accused had stuck to his own confessional statements. He did not make any attempt to retract. He even did not statethat it was not truthful or involuntary.In case Ranjeet Singh and Anr. Vs. State of Rajasthan, it was held that the nature and extent of the corroboration may depend upon the facts of each case. The corroboration need not be of any direct evidence that the accused committed the crime. The corroboration even by circumstantial evidence may be sufficient. But such evidence as to corroboration must be independent and must not be vague or unreliable.[footnoteRef:3] [3: AIR 1988SC672]

In case, Ramnarayan Shivram Kevat Vs. State of Gujarat, it was held that the trial Court committed serious illegality and mistake in recording the conviction of the accused for the offence charged against him. It is contended that there is no eye-witness to the incident, and therefore, the prosecution caseentirely rests on the circumstantial evidence.[footnoteRef:4] [4: 2011GLH(2)680]

In the case of Jaharlal Das v. State of Orissa, it was held that it is settled principle of law that in order to sustain conviction on the basis of circumstantial evidence, prosecution must fulfill three conditions:(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else, and it should also be incapable of explanation of any other hypothesis than that of the guilt of the accused. Further, in casesdepending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.[footnoteRef:5] [5: AIR 1991 SC 1388.]

According to the definition of gang rape, it is clear that in order to constitute an offence of gang rape, there have to be more than two accused who acted in furtherance of their common intention resulting in rapeof a woman. In the instant case, in view of the facts, the prosecution has failed to establish that the four accused nurtured a common intention in furtherance of which the complainant was raped. As such, the necessary ingredient of gang rapepunishable under Section376(2)(g)IPC is lacking in this case.

Common intention denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action.[footnoteRef:6] According to the facts of the case, though there might be element of participation in action among the accused but there is no such evidence as regarding the prior meeting of minds and pre-arranged plan. [6: Priya Patel vs. State of M.P. and Anr, 2006(2)ACR2288(SC)]

Therefore, in the light of the considered facts and judgements, The Honble High Court was justified in not restoring the sentence as awarded by the Sessions Court.

2. Why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not for 20 years or 14 years)?

In this case there was no any strong reason to implicate Bhawarlal for the sentence of life imprisonment as there was absence of any eye witnesses which serves as a important ground for convicting the accused. The judgement delivered by the Seession Court was solely based on circumstantial evidence. There was also absence of common intention among the rapists which is the primary ingredient to prove the offence of rape as per explanation I to Sec. 376 of Indian Penal Code, 1960. As such, the necessary ingredient of gang rape punishable under Section376(2)(g)IPC is lacking in this case. Thus, keeping this view in mind the Honble High Court had reduced the sentence of Bhawarlal from life imprisonment to a period of rigorous imprisonment for 10 years.

In case of District and SessionsJudge Vs.Yoginder Sharma, it was held that when an appeal hasbeen filed against the sentenceon the ground of its inadequacy, (the court of Session or, as the casemay be, the High Court) shall not enhance the sentenceexcept after giving to the accuseda reasonable opportunity of showing cause against such enhancement and while showing cause, the accusedmay plead for his acquittal or for the reduction of the sentence.[footnoteRef:7] [7: 2008(1)ShimLC105]

In case Bishnu Prasad Sinha and Anr. Vs.State of Assam , it was held that a confessional statement is admissible in evidence, being a relevant fact . The Court may rely their upon if it is voluntarily given . It may also form the basis of the conviction, where the Court may only have to satisfy itself in regard to voluntariness and truthfulness thereof.[footnoteRef:8] [8: 2007(2)ACR1963(SC)]

We are not oblivious of the general proposition of law that confession would not ordinarily be considered the basis for a conviction. We must, however, at this stage, notice that this is one of the case where the accused, Bhwarlal had stuck to his own confessional statements. He did not make any attempt to retract. He even did not statethat it was not truthful or involuntary. In case Joseph alias BabyVs.The Sub Inspector of Police, Munnar & others, it was held that In order to bring a rapewithin the definition of gang rape, as per Explanation I to Sec. 376 I.P.C. A woman must have been raped by "one or more in a group of persons acting in furtherance of their common intention". In such circumstances, each such person is deemed to have committed gang rape. All the persons must be acting in a group in furtherance of their common intention, thereby the rapists must form a group at the time of the commission of the offence. The person acting in a group in furtherance of their common intentionis distinguishable from several persons coming with the similar intention of having sexual intercourse with a girl individually. Then there will not be, acting in furtherance of common intention by group of persons as enjoined by the Explanation I to Section 376. If at all there was any intention, it was only immoral similar intention of having intercourse and not a culpable common intentionto commit rape.[footnoteRef:9] [9: ILR2005(1)Kerala554]

In the instant case though there might be similar intention among the accused to commit the offence of rape, however there was no any evidence of common intention reflected according to the facts of this case. As such, the necessary ingredient of gang rapepunishable under Section376(2)(g)IPC is lacking in this case.In the instant case, Ms. Shalini (complainant) sought death sentence for Bhawarla under section 357 of Criminal Procedure Code, 1973. But in case Bacchan Singh v.State of Punjab ,[footnoteRef:10] it was held that Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. But this case is absolutely based on weak circumstantial evidence and is not the rarest of the rare case so on the basis of this ground death sentence should not be awarded. [10: 1980 CriLJ 636]

In case R. V. Hodge, it was held that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded.[footnoteRef:11] [11: 168 ER 1136]

It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused . Due to such reasons, The Honble High Court has reduced the sentence of Bhawarlal to undergo rigorous imprisonment for 10 years and thereby not to undergo life imprisonment for whole of the convicts life.

APPEAL BEFORE THE HONBLE SUPREME COURT

The Honble High Court has also failed to consider the aforesaid points before passing the order. That from the perusal of the impugned judgement and order, passed by the Ld. Session Judge, itself would show that the conviction order has been passed on the basis of sentimental mind which is absolutely based on society while nothing has come against the accused persons specifically. It is further stated and submitted that at worst, this case is absolutely based on weak circumstantial evidence.

Therefore, in view of the aforesaid facts, both the judgements passed by Ld. Sessions Judge and The Honble High Court are fit to be set aside and be pledged to pass the acquittal order of the Respondent.

MEMORANDUM FOR THE RESPONDENT PRAYER

Therefore, in view of the aforesaid facts, both the judgements passed by Ld. Sessions Judge and The Honble High Court are fit to be set aside and be pledged to pass the acquittal order of the Respondent.And to pass any order or orders as this Honble court may deem fit and proper in the circumstance of the case and thus render justice.

All of which is humbly prayed.

Counsel for the Respondent