memorial

LATE ADV. K.B. KAYASTHA XV TH STATE LEVELMOOT COURT COMPETITION

IN THE HONOURABLE SUPREME COURT OF INDIA SPECIAL LEAVE PETITION (cri) NO............/ OF 2015

[UNDER ARTICLE 136 OF CONSTITUTION OF INDIA]

IN THE MATTER OF SECTION 90, SECTION 376 AND SECTION 417 OF INDIAN PENAL CODE (IPC)

1. THE STATE OF MAHARASHTRA 2. MISS. SMITA RADHAKRISHNA K ERKAR ERKAR ……………PETITIONER  Vs. MANESH MADUSUDAN KOTIYAN……………… KOTIYAN ……………… …RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

Table of Contents………………………………………………………….2 Contents………………………………………………………….2 List of Abbreviation……………………………………………………….3 Abbreviation……………………………………………………….3 Index of Authorities……………………………………………………….4 Authorities……………………………………………………….4 Statement of Jurisdiction…………………………………………………..6 Jurisdiction…………………………………………………..6 Statement of Facts………………………………………………………....7 Facts………………………………………………………....7 Statement of Issues………………………………………………………...8 Issues………………………………………………………...8 Summary of Issues…...……………………………………………………9 Arguments Advanced I.

Whether this Special Leave Petition is maintainable before the Hon’ble Supreme Court of India?.......................................... India?................................................................ ............................................. ..............................10 .......10

II.

Whether the consent was given voluntarily voluntaril y or not?......................................14 not?......................................14

III.

Whether the respondent is punishable for rape under section 376 of Indian Penal Code, 1860?........................................ 1860?.............................................................. ............................................. .....................................19 ..............19

Prayer ……………………………………………………………………………….....23 ……………………………………………………………………………….....23

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LIST OF ABBREVIATION

AIR.

ALL INDIA REPORTER

A.P

ANDHRAPRADESH

B.H.C

BOMBAY HIGH COURT

CRI

CRIMINAL

CRILJ

CRIMINAL LAW JOURNAL

COI

CONSTITUTION OF INDIA

IPC

INDIAN PENAL CODE

KAR.

KARNATAKA

MANU

MANUPATRA

ORS.

OTHERS

ORI.

ORISSA

R.I.

RIGOROUS IMPRISIONMENT

SC

SUPREME COURT

SCC

SUPREME COURT CASES

SLP

SPECIAL LEAVE PETITION

UP

UTTAR PRADESH

V.

VERSUS

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INDEX OF AUTHORITIES

CASES:1. State Of Andhra Pradesh vs P. Anjaneyulu (1984) 2 SCC 445 2. State Of U.P vs Boota Singh & Others (1979) 1 SCC 316 3. State Of UP Of UP v Hari Ram and ors (1983) 4 SCC 453 4. Ramesh Chand v. State of UP of  UP (1985) 1 SCC 464 5. State Of U.P vs Anil Singh AIR 1988 SC 1988 6. R. vs. Olugboja [1981] 3 W.L.R. 585 7. Holman vs. The Queen [1970] W.A.R. 2 8. Uday singh v State of Karnataka MANU/KA/0279/1995 9. Jayanti Rani Panda vs. State of West Bengal 1984 CRILJ 1535 10. Krishna Pada Mahato vs. State of West Bengal  2005 (2) CHN 198 11. Dilip Mahto vs. State of Bihar  2003 (1) ALT CRI Q13 12. Surjit Ranjan v State 27 JAN 2011 13. Uday v State of Karnataka  19TH FEB 2003 14. Sri Kumaresh Chikkappa Bagodi Vs State of Karnatak  ILR  ILR 2001 KAR 4964 15. Moran Chandra Paul v. State of Tripura  (1996) 2 GLR 15, 3 RD NOVEMBER, 2004 16. Bipul Medhi vs State Of Assam 2008 CRILJ 1099 17. Deelip Singh @ Dilip Kumar vs State Of Bihar 3RD NOVEMBER, 2004

BOOKS:-

1. 2. 3. 4. 5.

Commentary on IPC by Ratanlal & Dheerajlal Constitution of India by V.N. Shukla Constitution of India by P.M. Bakshi Indian Evidence Act by Ratanlal & Dheerajlal. Text book on IPC by K.D. Gaur

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Links

1. 2. 3. 4. 5. 6. 7. 8.

manupatra.com highcourt.nic.in supremecourtofindia.nic.in indiatoday.in timesofindia.indiatimes.com indiankanoon.org advocatekhoj.com indpaedia.com

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court doesn’t have jurisdiction under article 136 of Constitution of India as it reads as follow:-

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 f rom any judgment, decr ee, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order  passed or made by any court or tribunal constituted by or under any law relating to the  Armed forces.

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

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STATEMENT OF FACTS

1. The appellant, Manesh and the respondent Smita worked at Virodhi Stationery Shop, Mumbai. The respondent left the job. Then the appellant also quitted. They started working at Balaji DTP Xerox Centre. 2. The appellant on one fine day proposed the respondent and she accepted his proposal. 3. On 5.11.09 the appellant informed Smita that it was his birthday. Smita went to meet him at the bus stop. 4. Then they both went to Gorai Beach. They checked into a guest house in Gorai village to cut the cake on the occasion of his birthday. 5. The appellant allegedly informed Smita that he wanted to marry her and on that ground he had solicited sexual favors from Smita. 6. When she refused to oblige, he forced her and had forcible sexual intercourse with her. They did not meet for 2-3 days. 7. The appellant went to Manglore for 1 month. She called him on his cell phone and learnt from the appellant’s brother that he is married and has a son. However, the wife and son did not reside with him. 8. The appellant met Smita accompanied by her mother at Boriwali and confirmed that he is married and has a son s on and sought pardon from them. 9. On 8.3.2010 Smita realized that she is pregnant and informed the same to the appellant. He promised her that he would obtain divorce after 3 months and then he would marry her. 10. Smita realized that he was ignoring her and lodged an F.I.R. against him under section 376, 420 of IPC.

11. High Court has acquitted the appellant under section 376 of IPC and convicted him under 417 and the respondent has filed the special leave petition under article 136 of COI.

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STATEMENT OF ISSUES

ISSUE I WHETHER THIS SPECIAL LEAVE PETITION IS MAINTAINABLE BEFORE THIS HON’BLE

SUPREME COURT OF INDIA OR NOT?

ISSUE II WHETHER THE CONSENT WAS GIVEN VOLUTARILY OR NOT?

ISSUE III WHETHER THE RESPONDENT IS PUNISHABLE FOR RAPE UNDER SECTION 376 OF INDIAN PENAL CODE, 1860?

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SUMMARY OF ISSUES

WHETHER THIS SPECIAL LEAVE PETITION IS MAITAINABLE BEFORE THE HON’BLE SUPREME COURT OF INDIA OR NOT?

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

WHETHER THE CONSENT WAS GIVEN VOLUTARILY OR NOT?

It is most humbly submitted before this Hon’ble Supreme Court of India that the consent was given voluntarily. There was no use of any force or fear to access the body of the petitioner. Also, the consent was not under misconception of fact. The consent was said to be in misconception if at all at the time of making the inception, the accused has the intention of not fulfilling it. Here, it must be noted that the accused has never denied to marry the  petitioner. And the respondent had also not taken the efforts of filing F.I.R and did not tell about the incident of the sexual intercourse, not even her mother. Hence, the consent was given freely.

WHETHER THE RESPONDENT IS PUNISHABLE FOR RAPE UNDER SECTION 376 OF INDIAN PENAL CODE, 1860?

It is most humbly submitted before this Hon’ble Supreme Court of India that the accused is not punishable for rape under section 376 of IPC as he has not committed the offence of rape only. The accused had not constituted sexual intercourse with the petitioner against her will, or without her consent or by keeping her under any type o f misconception. He didn’t have intention of deserting her. From the beginning he stayed firm on his decision and never denied to marry the petitioner. Even he didn’t have any problem wit h the paternity of the child of the petitioner. It would be gross injustice if, the respondent will be punishable for that offence which he never committed only.

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ARGUMENTS ADVANCED ISSUE I

WHETHER THIS SPECIAL LEAVE PETITION IS MAITAINABLE BEFORE THE H’ONBLE SUPREME COURT OF INDIA OR NOT?

It is most humbly submitted before submitted  before the Hon’ble Supreme Court of India that the SLP filed by by the petitioner is not maintainable before this court. Article 136 of COI reads as follow:follow: 136. Special leave to appeal by the Supreme Court:-

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant (1) Notwithstanding  special leave to appeal from f rom any judgment, decr ee, 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 (2) Nothing  passed or made by any court or tribunal constituted by or under any law relating to the  Armed Forces.

In decided cases, however, establish that the Supreme Court will grant Special leave in to appeal in exceptional cases like:Where grave and substantial injustice has been done by disregards to the forms of legal  process, or violation of the principles of natural justice or otherwise. It may be noted by this Learned Supreme Court that here in this case there is no grave injustice and ignorance of substantial question of law. The decision given by the High Court is totally based upon law without ignoring any substantial question of law.  Normally the Supreme Court does not interfere interf ere with an order of acquittal passed by the High Court if two views of evidence are possible 1. In case of State Of Andhra Pradesh vs P. Anjaneyulu on 2 November, 1982 2, it was held that:“We do not ordinarily entertain appeals against orders of acquittal if two views of the evidence are possible. On a perusal of the judgment of the trial court and the High Court we are unable to say that the High Court has taken an unreasonable view of the evidence. The

1

 para 5 of COI by VN Shukla, Shukla, P.440

2

 (1984) 2 SCC 445

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 special leave l eave petition peti tion is therefore dismissed dismis sed on merits and not because the State has desired to withdraw the same.” same.”

In this case also, High Court has examined all the evidence very carefully and then acquitted the said accused. However, the order may be set aside on the basis of following grounds:-

a)

if the High Court has misread the evidence and has reversed the judgment of the sessions judge without displacing important conclusion arrived at by the session  judge or ,

In case of State Of U.P vs Boota Singh & Others on 22 August, 1978 3, it was observed that:“ Normally, this Court does not interfere with an order of acquittal passed by a High Court but in this case we find that the High Court has misread the evidence and has reversed the  judgment of the Sessions Judge without displacing important conclusions arrived at by the Sessions Judge. The High Court has overlooked important circumstances which fully proved the case. Even regarding the confession it has not made a correct approach which is first to take the confession and then to find out how much of it is corroborated by other independent evidence” evidence”.

Here in this case, at the time of reversing the judgment of sessions judge , High court has not misread any of the evidence. After verifying all the witnesses and evidence, the judgment was delivered by this court. And hence, the petition for special le ave can be set aside.

 b) if the decision of the High Court is based on conjectures and not sound reasoning or,

4 Of  UP v Hari Ram and ors . It was contended as following:In case of State Of UP

“The High Court has committed serious errors of law in appreciating and marshalling the evidence and in basing its conclusions more on speculation that on the evidence led before the trial court. On a careful consideration and detailed review of the evidence and circumstances of the case we are fully satisfied that there is no good reason to disbelieve

3

 (1979) 1 SCC 316  (1983) 4 SCC 453

4

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the testimony of PWs. 1, 2 and 3 particularly when the evidence of PWs. 1 and 3 was fully corroborated by PW 2 who was doubtless an independent witness and whose evidence did not suffer from any manifest defect. We, therefore, fully believe the testimony of the eyewitnesses and hold that from the evidence on record the prosecution case has been proved beyond reasonable doubt and the order of acquittal passed by the High Court was wrong on a point of law which is sufficient to warrant our interference. In these circumstances, it is impossible to sustain the judgment of the High Court. We, therefore, allow the appeal,  set aside the judgment of the High Court. Court.” ”

It may be noted by this learned Court that in this case the judgment is not given under any speculation or conjectures as it has verified all the facts. The Prosecution itself doesn’t have sufficient evidence to prove the conviction of the accused. The decision of High Court is fully based on sound reasoning.

c) If the evidence does not justify conviction In case of Ramesh Chand v. State of  UP5 it was contended by the Hon’ble Supreme Court that:“Ordinarily this Court does not enter into re-appreciation of evidence but where evidence is placed and the conviction appears to the Court to be not justified in law, nothing stands in the way in directing reversal of conviction. We allow the appeal, set aside the conviction of the appellant and direct his acquittal.” acquittal. ”

In the present case also, the evidences presented by the appellant (Smita) don’t justify the conviction of the respondent (manesh) and hence the learned Supreme Court may set aside the SLP filed by the petitioner.

d) If the acquittal is perverse pervers e in the sense that no r easonable person would have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust.

In case of State Of U.P vs Anil Singh 6:“The scope of appeals under Article 136 of the Constitution is undisputedly very limited. This Court does not exercise its overriding powers under Article 136 to review the evidence. Even

5

 (1985) 1 SCC 464  AIR 1988 SC 1988

6

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if two views are reasonably possible, one indicating conviction and other acquittal, this Court will not interfere with the order of acquittal. But the Court will not hesitate to interfere if the acquittal is perverse in the sense that no reasonable person would have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust. ”

In this case the acquittal by High Court is not perverse and hence the petition must be dismissed. The decision delivered by the high court is based on evidence and witnesses. There is no such direct and even circumstantial evidence by which the she can prove that there was a gross injustice or that the High Court has ignored the substantial question of law. The decision is just and equitable. There is no need to rise a question over the t he said decision of the High Court. And hence the petition, must be dismissed.

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ISSUE II

WHETHER THE CONSENT WAS GIVEN VOLUTARILY OR NOT?

It is most humbly submitted before this Hon’ble Supreme court of India that there was the  presence of free consent and was given voluntarily. consent includes agreement, community of feeling and opinion, unanimity, to agree not to resist or prevent, to acquiesce in, agree to  permit, to be willing to undertake. For the genuineness of the t he consent the parties must be “ad idem”, ie, agree on “same thing in the same sense”.

According to Strouds Judicial Dictionary, “ consent is an act of reason weighing as in a balance the good and evil on each side.” And the same was observed in the case of R. vs. Olugboja : [1981] 3 W.L.R. 585 7 "consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction".

However. in Indian Penal Code, 1860 the word consent is not defined in a positive way, but what cannot be called as a consent is explained under section 90 of this code which reads as follow:90. Consent known to be given under fear or misconception. —  misconception. — A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person. —   — if if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child. —   — unless unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

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[1981] 3 W.L.R. 585 MEMORIAL ON BEHALF OF RESPONDENT

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In case of “Holman vs. The Queen : [1970] W.A.R. 2 8” it was held that that::-

"There does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously  permits it, there is consent'  ".  ".

According to the above provision, it can be inferred that (a) consent given under a fear or injury, or (b) under a misconception of fact is not a consent cons ent at all.

In the present case it may be noted that the consent of prosecutrix has not been obtained under any fear or injury or even under misconception.

A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. The question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else, and on that pretext sexual intercourse is committed. There is nothing like this in the present case as the appellant has never denied marrying the  prosecutrix. From the very day he is firmed on on his decision and he has not even cheated her.

In case of “Uday singh v State of Karnataka 9”  it was observed by the N. SANTOSH HEGDE & B.P. SINGH:“ In our view, we do not consider it necessary nec essary to consider the question questi on as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under Section 375 Fourthly and Fifthly, or whether consent given under misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375 IPC. The impugned judgment and order convicting and sentencing the appellant  for the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted of the charge”. charge”.

8

[1970] W.A.R. 2

9

 MANU/KA/0279/1995

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Further, if we focus on the evidence on record there is nothing as such which can prove this fact that the prosecutrix had not given her consent. In the instant case prosecutrix is a grown up working girl. girl. she is enough mature to take the decisions about herself. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could even from her mother. Hence, this is perfectly clear from these facts that the prosecutrix was a consented party.

In case of Jayanti Rani Panda vs. State of West Bengal 10, it was held by the Calcutta High Court that :"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of, fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of  promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court' can be assured that from the very inception the accused never really intended to marry her."

Here in this present case, the appellant had never created a belief that he has been married the respondent and there is no question of misconception. He assured her that he will marry her and never changed his statement.

In “Krishna Pada Mahato vs. State of West Bengal 11”, it was held that :"The evidence and circumstances also supports that the victim had full consent in sexual intercourse with the appellant as from January, 1991 to 4th August, 1991. She had regular  sexual intercourse with the appellant but did not report anything to her parents. She even did not report to her parents about her pregnancy during initial stages. On 4th August, 1991 when she last met with the appellant on that date also she enjoyed sexual intercourse with the appellant as it transpired from her evidence. She reported it to her mother only when the appellant refused to marry her. I am of opinion that in the instant case there was no misconception of fact and the victim being a full grown lady voluntarily consented to having  sexual intercourse with the appellant. Her evidence also reveals that the appellant once 10

 1984 CRILJ 1535  2005 (2) CHN 198

11

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disclosed to marry her but he could not marry her as his father objected to the marriage. It establishes that there was no misconception of fact in the instant case and the victim was a consenting party and her conduct was nothing but an act of promiscuity on her part ." part ."

In this case also the victim had not revealed this fact that she had sexual intercourse with the accused and this clearly shows that her consent was free and it was of course not the offence of rape but was promiscuity on her part.

In “Dilip Mahto vs. State of Bihar12”, Jharkhand High Court contended the following :" It is equally crystal clear from the testimony of P.W. 1, Meena Kumari that it is a case where on her own showing she was willing and full consenting party to that of sexual intercourse with the appellant. It also appears that P.W. 1, Meena Kumari continued without any protest, demur or objection with the affair of having sexual intercourse with the appellant for a  period of three months in his house prior to the institution of the case. In this view of the matter the allegation, P.W. 1 Meena Kumari was subjected to sexual intercourse with the appellant on the assumption based on an assurance or promise or giving out an understanding that the appellant shall marry her, cannot amount to the lack of consent for  sexual intercourse as far as P.W. 1, Meena Kumari is concerned. In view of the finding above that P.W. 1, Meena Kumari is major at the relevant time and if she gives consent even on any of the aforesaid assumptions and, thus, she has sexual intercourse with the appellant she will be under all circumstances and in all respects considered to be a consenting party. This consensual sexual intercourse between P.W. 1 Meena Kumari and the appellant continued  for three months until the day of the reckoning when P.W. 3, the informant filed this case." case."

Here in the instant case also, the prosecutrix was subjected to sexual intercourse on with the appellant on the assumption based on an assurance or promise or giving out an understanding that the appellant shall marry her. This cannot amount to the lack of free consent.

In case of Surjit Ranjan v State 13, where the facts of the case are more or less same, it was held that :“ The prosecutrix was a grown up educated woman aged about 22 years living in a metropolis like Delhi and was expected to know the consequences of indulging in sexual activity with a man. She continued to have sex with the appellant for more than three months.  Even after she became pregnant, she did not immediately disclose this fact to anyone including her mother. 12

 2003 (1) ALT CRI Q13  27 JAN 2011

13

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There was no reason for her not to disclose to her mother that appellant had promised her to marry. All this shows that she was in love with the appellant appellant and was a consenting party. party.

 And hence was the judgment: - I am of the view that Trial Court was not right in convicting the appellant under Section 376 IPC. Accordingly, conviction of appellant under Section 376  IPC and the sentence awarded to him him by the Trial Court is set aside.”

As in this case also, the respondent accompanied with the appellant without informing anybody and checked into a guest house. And she did not even resisted him forcefully and after this incident she did not even file the F.I.R.

It must be noted by this Hon’ble Supreme Court that all these incident are clearly clarifying that the consent was given voluntarily.

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ISSUE III

WHETHER THE RESPONDENT IS PUNISHABLE FOR RAPE UNDER SECTION 376 OF INDIAN PENAL CODE, 1860?

It is most humbly submitted before this Hon’ble Supreme C ourt of India that the respondent is not at all punishable for rape under section 376 of IPC, 1860 as he has not committed the offence of rape. The word Rape is defined under “section 376” which reads as follow: 375. Rape. —A  —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 six following descriptions: —   —  (First) —  (First)  —  Against  Against her will. (Secondly) —  (Secondly)  — Without Without her consent. (Thirdly) —   With her consent, when her consent has been obtained by putting her or any (Thirdly) —   person in whom she is interested in fear of death or of hurt. hurt. (Fourthly) — With (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 lawfully married. (Fifthly) —   With her consent, when, at the time of giving such consent, by reason of (Fifthly) —  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) —  (Sixthly)  —  With  With or without her consent, when she is under six teen years of age.

Explanation. —   — Penetration Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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For bringing an offence within the definition of rape the circumstances should fall under any of these descriptions as mentioned in Section 375 of the Indian Penal Code. Here it may be noted that the given criteria is not getting fulfilled. In the present present case the  petitioner has not even enquired about his background when the respondent has proposed her as she was in deeply with love with her.

In the famous case of  “Uday v State of Karnataka 14” , the Hon’ble Justice N. Santosh Hegde & B.P. Singh contended that:“It usually happens when two young persons are madly in love and promise loses all  significance, particularly when they are overcome with emotions and passion in weak moments; succumb to the temptation of having sexual relationship. The girl willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. And the appellant for the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted of the charge.”

According to the facts she voluntarily accompanied with the accused for celebrating his  birthday without telling anyone anyone about it.

The respondent was a well-educated working woman, aged 28 years. She would be well mature to understand the consequences of her deeds. And it cannot be said that the respondent had established physical relations with her without her consent.

Section 375 of IPC is read with section 90 of the same s ame which doesn’t define the consent but is specified with the provisions what cannot be called as consent. When the said accused checked into a guest house then the petitioner didn’t deny and this fact also cannot be  ignored that on the promise of marriage she did not assailed the accused and constituted sexual intercourse with the accused.

14

TH

 19  FEB 2003

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In case of Sri Kumaresh Chikkappa Bagodi Vs State of Karnatak 15, the Karnataka High Court held that:

“I am of the view, that the consent the  consent in the present nature, based on the promise of marriage does not bring the act of sexual intercourse of the accused with the victim, under the definition of rape under Section 375 Indian Penal Code. Again if we refer to Section 90  Indian Penal Code similar provisions akin to clauses thirdly and fourthly, fifthly are found. f ound. It has been interpreted, that if the case falls under any of the clauses, it is not consent at all. Conversely if the consent does not fall under any of the categories, either under Section 90 or clauses thirdly, fourthly and fifthly in Section 375 Indian Penal Code, I am of the view that if the victim is grown up and an adult, and her consent is not because of any reasons as stated in the provisions, but based only on an alleged promise, it cannot be held, that the accused Committed the offence of rape.” rape. ”

The petitioner has also confessed this fact that she is in love with the accused and even accused has also never denied marrying her. There is no matter of rape in this case as both the  parties love each other and the petitioner is still ready to marry the respondent.

In Moran Chandra Paul v. State of Tripura 16 (1996) 2 GLR 15, GAUHATI (AGARTALA BENCH) held that:“On consideration of the evidence on record, cohabitation was with the consent of the  prosecutrix and as such, no offence of rape is made out.”

Moreover, the evidence as a whole doesn’t indicate that there was resistance by the  prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. But here submission was not under any fear but was voluntarily.

Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. She was well aware of her act and then also she did not resist the accused forcefully. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

15

 ILR 2001 KAR 4964

16

(1996) 2 GLR 15 MEMORIAL ON BEHALF OF RESPONDENT

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And all the relevant circumstances are ascertaining the very fact that there is no offence of rape committed and hence the accused must not get punishment under section 376 of IPC.

The same has been held in the case of Bipul Medhi vs State Of Assam 17 :“ In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear cannot be construed as consented sexual act for the purpose of Section 375, IPC for, Section 375, IPC requires voluntary partic ipation by the victim not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between resistance and assent. Whether consent existed or not has to be ascertained on the basis of the facts of a given case.” case.”

And in this case, on the basis of the facts only it has been ascertained that there was no rape under section 375 of IPC as the consent was given freel y.

In case of Deelip Singh @ Dilip Kumar vs State Of Bihar 18 it was held by the SCI that:“We have no doubt that the accused did hold out the promise to marry her and that was the  predominant reason for the victim girl to agree to the sexual intimacy with him. PW12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW-12 that 'later on', the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been  prompted by a genuine intention to marry which did not materialize on account of the  pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. In the result, the conviction and sentence is set aside.”

In the instant case, the accused has never denied only to marry the petitioner. If there was suspicion in the mind of accused that he has committed offence under section 375 then why he would have been come back to the petitioner and pardoned from her and even her mother? Accused had never the intention of deserting the petitioner. Even he doesn’t have any  problem to the paternity of that child.

17

 2008 CRILJ 1099 RD  3  NOVEMBER, 2004

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MEMORIAL ON BEHALF OF RESPONDENT

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Apart from this, the prosecution has not sufficient evidence available to show that the rape has been committed on her.

From all the above facts and circumstances, it is crystal clear that the said accused (respondent) must not be punishable under section 376 of IPC, 1860.

MEMORIAL ON BEHALF OF RESPONDENT

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PRAYER

In the light of arguments advanced and authorities cited, the Respondent humbly submits that the Hon’ble Court may be pleased to adjudge and declare that: (1) The special leave petition should should be dismissed, (2) Resp (2)  Responden ondentt should sh ould no n o bet punishable punis hable under section sec tion 376 of IPC  (3) The decision given by the High Court should be upheld. AND / OR 

 Any ot her just j ust and equitab eq uitable le order or der as a s it deems fit in the th e interes int erestt of equity, equit y,  justice  just ice and good goo d conscien cons cience. ce.

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

MEMORIAL ON BEHALF OF RESPONDENT

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MEMORIAL ON BEHALF OF RESPONDENT

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