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3RD FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2013

MOOT COURT PROPOSITION

Prosecution case in nutshell is as follows :1. Ms. Shalini aged about 20 years, the complainant, was a nursing student and was living in a Government Womens Nursing College Hostel at Jaipur. On 30th June, 2009 while the complainant came out of her room in the hostel on the front lawn of the hostel, the main accused, Shri Bhawarlal, aged about 30 years a Chowkidar/night watchman in the hostel and Shri Tribhuvan, aged about 18 years, a spoilt multimillionaire student, kidnapped her at about 11.00 P.M. and forcibly carried her in the chowkidars room behind the hostel, a lonely place, where 2 students namely, Mohan, aged 22 years, son of a local M.L.A. and Sohan, aged 20 years, close relation of a Central Minister, were drinking heavy liquor. As the summer vacation was to commence from 1.6.2009, hardly 3-4 students were in the Hostel with a capacity of 100 inmates. The lady Warden had left for her home and no other employee was there. The complainants mouth and body was tied with cloth and Bhanwarlal had a knife in his hands. She was given some intoxicant with drugs, forcibly put on the mattress and was raped one by one by Tribhuwan, Mohan, Sohan and Bhanwarlal. After gang rape, in a naked (unconscious) condition, the complainant was thrown outside the backside of the boundary wall of the hostel at about 4.00 A.M. 2. At about 5.00 AM, the complainant came to little senses and was noticed by certain passers by. She was carried to the 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 Sections 363 and 376(2)(g) was registered against the four accused. Wide publicity was given by the print and electronic media in local and national papers and on T.V. The Complainant was admitted in the Government Hospital and was released after two weeks. The Chowkidar, Bhawar Lal and other three accused could be traced out heavily drunk sleeping in the Chowkidars room. 2.1. A Panchnamah was prepared. Exhibit-A-1 contains the list of articles confiscated by the Investigation Officer viz torn out Kurta, Payjama, panty, hawai chappal, non-vegetarian food items, tumblers, liquor bottles, drugs, cigarettes, hukka with tobacco and Matchbox, other intoxicants, sharp knife weapon, Cash Rs. 10,000/- + Rs. 50,000/-

etc. Four mobile cells of the 4 accused were found and seized. On checking of call list it was found (i) there had been call in between the 4 accused in the evening at about 7.00 P.M. and (ii) two missed calls were by Tribunvan to the Complainant on 29.5.2009. Site map was prepared which is Exhibit A-2. A classic car Mercedes registered in the name of father of Tribhuvan and the driving licence of Tribhuvan were found apart from one motor bike in the Campus. In the Car one bottle of foreign liquor was also found with bed sheets, carpet, cosmetics, cigars etc. The complainant was required to undergo medical examination within 12 hours. The Medical Jurist in the report stated that blood was seen in the vagina and hymen of the complainant was found to have been ruptured and damaged. The accused were also required to undergo Sperm Detection Test and the report corroborated the claim of the complainant. Presence of semen and human spermatozoa on the bed sheets of the mattress were noticed. Exhibit A-3 are the photographs of the Chowkidars room with its contents. 3. A case u/s. 376(2)(g) read 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 was later arrested. After filing of the charge sheet, the case was submitted to the Court of Sessions. Shri Tribhuvan and Shri Sohan were released on bail by the High Court. The Complainant sought death sentence for Bhanwarlal and damages of Rs. 20 lacs under Section 357 and 357A of the Criminal Procedure Code with costs. 4. The prosecutor, (PW-1) stood to the test of cross examination. Shri Ramlal (PW-2) and Shri Shyamlal (PW-3) who were passing through the road on the back side of the hostel found the complainant in naked condition and stated about injury on the private parts, abrasions and bruises on the breasts and cheeks and oozing of the blood and that she was in a serious condition. Photographer (PW-4) stated as to photographs and his observations. Medical Jurist (PW-5)confirmed his report and the gang rape mercilessly done. Shri Shyamlal who had drawn Spot map (PW-6) was examined. They further stated that gang rape by the 4 accused had dehumanizing effect on the victim. The witnesses were cross examined and stood to the testimony. 5(i) Shri Tribuvan accused claimed that he is a minor. He produced his horoscope, birth certificate and matriculation certificate wherein he was found as having completed 17 years and 10 months on the date of event. As per Medical Certificate he was declared above 18 years. He confessed that with the assistance of Bhanwarlal on payment of Rs. 5,000/- to Bhanwarlal and Rs. 50,000/- to one other student of the Hostel, he had carried her to a five star hotel for the whole night. He also stated that he had been frequently visiting the Hostel with the

permission of the Warden and that he spotted the Complainant in mini skirt (western dress) with high heels, cosmetics and was allured of her charming personality. He asked Bhanwar Lal to manage the Complainant on payment of Rs. 10,000/- for him and Rs. 50,000/- for the Complainant. He smilingly stated that he had inter-course with the complainant gracefully, she was in proper senses and co-operative. She was misused by other accused. He was declared as minor. (ii) Shri Mohan claimed that he was out of the town, came to his house at about 11.00 P.M. and had not gone to the room of Bhanwarlal. He denied the charge. However, the Motor bike is registered in his name. He failed to prove his denial. (iii) Shri Sohan corroborated the rape story but claimed that he was persuaded by Tribhuvan to have forcible inter-course for his pleasure. Shri Tribhuvan was watching the action. (iv) Shri Bhanwarlal confessed guilty but stated that he had to co-operate and plan as Tribhuvan gave him Rs. 10,000/- and also persuaded for forcible rape. He had been arranging drinks party earlier also. He admitted receipt of Rs. 10,000/- for him and Rs. 50,000/- for the Complainant. He told that he earlier gave offer to the complainant, but she categorically refused to succumb to his offer for Tribhuvan, a well built person with charming personality and lot of fortune. 6. The Sessions Judge, Jaipur by judgment dated 30.12.2010 convicted the accused after holding that the prosecution has proved its case fully supported by independent witnesses and medical evidence on record apart from the Sperm Detection Test stained clothes, mattress with blood, drugs, intoxicants, cash etc. The Sessions Judge Court considering the defence evidence convicted the accused as follows :(i) Shri Bhawar imprisonment for life; Lal, Chowkidar to undergo rigorous

(ii) Shri Mohan, student to undergo rigorous imprisonment for a period of 10 years; (iii) Shri Sohan, student to undergo simple imprisonment for a period of 7 years; and (iv) Shri Thribuvan, having been proved as minor to be dealt with separately under the Juvenile Justice (Care and Protection of children) Act, 2000. (v) Damages were awarded of Rs. 10 lacs.

6.1. The Sessions Judge further observed that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but a deep sense of some deathless shame. He also stated that the facts given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration and it will be a mockery of justice to permit these accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of this country suspect. The common man will lose faith in courts. The nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal. If for an extremely heinous crime perpetrated in a very brutal manner, the most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. Rape is not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. It destroys, as noted by this Court in bodhisattwa Gautam v. Subhra Chakraborty (1966) 1-SCC-490 : (AIR 1996 SC 922) the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victims most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. 7. Aggrieved by the said judgement, the respondents accused as well as the complainant preferred appeal being Criminal Appeal No. 5 8/2011 before the Honble High Court of Judicature for Rajasthan at Jaipur Bench. The Honble High Court by impugned judgment dated 20.5.2013 came to the conclusion that the Sessions Court was justified in coming to the conclusion that the four accused have committed the heinous act, offence of gang rape against the nursing student of the hostel, which would have life long effect on the body and mind of the

complainant. However, taking a lenient view of the matter, on appreciation of defence evidence and non-availability of any independent eye witness, reduced the sentence awarded by the Sessions Court to the following period :(i) years; (ii) Shri Mohan to undergo simple imprisonment for five years; and (iii) Shri Sohan to the period already undergone by the accused. (iv) Damages were reduced to Rs. 50,000/-. Shri Bhawar Lal to undergo rigorous imprisonment for 10

The appeal of the accused were allowed in above terms and appeal of the complainant to enhance sentence and damages was dismissed, being bereft of any substance. 8. Being aggrieved by the aforesaid orders, the complainant as well as the accused, Bhawar Lal, Mohan and Sohan have filed appeal before the Honble Supreme Court. The Honble Supreme Court has issued notices confining to the issues regarding the sentence and damages. The Supreme Court also issued notice as to why the sentence awarded by the High Court to the three accused respondents be not restored to that of the sentence awarded by the Sessions Court and why the accused Bhawar Lal not to undergo life imprisonment for whole of the convicts life (not for 20 years or 14 years) ? 9. All the appeals have been consolidated and are fixed for final hearing on 30.9.2013, with appropriate directions to submit written memorials on or before 15.9.2013. RELEVANT LAW 1. 2. 3. 4. Sections 45, 363, 375 and 376 of the Indian Penal Code, 1860. The Juvenile Justice (Care and Protection of Children) Act, 2000. Evidence Act. Section 357 and 357A of the Criminal Procedure Code.