5th KIIT National Mock Trial Competition 2019 Memorandum

Team Code - TC_512 p
“5TH KIIT NATIONAL MOCK TRIAL COMPETITION 2019”
APRIL 5, 2019 TO APRIL 7, 2019
IN THE COURT OF SPECIAL (POCSO) SESSIONS JUDGE, AT STARWALKER
C.C. …… OF 2019
In the matter of
State of Starwalker
(Prosecution)
v.
Tridev Shukla
(Defence)
For the offences charged under:
SECTIONS 328, 363, 376 & 506 OF THE TRINDIAN PENAL CODE, 1860
&
SECTION 6 OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
Upon Submission to the
Hon’ble Special (POCSO) Sessions Court, Starwalker, Trindia
Memorandum on Behalf of the Prosecution

5TH KIIT NATIONAL MOCK TRIAL COMPETITION
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ______________________________________________ III
INDEX OF AUTHORITIES _______________________________________________ VI
A. BOOKS _______________________________________________________________ vi
B. LEXICONS ____________________________________________________________vii
C. LEGISLATIONS / CODES / STATUTES __________________________________vii
D. INTERNATIONAL LEGISLATIONS _____________________________________vii
E. LEGAL DATABASE ____________________________________________________vii
F. CASES _______________________________________________________________ viii
STATEMENT OF JURISDICTION _________________________________________ XII
STATEMENT OF FACTS ________________________________________________ XIII
STATEMENT OF CHARGES ____________________________________________ XIV
STATEMENT OF ISSUES ________________________________________________ XV
SUMMARY OF ARGUMENTS ___________________________________________ XVI
ARGUMENTS ADVANCED _________________________________________________ 1
[1.] Whether Mr. Tridev Shukla (Hereinafter Accused) is guilty of the offence under
§328 of Trindian Penal Code, 1860? ___________________________________________ 1
[1.1] The acts of the accused satisfy all the pre-requisites. __________________________ 1
[1.1.1]Accused administered drugs to the victim _______________________________ 1
[1.1.2] Intention to commit or to facilitate the commission of an offence. ____________ 2
i
MEMORANDUM ON BEHALF OF PROSECUTION
[2.] Whether the Accused is guilty of the offence under §363 of Trindian Penal Code,
1860?_____________________________________________________________________ 3
[2.1] The acts of the accused satisfy all the pre-requisites of kidnapping. ______________ 3
[2.1.1] Taking or Enticing any minor ________________________________________ 3
[2.1.2] Out of the keeping of the lawful guardian of victim _______________________ 4
[2.1.3] Absence of consent of guardian ______________________________________ 4
[3.] Whether the accused is guilty for the offence under §376 of T.P.C, 1860? ________ 5
[3.1] Act of sexual intercourse was committed by the accused with the prosecutrix. _____ 5
[3.1.1] Witness Statement _________________________________________________ 6
[3.1.2.] Documentary Evidences ____________________________________________ 6
[3.2] The act must fall under the any of the seven circumstances of §375. _____________ 7
[4] Whether the accused Tridev Shukla is guilty for offence under §506 of T.P.C.? ____ 8
[4.1] Threatening a person with injury. _________________________________________ 9
[4.1.1] To his person, reputation, or property __________________________________ 9
[4.2] Threat must be with Intent. ______________________________________________ 9
[5.] Whether the Accused is guilty of the offence under §6 of the Protection of Children
From Sexual Offences Act, 2012? _____________________________________________ 9
[5.1.] Commission of aggravated penetrative sexual assault. _______________________ 10
[5.1.1.] The Deputy Commissioner of Police is a public servant __________________ 10
[5.1.2] Penetrative sexual assault has been committed against the victim ___________ 11
[5.1.3.] Victim fall within the definition of child ______________________________ 12
[5.2.] Act is committed by the accused. _______________________________________ 13
[5.3.] Burden of Proof is on the defence. ______________________________________ 14
PRAYER ____________________________________________________________ XVIII
ii
LIST OF ABBREVIATIONS
SL. NO. ROOT WORD ABBREVIATION
1. Allahabad All.
2. All India Reporter AIR
3. And &
4. Andhra Pradesh A.P.
5. Another Anr.
6. Article Art.
7. Bombay Bom.
8. Chief Justice C.J.
9. Code of Criminal Procedure Cr.P.C.
10. Convention on Rights of the Child C.R.C.
11. Criminal Law Journal Cri. L.J.
12. Cuttack Cut.
13. Daughter of d/o
14. Delhi Del.
15. Deputy Commissioner of Police D.C.P.
16. Edition Ed.
17. Excise Law Times E.L.T.
18. Exhibit Ex.
19. First Information Report F.I.R.
20. Gauhati Gau.
21. High Court H.C.
22. Himachal Pradesh H.P.
iii
23. Hours hrs
24. Indian Law Reporter I.L.R.
25. Justice J.
26. Karnataka Kant.
27. Kerala Ker.
28. Madras Mad.
29. Mister Mr.
30. Number No.
31. Orissa Ori.
32. Others Ors.
33. Page Pg.
34. Paragraph ¶
35. Paragraphs ¶¶
36. Patna Pat.
37. Protection of Children from Sexual Offences POCSO
38. Punjab and Haryana P&H
39. Read with r/w
40. Regina R.
41. Section §
42. Sections §§
43. Son of s/o
44. Supplementary Suppl.
45. Supreme Court S.C.
46. Supreme Court Cases S.C.C.
iv
47. Trindian Evidence Act T.E.A.
48. Trindian Penal Code T.P.C.
49. Under Section u/s
50. Union of India U.O.I.
51. Union Territory U.T.
52. Uttar Pradesh U.P.
53. Versus v.
v
INDEX OF AUTHORITIES
A. BOOKS
1. Gaur K.D., Indian Penal Code, 1860.

2. Glaister, J., Medical Jurisprudence and Toxicology, 1957.
3. I, Basu D.D. Cr.P.C. 1973, (5th Ed. Lexis Nexis).

4. II, Basu D.D. Cr.P.C. 1973, (5th Ed. Lexis Nexis).
5. II, Sarvaria, S.K, Indian Penal Code, (10th Ed. 2008).
6. III, Sarvaria, S.K, Indian Penal Code, (10th Ed. 2008).

7. IV, Sarvaria, S.K, Indian Penal Code, (10th Ed. 2008).
8. Kataria, R.P., Commentary on ‘The Protection of Children from Sexual Offences’ Act,
2012 (1st Ed. 2014).
9. Kataria, R.P., Commentary on ‘The Protection of Children from Sexual Offences’ Act,
2012 (2nd Ed. 2016).
10. Kelkar, R.V., Criminal Procedure, (5th Ed. 2009).

11. Lal, Batuk, Law of Evidence, (5th Ed. 2011).
12. Malik, Shailender, The Code of Criminal Procedure, (8th Ed. 2011).
13. MODI, Medical Jurisprudence and Toxicology, (24th Ed. 2018).
14. Monir, M., Law of Evidence, (10th Ed 2017).
15. Monir, M., Law of Evidence, (5th Ed. 2010).

16. Ramasubramaniyam P., Criminal Major Act 2013.
17. Ratanlal & Dhirajlal, The Code of Criminal Procedure, (17th Ed. 2010).
18. Ratanlal & Dhirajlal, The Indian Penal Code, (31st Enlarged Ed. 2006).
19. Ratanlal & Dhirajlal, The Law of Evidence, (23rd Enlarged Ed. 2011).
20. Sarkar, Law of Evidence, (17th Ed. 2011).
21. Williams & Glanville, Criminal Law, (2nd Ed. 2011).
vi
B. LEXICONS
1. Catherine Soanes, Oxford Dictionary Thesaurus, 40th Ed., 2006, Oxford University
Press.
2. Collin’s Gem English Thesaurus, 8th Ed, 2016. Collins.
3. Garner Bryana, Black’s law Dictionary, 7th Ed. 1981, West Group.
4. W B Saunders, Dorland’s Illustrated Medical Dictionary, 32nd Ed. 2018, Dorland.
C. LEGISLATIONS / CODES / STATUTES
1. The Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

2. The Indian Evidence Act, 1872 (Act No. 1 of 1872).
3. The Indian Penal Code, 1860 (Act No. 45 of 1860).
4. The Police Act, 1861 (Act No. 5 of 1861).
5. The Protection of Children from Sexual Offences Act, 2012 (Act No. 32 of 2012).
D. INTERNATIONAL LEGISLATIONS
1. Convention on the Rights of the Child (United Nations General Assembly Resolution
44/25 of 20 November, 1989).
E. LEGAL DATABASE
1. www.heinonline.com
2. www.lexisnexis.com
3. www.manupatra.com
4. www.scconline.com
vii
F. CASES
1. A.S. Krishnan & Ors. v. State of Kerala, (2004) 11 S.C.C. 576.

2. Adapala Subbaiah v. Shaik Hasan Saheb, (2007) 4 ALD 196.
3. Alakh Alok Srivastava v. Union of India & Ors., 2018 S.C.C. OnLine S.C. 478.
4. Aman Kumar & Anr. v. State of Haryana, A.I.R. 2004 S.C. 1497.
5. Aman Kumar v. State of Haryana, A.I.R. 2004 S.C. 1497.
6. Anda & Ors. v. State of Rajasthan, A.I.R. 1966 S.C. 148.
7. Anil Kumar Sharma v. State of H.P., 2015 S.C.C. OnLine H.P. 3758.
8. Anis Beg v. Emperor, A.I.R. 1924 All. 215.
9. Bakshish Singh v. State of Punjab, A.I.R. 1971 S.C. 2016.
10. Basdev v. State of PEPSU, 1956 S.C.R. 363.
11. Bhagubhai Dullabhabhai Bhandari v. District Magistrate, Thana, A.I.R. 1956 S.C. 585.
12. Bharat Aaratmal Ramtara @ Kara v. The State of Maharashtra, (2012) 1 A.I. R. Bom. R
793.
13. Bhoora Yadav @ Rahul v. State of U.P., (2016) 93 A.C.C. 597.
14. Bhungee Ahur, (1865) 2 WR (Cr) 5.
15. Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi & Anr., 2012 S.C.C.
OnLine S.C. 1043.
16. Bishnu Dayal v. State of Bihar, A.I.R. 1981 S.C. 39.
17. Biswanath Mallick v. State of Madras, A.I.R. 1965 S.C. 942.
18. Biswanath Mallick v. State of Orissa, 1995 Cri. L.J. 1416 (Ori).
19. Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 117.
20. Chandi Charan v. Bhabataran (1964) 2 Cri. L.J. 85 (Cal).
21. Chandrabhan @ Aba Jaggan Salunke v. The State of Maharashtra, 2015 S.C.C. OnLine
Bom. 6156.
22. Deelip Singh @ DIlip Kumar v. State of Bihar, A.I.R. 2005 S.C. 203.
23. Deelip Singh v. State of Bihar, (2005) 1 S.C.C. 88.
24. Deepak Verma v. State of Himachal Pradesh, (2011) 10 S.C.C. 129.
25. Dilip v. State of M.P., (2003) Cri. L.J. 2449 (S.C.).
26. Dinesh Chandra Jamuna Das Gandhi v. State of Gujrat, (1989) 1 S.C.C. 420.
27. EERA v. State (NCT of Delhi) & Anr., 2017 S.C.C. OnLine S.C. 787.
28. Empress v. Joygopal, 4 WR (Cri.) 4.
viii
29. Exploitation of children in orphanages in state of Tamil Nadu v. Union of India & Ors.,
2017 S.C.C. OnLine S.C. 534.
30. Fateh Chand v. State of Haryana, (2009) 15 S.C.C. 543.
31. Gopal Krishan v. State of Punjab, 2003 Cri. L.J. 2851 (P&H).
32. Guddu v. State of M. P., (2007) 14 S.C.C. 454.
33. Independent Thought v. Union of India & Anr., 2017 S.C.C. OnLine S.C. 1222.
34. Independent Thought v. Union of India, (2017) 10 S.C.C. 800.
35. Iqbal v. State of Kerala, (2007) 12 S.C.C. 724.
36. Jageer Singh v. State of Rajasthan, (1998) 7 S.C.C. 372.
37. Jinish lal Shah v. State of Bihar, (2003) 1 S.C.C. 605.
38. Joseph Kurian v. State of Kerala, A.I.R. 1995 S.C. 4.
39. K.K. Saravana Babu v. State of Tamil Nadu & Anr., (2008) 9 S.C.C. 89.
40. Kaini Rajan v. State of Kerala, (2013) 9 S.C.C. 113.
41. Kartik Malhar v. State of Bihar, (1996) Cri. L.J. 889.
42. Kathi v. State, (2013) 12 S.C.C. 710.
43. Koppula Venkat Rao v. State of A.P., (2004) 3 S.C.C. 602.
44. Madan Lal v. Jaswant Batra, 1994 Cri. L.J. 1767.
45. Madhukar Damu Patil v. State of Maharashtra, 1996 Cri. L.J. 1062.
46. Mahender v. State of Delhi, 2017 S.C.C. OnLine Del. 9031.
47. Manik Taneja v. State of Karnataka, (2015) 7 S.C.C. 423.
48. Meena v. State of Haryana, 2015 S.C.C. OnLine P&H 16380.
49. Muruga Goundan v. Emperor, 15 Cri. L.J. 599.
50. Nikhil Soni v. State of H.P., 2015 Cri. L.J. 1299.
51. Nilesh Sundar Shetty v. State of Maharashtra, (2016) S.C.C. OnLine Bom 8588.
52. P.W. Khan v. State, A.I.R. 1962 Cal. 641.
53. Pardesi v. State, 1968 A.W.R. 711 (H.C.).
54. Parminder Singh @ Ladka Pola v. State of Delhi, A.I.R. 2014 S.C. 1034.
55. Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar, (2007) 7 S.C.C.
56. Pradeep Kumar Verma v. State of Bihar, A.I.R. 2007 S.C. 3059.
57. Prakash v. State of Haryana, (2004) 1 S.C.C. 39.
58. Prithichand v. State of H.P., A.I.R. 1989 S.C. 792.
59. R. v. Dhania Daji, 5 Bom H.C. (Cri.) C 59.
60. R. v. Hurley, (1830) 4 C&P 369.
ix
61. R. v. JotteeGhoraee, 1 WR (Cr) 7.

62. Rabindranarayan Das v. State of Orissa, (1992) Cri. L.J. 269 (Ori).
63. Raj Kumar v. State of H.P., 2014 S.C.C. OnLine H.P. 5027.
64. Rajendra Datta Zarekar v. State of Goa, A.I.R. 2008 S.C. 572.
65. Rajesh Namdeo Matre v. State of Maharashtra, (2002) 4 L.J. 266.
66. Ramachandrappa v. State of Haryana, 1976 Cri. L.J. 452 (P&H).
67. Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, A.I.R. 2008 S.C. 927.
68. Ratanjeetsing Brahmajeetsing Sharma v. State of Maharasthtra, (2004) 106 (4) Bom. L.R.
119.
69. Re. Kuruba Chinna Hanumakka, A.I.R. 1943 Mad. 396.
70. Romesh Chandra v. State, 1960, 1 S.C.R. 924.
71. S. Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942.
72. Sakshi v. Union of India, A.I.R. 2004 S.C. 3566.
73. Satish Kumar Jayanti Lal Dabgar v. State of Gujrat, (2015) Cri. L.J. 1959 (S.C.).
74. Sh. Zosangliana v. State of Mizoram, 2005 Cri. L.J. 1057 (Gau).
75. Shakib Shahajan Shaikh v. The State of Maharashtra, 2018 S.C.C. OnLine Bom. 5776.
76. Shankar Kishanrao Khade v. State of Maharashtra, (2013) 5 S.C.C. 546.
77. Shri Vasant Vaman Pradhan v. State of Maharastra 2004 (1) Mah. L.J. 487 (Bom.).
78. Shyam Narain v. State, (NCT of Delhi) (2013) 7 S.C.C. 77.
79. State of Haryana v. Rajaram, A.I.R. 1973 S.C. 819.
80. State of Karnataka v. F. Nataraj, (2015) 9 S.C.C. 91.
81. State of Karnataka v. Revannaiah, 2005 Cri. L.J. 2676 (Kant).
82. State of Kerala v. Kundumkara Govindan, 1969 Cri. L.J. 818 (Ker.).
83. State of Maharastra v. Prakash Mane, 1980 Cri. L.R. (Mah.) 146.
84. State of Mizoram v. Rualhleithanga, 2005 Cri. L.J. 3184 (Gau).
85. State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384.
86. State of Punjab v. Rakesh Kumar, A.I.R. 2009 S.C. 392.
87. State of Rajasthan v. Om Prakash, A.I.R. 2002 S.C. 2235.
88. State of Tamil Nadu v. Ravi alias Nehru, (2006) 10 S.C.C. (Cri.) 133.
89. State of Uttar Pradesh v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840.
90. State of Uttar Pradesh v. Bablunath, (1994) 6 S.C.C. 29.
91. State of Uttar Pradesh v. Chhoteylal, (2011) 2 S.C.C. 550.
92. State v. Kesar Singh, 1977 Cri. L.J. (NOC) 185 (J&K).
x
93. Suleman & Anr. v. State of Delhi, (1999) 4 S.C.C. 146.

94. Superintending Engineer, Public health, U.T. Chandigarh & Ors. v. Kuldeep Singh &
Ors., (1997) 9 S.C.C. 199.
95. SushilaTeluni v. State, I.L.R. 1959 Cut. 682.
96. Tammineedi Bhaskara Rao and Ors v. State of Andhra Pradesh and Anr, 2007 Cri. L.J.
1204 (A.P.).
97. Tarekshwar Sahu v. State of Bihar, (2006) 8 S.C.C. 560.
98. Tilak Raj v. State of H.P., (2016) 4 S.C.C. 140.
99. Uday v. State of Karnataka, (2003) 4 S.C.C. 46.
100. Uka Ram v. State of Rajasthan, (2001) 5 S.C.C. 254.
101. Uma Shankar v. State of Chhattisgarh, (2001) 9 S.C.C. 642.
102. Union of India & Ors. v. Nagesh & Anr., (2002) 7 S.C.C. 603.
103. Vishal v. Avinash Ram Sadphule, 2014 S.C.C. OnLine Bom. 1887.
104. Wahid Khan v. State of Madhya Pradesh, A.I.R. 2010 S.C. 1.
105. Zahoor Ali v. State of U.P., 1989 Cri. L.J. 1177 (All.).
xi
STATEMENT OF JURISDICTION
The prosecution has approached the Hon’ble Special (POCSO) Sessions Court at
Starwalker under §177 r/w §209 of Act 2 of 1974 along with §28(1) of Act 32 of 2012.
§177 (Act 2 of 1974): Ordinary place of inquiry and trial
Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.
§209 (Act 2 of 1974): Commitment of case to Court of Session when offence is triable
exclusively by it
When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall-
a) Commit the case to the Court of Session.

b) Subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;
c) Send to that Court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
d) Notify the Public Prosecutor of the commitment of the case to the Court of Session.
§28 (Act 32 of 2012): Designation of Special Courts

For the purposes of providing a speedy trial, the State Government shall in consultation with
the Chief Justice of the High Court, by notification in the Official Gazette, designate for each
district, a Court of Session to be a Special Court to try the offences under the Act
Provided that if a Court of Session is notified as a children's court under the Commissions for
Protection of Child Rights Act, 2005 or a Special Court designated for similar purposes
under any other law for the time being in force, then, such court shall be deemed to be a
Special Court under this section.
xii
STATEMENT OF FACTS
BACKGROUND
Mr. Tridev Shukla is the D.C.P. of Starwalker City police administration. Ms. Sitara Nayak
approached Mr. Shukla with request to mediate on her family’s behalf for a property. Mr.
Shukla agreed but no agreement on the same could be met out. The relations between the two
soured but later in December, 2012 Ms. Nayak invited Mr. Shukla to her home where he met
Wareena Nayak, d/o Ms. Sitara Nayak.
PAST RECORD
Ms. Kanyakumari Anand who also works with the department as an Inspector and reports to
Mr. Shukla, had filed a sexual harassment complaint against him.
INCIDENT ON 07/02/2013
At around 1300 hrs Mr. Shukla called Wareena and asked to meet near her coaching at
District Centre to give her history notes. From there, he took her to his house and offered a
cup of coffee. Wareena became unconscious after administering coffee.
At around 1400 hrs, she regained her consciousness and found herself naked in the bedroom
of Mr. Shukla. Mr. Shukla informed her that he had sexual intercourse with her and also
threatened her not to inform about the same to anyone.
INCIDENT ON 27/02/2013
At 2000 hrs finding Wareena alone in her house, Mr. Shukla came to her place and tried to
rape her. Ms. Sitara Nayak along with her son came to the rescue of her daughter and was
informed about the events of 07.02.2013.
INVESTIGATION
On 28/02/2013 at around 0000 hrs police was informed about the whole incident and F.I.R.
was filed against Mr. Tridev Shukla. A Final Form Report was filed & Mr. Tridev Shukla
was charged u/s. 328, 363, 376 & 506 of Trindian Penal Code, 1860 along with §6 of
Protection of Children from Sexual Offences Act, 2012.
xiii
STATEMENT OF CHARGES
According to the submitted Final Form Report of F.I.R. No. 24/2013 dated 27/02/2013
the accused has been charged u/s.
328 (45 of 1860)1 Causing Hurt by means of poison, etc. with intent to commit an offence
363 (45 of 1860)2 Punishment for Kidnapping
376 (45 of 1860)3 Punishment for Rape
506 (45 of 1860)4 Punishment for Criminal Intimidation
6 (32 of 2012)5 Punishment for Aggravated Penetrative Sexual Assault
1
Causing hurt by means of poison, etc., with intent to commit an offence - Whoever administers to or
causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other
thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an
offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
2
Punishment for kidnapping - Whoever kidnaps any person from India or from lawful guardianship, shall be
punished with imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
3
Punishment for rape - Whoever, except in the cases provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term which shall not be less than seven years but which
may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women
raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with both: Provided
that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.
4
Punishment for criminal intimidation - Whoever commits, the offence of criminal intimidation shall be
punished with imprisonment of either description for a term which may extend to two years, or with fine, or
with both.
5
Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual
assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which
may extend to imprisonment for life and shall also be liable to fine.
xiv
STATEMENT OF ISSUES
ISSUE – 1
WHETHER MR. TRIDEV SHUKLA (HEREINAFTER ACCUSED) IS GUILTY OF THE OFFENCE

UNDER §328 OF TRINDIAN PENAL CODE, 1860?
ISSUE – 2
WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §363 OF TRINDIAN PENAL
CODE, 1860?
ISSUE – 3
CODE, 1860?
ISSUE – 4
CODE, 1860?
ISSUE – 5
WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §6 OF THE PROTECTION OF

CHILDREN FROM SEXUAL OFFENCES ACT, 2012?
xv
SUMMARY OF ARGUMENTS
-I-
[1.] WHETHER MR. TRIDEV SHUKLA (HEREINAFTER ACCUSED) IS GUILTY OF THE OFFENCE
UNDER §328 OF TRINDIAN PENAL CODE, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker,
there are multiple incidents and evidences that corroborate the fact that the accused is guilty
for the offence of administering drugs to the victim with the intent to commit an offence u/s.
328. In order to bring affluent conviction under this charge it is pertinent to refer to essentials
of this §. The acts of the accused satisfy all the pre-requisites and there are material evidences
to prove the guilt of the accused u/s. 328 of T.P.C., 1860.
-II-
[2.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §363 OF TRINDIAN PENAL
CODE, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker
that there are multiple incidents and evidences that corroborate the fact that the accused is
guilty for the offence of kidnapping u/s. 363. In order to bring affluent conviction under this
charge it is pertinent to refer to essentials of kidnapping. Further there are multifarious
episodes that put on the endeavours made by the defendant. The acts of the accused satisfy all
the pre-requisites of kidnapping and there is material evidence to prove the guilt of the
accused u/s. 363 of T.P.C., 1860.
-III-
CODE, 1860?
xvi
It is humbly submitted before the Hon’ble Special (POCSO) Court of Sessions, Starwalker,
that there are prolific developments and evidences that corroborate the fact that the accused
Mr. Tridev Shukla is guilty for the offence of rape under §376. On a harmonious reading of
§376 and State of Uttar Pradesh v. Bablunath we see, two important ingredients necessary
to constitute the offence of rape are: [1] an act of sexual intercourse by a man with a woman,
[2] the act must fall under any of the seven clauses of §375.
-IV-
CODE, 1860?
Criminal intimidation, which is punishable u/s. 506, is defined in §503, Trindian Penal Code
as follows: ‘Whoever threatens another with any injury to his person, reputation or property
with intent to cause alarm to that person, or to cause that person to do any act which he is not
legally bound to do, as the means of avoiding the execution of such threats, commits criminal
intimidation.’
-V-
[5.] WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE UNDER §6 OF THE PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012?
that the facts of the case and the evidences corroborate and show the guilt of the accused
under §6 of POCSO Act, 2012 beyond all reasonable doubts.
“Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous
…” This means to prove the guilt of any person under §6 of POSCO Act, 2012 the necessary
ingredients to be proved are: [1.] Commission of aggravated penetrative sexual assault. And
[2.] the act is committed by the accused. [3.] Burden of proof is on the defence.
xvii
ARGUMENTS ADVANCED
[1.] Whether Mr. Tridev Shukla (Hereinafter Accused) is guilty of the offence under
§328 of Trindian Penal Code, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker6,
there are multiple incidents and evidences that corroborate the fact that the accused is guilty
for the offence of administering drugs to the victim with the intent to commit an offence u/s.
3287. In order to bring affluent conviction under this charge it is pertinent to refer to
essentials of this §. The acts of the accused satisfy all the pre-requisites and there are material
evidences to prove the guilt of the accused u/s. 328 of T.P.C., 1860.
[1.1] The acts of the accused satisfy all the pre-requisites.

In the case of Madhukar Damu Patil v. State of Maharashtra,8 the Hon’ble court held that
in order to establish an offence under this §, the prosecution must prove that;
(i) The accused must administer to, or caused to be taken by,9 any person10, a thing;
(ii) The said thing was any poison11, or a stupefying, intoxicating or unwholesome
drug,12 or any other thing13; and
(iii) The accused did so:
(a) Intending to cause hurt14 to the said person15, or
(b) Knowing it to be likely that he will thereby cause hurt,16 or
(c) Intending to commit, or to facilitate the commission of an offence17.
[1.1.1]Accused administered drugs to the victim

In the case of Joseph Kurian v. State of Kerala18, the Hon’ble Supreme Court held that the
offence under this § is complete even if no hurt is caused to the person to whom the poison or
any other stupefying, intoxicating, or unwholesome drug is administered. In order to prove an
6
Trial Proposition.
7
The Indian Penal Code, 1860.
8
1996 Cri. L.J. 1062.
9
R v. Hurley, (1830) 4 C&P 369; Pardesi v. State 1968 A.W.R. 711 (H.C.).
10
R v. Dhania Daji, 5 Bom. H.C. (Cr.) C 59.
11
Sushila Teluni v. State, I.L.R. 1959 Cut. 682.
12
Empress v. Joygopal 4 W.R. (Cr.) 4.
13
R v. Jottee Ghoraee 1 W.R. (Cr.) 7.
14
The Indian Penal Code, 1860, §319.
15
16
Anis Beg v. Emperor, A.I.R. 1924 All. 215.
17
18
Joseph Kurian v. State of Kerala, A.I.R. 1995 S.C. 4.
1
offence u/s. 328, it is required to prove that the substance in question was a poison, or any
stupefying, intoxicating or unwholesome drug etc., and the accused administered the
substance to the complainant or caused the complainant to take such substance and further he
did so with intent to cause hurt, or with the intention to commit or facilitate the commission
of an offence19.
In the present case20, in the statement of the victim,21 the accused took the victim to his house
by persuading her where he offered her a cup of coffee, mixed with some kind of drug, which
made the victim unconscious. The accused did so with the intent to commit the offence of
rape22 with the victim. Also, as per the statement of the accused,23 he offered the victim a cup
of coffee and later she woke up with no clothes. Statement of both accused and the victim are
in corroboration. Therefore, the accused is guilty of the offence u/s. 328 of T.P.C., 1860 for
administering drugs to the victim with the intent to commit rape.
[1.1.2] Intention to commit or to facilitate the commission of an offence.

In the case of Re. Kuruba Chinna Hanumakka,24 it was held that §328 renders punishable
anyone who administers, to any person, any poison with the intention to cause hurt, or to
commit or facilitate the commission of any offence.
Further, it is necessary to prove the intention or knowledge on the part of the accused to
convict a person under §328.25
In the present case, as per the statement of the accused and victim, it is quite clear that the
accused took the victim to his place and offered her a cup of coffee mixed with some drug
with the intent to commit rape on her.26 This indicates the intention of the accused and shows
that all of this was done with the motive to commit rape. Further, the accused selected the
date and time when there was no one in his home, this clearly shows his planning for the
offence.27 Therefore, the accused must be convicted u/s. 328 of T.P.C., 1860.
19
Supra note 17.
20
Trial Proposition.
21
Trial Proposition, Ex. 1, Pg. 9, Ex. 3, Pg. 12 & Ex. 4, Pg. 13.
22
23
Trial Proposition, Ex. 1, Pg. 13.
24
Re. Kuruba Chinna Hanumakka, A.I.R. 1943 Mad. 396.
25
Muruga Goundan v. Emperor, 15 Cri. L.J. 599.
26
Supra note 21.
27
Ibid.
2
[2.] Whether the Accused is guilty of the offence under §363 of Trindian Penal Code,
1860?
It is humbly submitted before the Hon’ble Special (POCSO) Sessions Court of Starwalker28
that there are multiple incidents and evidences29 that corroborate the fact that the accused is
guilty for the offence30 of kidnapping under §36331. In order to bring affluent conviction
under this charge it is pertinent to refer to the essentials of kidnapping.32 Further there are
multifarious episodes that put on the endeavours made by the defendant. The acts of the
accused satisfy all the pre-requisites of kidnapping and there is material evidence to prove the
guilt of the accused u/s. 363 of T.P.C., 1860.
[2.1] The acts of the accused satisfy all the pre-requisites of kidnapping.
In the case of Biswanath Mallick v. State of Orissa,33 the apex court restated the four
ingredients of §36334: [i.] Taking35 or Enticing36 away a minor or a person of unsound
mind.37 [ii.] Such minor must be under 16 years of age, if a male,38 or under 18 years of age,
if a female.39[iii.] The taking or enticing must be out of the keeping of the lawful guardian of
such minor or person of unsound mind,40 [iv.] Such taking or enticing must be without the
consent of such guardian.41
[2.1.1] Taking or Enticing any minor

“The object is to protect minor children from being seduced for improper purposes and to
protect the rights and privileges of guardians having lawful charge or custody of their minor
wards. The gravamen of this offence lies in the taking or enticing of a minor42 under the ages
specified in the section, out of the keeping of the lawful guardian without the consent of such
guardian.”43
28
Trial Proposition.
29
The Indian Evidence Act, 1872, §3.
30
Supra note 17.
31
32
Biswanath Mallick v. State of Madras, A.I.R. 1965 S.C. 942.
33
Biswanath Mallick v. State of Orissa, 1995 Cri. L.J. 1416 (Ori.).
34
Supra note 31.
35
Madan Lal v. Jaswant Batra, 1994 Cri. L.J. 1767.
36
Biswanath Mallick v. State of Orissa, 1995 Cri. L.J. 1416 (Ori).
37
S. Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942; State of Haryana v. Rajaram, A.I.R. 1973 S.C. 819.
38
39
Ibid.
40
Prakash v. State of Haryana, (2004) 1 S.C.C. 39.
41
Bhungee Ahur, (1865) 2 W.R. (Cr.) 5.
42
Supra note 38.
43
State of Haryana v. Raja mam, A.I.R. 1973 S.C. 819; S.Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942.
3
It is not necessary that the taking or enticing must be shown to have been by means of force
or fraud. Persuasion by the accused person which creates willingness on the part of the minor
to be taken out of the keeping of the lawful guardian would be sufficient to attract the §.44
In the present case, the accused had persuaded the victim by offering her history notes in
order to take her to his house, where other offence i.e., rape was committed by the accused on
the victim. This is quite clear from the statement of the victim given before the counsellor45
stated, “On 07.02.2013, Mr. Shukla forced me to go to his place despite my reluctance.”
Also, as per the statement of the accused,46 he agreed that the victim was reluctant to go to his
place, which corroborates the statements of the accused as well as the victim.
[2.1.2] Out of the keeping of the lawful guardian of victim

The word “keeping” implies neither apprehension nor detention, but rather maintenance,
protection and control, manifested not by continual action but as available on necessity
arising.47
Persuasion by the accused is sufficient to constitute ‘taking’ within the meaning of this §48.
Consent of the minor is wholly immaterial. It is only the guardian’s consent that takes the
case out of the purview of the §.49
In the present case, as per the statement of the accused50 and the victim51 it is quite clear that
the accused have persuaded the victim which resulted in bringing the victim out of the
keeping of the lawful guardian.
[2.1.3] Absence of consent of guardian

The taking or enticing of the minor out of the keeping of the lawful guardian must be without
his consent. The consent of the minor is immaterial.”52
In the case of Zahoor Ali v. State of U.P.,53 it was held that “if a child leaves its parents’
house for a particular purpose with their consent, it cannot be said to be out of the parents
keeping. A mere leading of a not unwilling child would be sufficient”
44
Ibid.
45
Trial Proposition, Ex. 3, Pg. 12, ¶1.
46
Trial Proposition, Ex. 4, Pg, 13.
47
Prakash v. State of Haryana, (2004) 1 S.C.C. 39.
48
49
S. Varadarajan v. State of Madras, A.I.R. 1965 S.C. 942.
50
Trial Proposition, Ex. 4, Pg, 13.
51
Trial Proposition, Ex. 1, Pg. 9, Ex. 3, Pg. 12 & Ex. 4, Pg. 13.
52
Bhungee Ahur, (1865) 2 W.R. (Cr.) 5.
4
In the present case, the victim was taken out of the keeping of the lawful guardian with their
consent by the accused. Further, the accused fulfils all the essential ingredients of §363 of
T.P.C of 1860. Hence, the accused should be held liable for kidnapping under §363.
[3.] Whether the accused is guilty for the offence under §376 of T.P.C, 1860?
It is humbly submitted before the Hon’ble Special (POCSO) Court of Sessions, Starwalker,
that there are prolific developments and evidences that corroborate the fact that the accused
Mr. Tridev Shukla is guilty for the offence of rape54 under §376.55 On a harmonious reading
of §376 and State of Uttar Pradesh v. Bablunath56 we see, two important ingredients
necessary to constitute the offence of rape are: [1] an act of sexual intercourse by a man with
a woman,57 [2] the act must fall under any of the seven clauses of §375.58
[3.1] Act of sexual intercourse was committed by the accused with the prosecutrix.
The prosecution most reverently submits before this Hon’ble court that the facts and the
circumstances of the case clearly show that there was sexual intercourse59 by the accused
with the prosecutrix without her consent.60
The essence lies in the ‘presentation’,61 however slight, of the penis,62 or ‘insertion’ of any
object or part of body(other than the penis),63 or manipulation of any part of the body of a
woman for penetration into the vagina,64 urethra, or anus of a woman.65 It is not necessary
that there should be injuries on her private parts66 or her hymen should rupture,67 or he should
ejaculate.68
53
Zahoor Ali v. State of U.P., 1989 Cri. L.J. 1177 (All.).
54
Supra note 22.
55
56
(1994) 6 S.C.C. 29.
57
Ibid.
58
Supra note 22.
59
Sakshi v. Union of India, A.I.R. 2004 S.C. 3566.
60
Shyam Narain v. State, (NCT of Delhi) (2013) 7 S.C.C. 77.
61
Wahid Khan v. State of Madhya Pradesh, A.I.R. 2010 S.C. 1.
62
State of Tamil Nadu v. Ravi alias Nehru, (2006) 10 S.C.C. (Cri.) 133.
63
Parminder Singh @ Ladka Pola v. State of Delhi, A.I.R. 2014 S.C. 1034.
64
Anil Kumar Sharma v. State of H.P., 2015 S.C.C. OnLine H.P. 3758.
65
Independent Thought v. Union of India, (2017) 10 S.C.C. 800.
66
Fateh Chand v. State of Haryana, (2009) 15 S.C.C. 543.
67
Guddu v. State of M.P., (2007) 14 S.C.C. 454; Rajendra Datta Zarekar v. State of Goa, A.I.R. 2008 S.C. 572;
State of Karnataka v. F. Nataraj, (2015) 9 S.C.C. 91.
68
Aman Kuman v. State of Haryana, A.I.R. 2004 S.C. 1497; Tarekshwar Sahu v. State of Bihar, (2006) 8 S.C.C.
560.
5
In the present case this is established with the help of evidences [3.1.1] Witness Statement,
and [3.1.2] Documentary Evidences.
[3.1.1] Witness Statement
Keeping in mind that it is not for the prosecution to meet any and every hypothesis suggested
by the accused, howsoever extravagant and fanciful it might be,69 it is humbly submitted
before this Hon’ble court that the circumstantial evidence in the instant matter shows that
within all human probabilities, the act is done by the accused.70
It is a well-known maxim that ‘Evidence has to be weighed and not counted’71 and it has
been given statutory placement u/s. 134 of Evidence Act72 which states that no particular
number of witnesses is required.73 Also, on congenial reading of §114A of T.E.A.74 and
Rajesh Namdeo Matre v. State of Maharashtra,75 it is evident that the accused has to prove
that the woman consented to sexual intercourse.76 In the present case the testimony of the
prosecutrix under §161 of Cr. P. C. (Ex-4),77 the statements of Ms. Sitara Nayak,78 Riyayat
Nayak,79 and the Statements of other P. W.’s,80 completes the chain of circumstances81 and
the statement of the witnesses are the blocks of circumstances that build the chain of the
accused’s guilt.
Also, the prosecutrix has given §16482 statement which can be basis for the conviction.83 Sole
reliance on single witness testimony was upheld in various cases. 84Therefore, the accused is
guilty of the above-mentioned offence.
[3.1.2.] Documentary Evidences

A well-known dicta states that, ‘a man may lie, but a document will not’,85 documentary
evidences prevail over oral evidences,86 and this case has several documentary evidences
69
State of Uttar Pradesh v. Ashok Kumar Srivastava, A.I.R. 1992 S.C. 840.
70
Bakshish Singh v. State of Punjab, A.I.R. 1971 S.C. 2016.
71
Nikhil Soni v. State of H.P., 2015 Cri. L.J. 1299.
72
The Indian Evidence Act, 1872, §134.
73
Kartik Malhar v. State of Bihar, (1996) Cri. L.J. 889.
74
The Indian Evidence Act, 1872, §114A.
75
(2002) 4 L.J. 266.
76
Ibid.
77
78
79
80
Trial Proposition, Ex. 4(d, e & j).
81
Chandrabhan @ Aba Jaggan Salunke v. The State of Maharashtra, 2015 S.C.C. OnLine Bom. 6156.
82
The Code of Criminal Procedure, 1973, §164.
83
Bhoora Yadav @ Rahul v. State of U.P., (2016) 93 A.C.C. 597.
84
Ramesh Krishna Madhusudan Nayar v. State of Maharashtra, A.I.R. 2008 S.C. 927.
6
which corroborates with the statement of the witnesses like – counsellor’s report under
POCSO,87 call records of the accused and the prosecutrix.88 They prove the fact that the
accused went to the coaching institute of the prosecutrix and took her along with him to his
house and raped her after sedating her.
When we combine the documentary and the oral evidences all the essentials of crime- mens
rea,89 actus reus,90 planning,91 preparation92 of the accused Tridev Shukla is clearly
highlighted.
Further, he told that he was bringing the notes to the coaching centre, but in turn did not bring
the notes and ask the victim to accompany him to his house, where he sedated her and raped
her while she was unconscious.93 This shows his intention to commit the crime.94
[3.2] The act must fall under the any of the seven circumstances of §375.
On a harmonious reading of §37595 and Shankar Kishanrao Khade v. State of
Maharashtra,96 it is sine qua non that the act of sexual penetration must fall under any of the
seven circumstances under §375.
The first two circumstances, sexual penetration without the consent of the victim 97 and
against her will98 appear synonymous.99 But, there is some distinction on basis of the element
of active opposition.100
Consent supposes three things- a physical power to act,101 a mental power of acting,102 and a
free and serious use of them.103 And, when these three things are evaluated, they make the
85
Uka Ram v. State of Rajasthan, (2001) 5 S.C.C. 254.
86
Adapala Subbaiah v. Shaik Hasan Saheb, (2007) 4 A.L.D. 196.
87
88
89
Uma Shankar v. State of Chhattisgarh, (2001) 9 S.C.C. 642.
90
Dinesh Chandra Jamuna Das Gandhi v. State of Gujrat, (1989) 1 S.C.C. 420.
91
Suleman & Anr. v. State of Delhi, (1999) 4 S.C.C. 146.
92
Koppula Venkat Rao v. State of A.P., (2004) 3 S.C.C. 602.
93
Trial Proposition, Ex. (3, 4b, 5, Final Form Report).
94
Basdev v. State of PEPSU, 1956 S.C.R. 363; Jageer Singh v. State of Rajasthan, (1998) 7 S.C.C. 372.
95
The Indian Penal Code, 1860, §375(6).
96
(2013) 5 S.C.C. 546.
97
Rabindranarayan Das v. State of Orissa, (1992) Cr. L.J. 269 (Ori.).
98
Pradeep Kumar Verma v. State of Bihar, A.I.R. 2007 S.C. 3059; Kaini Rajan v. State of Kerela, (2013) 9
S.C.C. 113.
99
Deelip Singh @ DIlip Kumar v. State of Bihar, A.I.R. 2005 S.C. 203.
100
State of Uttar Pradesh v. Chhoteylal, (2011) 2 S.C.C. 550.
101
Uday v. State of Karnataka, (2003) 4 S.C.C. 46.
102
Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar (2007) 7 S.C.C.
103
Kathi v. State, (2013) 12 S.C.C. 710.
7
consent104of a minor immaterial.105 Sexual intercourse with a woman under eighteen years of
age will amount to rape,106 whether it is done with or without her content.107 This is because
the consent of minor is no consent.108 And, in the present case the consent was also
immaterial because [a] victim is under 18 years of age109 hence, consent is immaterial.110 [b]
She was not in her senses as she was unconscious,111 hence, sexual intercourse with her
amounts to rape.112 As such consent is not informed consent as it is not given with
understanding pros and cons as well as consequences of the intended action.113
After reading of the arguments it is noteworthy that the guilt of accused is clearly highlighted
and he is liable for the punishment under §376.
[4] Whether the accused Tridev Shukla is guilty for offence under §506 of T.P.C.?
Criminal intimidation,114 which is punishable under §506,115 is defined in §503, Trindian
Penal Code as follows: ‘Whoever threatens another with any injury to his person,116
reputation117 or property,118 with intent to cause alarm to that person,119 or to cause that
person to do any act which he is not legally bound to do as the means of avoiding the
execution120 of such threats, commits criminal intimidation.’121
The scope of the section was elaborated in Romesh Chandra v. State,122 [1] the manner of
threat is an essential ingredient of the offence,123 [2] intent specified in this section is also an
essential ingredient of the offence,124 and it must be established by the evidence and must be
found as a fact. It is only the words used by the speaker that can give an idea of the evil
104
105
State v. Kesar Singh, 1977 Cr. L.J. (NOC) 185 (J&K).
106
Bishnu Dayal v. State of Bihar, A.I.R. 1981 S.C. 39.
107
Jinish Lal Shah v. State of Bihar, (2003) 1 S.C.C. 605.
108
Iqbal v. State of Kerala, (2007) 12 S.C.C. 724; State of Punjab v. Rakesh Kumar, A.I.R. 2009 S.C. 392.;
Dilip v. State of M.P., (2003) Cr. L.J. 2449 (S.C.).
109
Trial Proposition, Pg. 5, ¶4.
110
Satish Kumar Jayanti Lal Dabgar v. State of Gujrat, (2015) Cr. L.J. 1959 (S.C.).
111
Trial Proposition, Ex. 3.
112
Meena v. State of Haryana, 2015 S.C.C. OnLine P&H 16380.
113
Supra note 108.
114
115
116
Manik Taneja v. State of Karnataka, (2015) 7 S.C.C. 423.
117
Tilak Raj v. State of H.P., (2016) 4 S.C.C. 140.
118
Nilesh Sundar Shetty v. State of Maharashtra, (2016) S.C.C. OnLine Bom. 8588.
119
Bharat Aaratmal Ramtara @ Kara v. The State of Maharashtra, (2012) 1 A.I.R. Bom. R 793.
120
Bhagubhai Dullabhabhai Bhandari v. District Magistrate, Thana, A.I.R. 1956 S.C. 585.
121
Supra note 114.
122
(1960) 1 S.C.R. 924.
123
Ibid.
124
Ratanjeetsing Brahmajeetsing Sharma v. State of Maharasthtra, (2004) 106 (4) Bom. L.R. 119.
8
threatened.125 The intention is the very soul of the definition of criminal intimidation. The
intention can be gathered by the words and the sentence uttered.126
[4.1] Threatening a person with injury.

The threat referred u/s. 506 must be a threat communicated, or uttered with the intention of its
being communicated, to the person threatened for the purpose of influencing his mind.127 The
gist of the offence is the effect for which the threat is intended to have upon the mind of the
person threatened, and it is clear that before it can have any effect upon his mind it must be
either made to him by the person threatening or communicated to him in some way.128
[4.1.1] To his person, reputation, or property

In order to fulfil this ingredient, threat must be made to another with the fear of injury129 to
that person, or his reputation, or his property.
In the present matter,130 as per the statement of the victim, after the incident of 07.02.2013 the
accused started blackmailing the victim by sending her some inappropriate pictures and also
threatened her with dire consequences if she tells anyone about the incident.
[4.2] Threat must be with Intent.

In the case of Tammineedi Bhaskara Rao and Ors v. State of Andhra Pradesh and Anr,131
it was held that it must be shown that the person charged actually threatened another with
injury to his person, reputation or property, with the intention.
In the present case, it is very much clear from the statement of the victim as well as of the
accused that Mr. Tridev Shukla has committed the offence of criminal intimidation as he has
threatened the victim with injury, with the intention to cause harm.
[5.] Whether the Accused is guilty of the offence under §6 of the Protection of Children
From Sexual Offences Act, 2012?
that the facts of the case and the evidences corroborate and show the guilt of the accused
under §6 of POCSO Act, 2012 beyond all reasonable doubts.
125
State of Maharastra v. Prakash Mane, 1980 Cri. L.R. (Mah.) 146.
126
Shri Vasant Vaman Pradhan v. State of Maharastra, 2004 (1) Mah. L.J. 487 (Bom.).
127
Chandi Charan v. Bhabataran, (1964) 2 Cri. L.J. 85 (Cal.).
128
Chandi Charan v. Bhabataran, (1964) 2 Cri. L.J. 85 (Cal.).
129
Deelip Singh v. State of Bihar, (2005) 1 S.C.C. 88.
130
Trial Proposition.
131
Tammineedi Bhaskara Rao & Ors. v. State of Andhra Pradesh & Anr. 2007 Cri. L.J. 1204 (A.P.).
9
“Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous
…”132 This means to prove the guilt of any person under §6 of POSCO Act, 2012 the
necessary ingredients133 to be proved are: [1.] Commission of aggravated penetrative sexual
assault.134 And [2.] the act135 is committed by the accused. Further [3.] Burden of proof is on
the defence.
[5.1.] Commission of aggravated penetrative sexual assault.

Aggravated penetrative sexual assault136 has been defined under §5 of POCSO Act, 2012. §5
(c) of POCSO Act, 2012 states, “whoever being a public servant 137 commits penetrative
sexual assault138 on a child139”.140
Therefore, to bring the act within the preview of aggravated penetrative sexual assault141 the
following ingredients must be fulfilled142:
1. The act must be done by a public servant.143
2. There is penetrative sexual assault.144
3. The act is against a child.145
[5.1.1.] The Deputy Commissioner of Police is a public servant

§21 (8) of T.P.C., 1860 defines a public servant as, “Every officer of the government whose
duty it is, as such officer, to prevent offences146, to give information of offences, to bring
offenders to justice, or to protect the public health147, safety148 or convenience149.”150 Further
132
The Protection of Children from Sexual Offences Act, 2012, §6.
133
Mahender v. State of Delhi, 2017 S.C.C. OnLine Del. 9031.
134
Alakh Alok Srivastava v. Union of India & Ors. , 2018 S.C.C. OnLine S.C. 478.
135
136
The Protection of Children from Sexual Offences Act, 2012, §2(a).
137
138
139
The Protection of Children from Sexual Offences Act, 2012, §2(d).
140
141
Independent Thought v. Union of India & Anr., 2017 S.C.C. OnLine S.C. 1222.
142
EERA v. State (NCT of Delhi) & Anr., 2017 S.C.C. OnLine S.C. 787.
143
Centre for Public Interest Litigation v. Union of India, (2012) 3 S.C.C. 117.
144
Shakib Shahajan Shaikh v. The State of Maharashtra, 2018 S.C.C. OnLine Bom. 5776.
145
Exploitation of children in orphanages in State of Tamil Nadu v. Union of India & Ors., 2017 S.C.C. OnLine
S.C. 534.
146
Supra note 17.
147
Superintending Engineer, Public health, U.T. Chandigarh & Ors. v. Kuldeep Singh & Ors., (1997) 9 S.C.C.
199.
148
Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi & Anr., 2012 S.C.C. OnLine S.C. 1043.
149
Union of India & Ors. v. Nagesh & Anr., (2002) 7 S.C.C. 603.
150
The Indian Penal Code, 1860, §21(8).
10
it also states, “Every person151 in the service or pay of the government or remunerated by fees
or commission for the performance of any public duty by the government.”152
Further, §2 of The Police Act, 1861 states, “Subject to the provisions of this Act the pay and
all other conditions of service of members of the subordinate ranks of any police force shall
be such as may be determined by the Government”.153
Therefore, it can be concluded when both the §§ are read together that the Deputy
Commissioner of Police falls within the preview of Public Servant.
[5.1.2] Penetrative sexual assault has been committed against the victim
A person154 is said to commit “penetrative sexual assault155”156 if he penetrates157 his penis, to
any extent, into the vagina, mouth, urethra or anus of a child158 or makes the child to do so
with him or any other person159.160
Merely because vagina admitted one finger with difficulty, it cannot be inferred that there is
no penetration as the muscles might have contracted by the time of examination, when
conducted.161 Even slight penetration without emission of semen and rupture of hymen would
constitute the offence.162 Also, no marks of injuries on the penis, does not mean the offence
has not been committed.163
Doctor finding that hymen was intact164 does not rule out rape in cases of child.165 The mere
fact that hymen was intact,166 does not by itself negates the commission of rape by the
accused as tearing of hymen would depend upon the extent of penetration167 and force used
151
Supra note 15.
152
The Indian Penal Code, 1860, §21(12(a)).
153
The Police Act, 1861, §2.
154
Supra note 151.
155
156
The Protection of Children from Sexual Offences Act, 2012, §2(f).
157
JOHN GLAISTER, MEDICAL JURISPRUDENCE AND TOXICOLOGY 51 (13th ed., 1973).
158
Supra note 139.
159
Supra note 151.
160
The Protection of Children from Sexual Offences Act, 2012, §3(a).
161
Prithichand v. State of H.P., A.I.R. 1989 S.C. 792.
162
Aman Kumar & Anr. v. State of Haryana, A.I.R. 2004 S.C. 1497.
163
State of Mizoram v. Rualhleithanga, 2005 Cri. L.J. 3184 (Gau.).
164
165
State of Karnataka v. Revannaiah, 2005 Cri. L.J. 2676 (Kant.).
166
Supra note 164.
167
DORLAND, MEDICAL DICTIONARY, (32nd ed., 2011).
11
while committing sexual assault168. Slightest penetration169 is sufficient for commission of

offence of rape and proof of rupture of hymen is unnecessary.170
Non-rupture of hymen is not conclusive of the fact that there was no sexual intercourse. 171 To
prove rape, emission of semen,172 & rupture of hymen is not necessary.173
Further, delay in filing the F.I.R.174 cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same.175 It is necessary for the courts to have a sensitive
approach when dealing with cases of child rape.176
The Courts should examine the broader probabilities of a case and not get swayed by minor
contradictions or significant discrepancies in the statement of the prosecutrix.177 If evidence
of the prosecutrix inspires confidence,178 it must be relied upon without seeking corroboration
of her statement179 in material particulars.180 The testimony of the prosecutrix181 must be
appreciated in the background of the entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases involving sexual molestations.182
[5.1.3.] Victim fall within the definition of child

Child means any person below the age of eighteen years.183 Every human being below the
age of 18 years unless under the law applicable to the child, majority is attained earlier.184
Further, the Government of India has acceded on 11th December, 1992 to the Convention on
the Rights of the child.185
Therefore, the meaning of the child under POCSO will be any person below 18 years of
age.186
168
Supra note 155.
169
State of Kerala v. Kundumkara Govindan, 1969 Cri. L.J. 818 (Ker.).
170
Ramachandrappa v. State of Haryana, 1976 Cri. L.J. 452 (P&H).
171
P.W. Khan v. State, A.I.R. 1962 Cal. 641.
172
Gopal Krishan v. State of Punjab, 2003 Cri. L.J. 2851 (P&H).
173
Prithvi Chand v. State of Himachal Pradesh, A.I.R. 1989 S.C. 702.
174
175
Sh. Zosangliana v. State of Mizoram, 2005 Cri. L.J. 1057 (Gau.).
176
State of Rajasthan v. Om Prakash, A.I.R. 2002 S.C. 2235.
177
State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384.
178
Trial Proposition, Pg. 154.
179
Ibid.
180
Supra note 177.
181
Supra note 178.
182
Supra note 177.
183
Supra note 139.
184
Convention on the Rights of the Children, art. 1.
185
Preamble, The Protection of Children from Sexual Offences Act, 2012.
12
In the present case the victim is a female of 16 years of age 187 and this is an undisputed fact
of the case.188 Also, the age of the victim to be 16 years has been affirmed in the F.I.R.,189
statement of victim under section 161 Cr.P.C,190 final report from191192 & Statement before
magistrate193194.
Therefore, all the necessities195 to prove aggravated penetrative sexual assault196 are
successfully fulfilled in the present case.
[5.2.] Act is committed by the accused.

There are sufficient evidences to prove that all the acts197 of aggravated penetrative sexual
assault198 had been committed by the accused.
The victim has stated in her complaint in the F.I.R.199 that on 07/02/2013 at around 1300
hours, the accused took the victim to his house and after making her unconscious, had sexual
intercourse with the victim.200 Further, the same has also been corroborated in the statements
given by her before the counselor201, police officer202 & magistrate203. Also, the fact stated by
the victim has been affirmed by the Call Detail Records 204 and all the chain of circumstances
have been successfully linked in the present case. Further, the victim has also successfully
identified each & every place related to the offence205 and this further proves the version of
the prosecution.
186
Supra note 183.
187
188
189
190
191
192
193
194
195
Supra note 142.
196
Supra note 136.
197
Supra note 135.
198
Supra note 136.
199
200
201
202
203
Supra note 194.
204
Trial Proposition, Ex. 5, Pg. 17&18.
205
Trial Proposition, Ex. 4, Pg. 13, ¶1 & Pg. 14, ¶2&3.
13
Even the past record of the accused in the present case raises reasonable apprehension on him
and gives a reasonable suspicion that such act can be committed by him.206
On the date of 27/02/2013 at around 2000 hours, finding the victim alone, the accused again
tried to rape her and the same was seen by the mother207 & brother208 of the victim.209
Therefore, the statement of the victim210 corroborates with all the chain of circumstances211
and also there is the presence of eye-witnesses212. All of these evidence successfully prove
the guilt of the accused under §6 of The Protection of Children against Sexual Offences Act,
2012.
[5.3.] Burden of Proof is on the defence.

§29 of the Prevention of Children from Sexual Offences Act, 2012 states, “Presumption as to
certain offences – Where a person is prosecuted for committing or abetting or attempting to
commit any offence u/s. 3,213 5,214 7215 and §9216 of this Act, the Special Court shall presume,
that such person has committed or abetted to commit the offence, as the case may be, unless
the contrary is proved.”217
In the present case the accused has been charged u/s. 6 of POCSO Act, 2012 and the same is
an offence u/s. 5 of POCSO Act, 2012.218 Therefore, following the provision of §29 of
POCSO Act, 2012 the burden of proof completely and wholly lies on the defence in the
present case and in case of their failure to satisfy the court and proof their innocence, the
court is bound to presume and hold them guilty for the offence.219
206
207
208
Trial Proposition, Exhibit 4, Pg. 15, ¶3.
209
Trial Proposition, Final Report Form, Pg. 22, ¶3.
210
Supra note 194.
211
Supra note 204.
212
Supra note 207&208.
213
214
215
216
217
218
Supra note 192.
219
Vishal v. Avinash Ram Sadphule, 2014 S.C.C. OnLine Bom. 1887.
14
Further, §30(1) of POCSO Act, 2012 states, “In any prosecution for any offence under this
act which requires a culpable mental state on the part of the accused, the special court shall
presume the existence of such mental state..”220
Culpable mental state includes intention,221 motive,222 knowledge of a fact and the belief
in,223 or reason to believe, a fact.224
Therefore, the necessary elements of crime225 that is, planning, preparation, motive &
intention are to be presumed to be present. It is the burden on the defense to prove the
absence of these elements of crime and in case of their failure to achieve their burden beyond
all reasonable doubts, the court is bound to presume their presence and the accused must be
held guilty for the offence.226
220
The Protection of Children from Sexual Offences Act, 2012, §30(1).
221
Anda & Ors. v. State of Rajasthan, A.I.R. 1966 S.C. 148.
222
Deepak Verma v. State of Himachal Pradesh, (2011) 10 S.C.C. 129.
223
A.S. Krishnan & Ors. v. State of Kerala, (2004) 11 S.C.C. 576.
224
225
K.K. Saravana Babu v. State of Tamil Nadu & Anr., (2008) 9 S.C.C. 89.
226
Raj Kumar v. State of H.P., 2014 S.C.C. OnLine H.P. 5027.
15
PRAYER
Wherefore, in the light of the questions raised, arguments advanced and authorities cited, it
is most humbly prayed and implored before the Hon’ble Special (POCSO) Sessions Court,
Starwalker:
To convict accused Mr. Tridev Shukla
u/s.328, 363, 376, 506 of T.P.C., 1860 & §6 of POCSO, 2012
And
Pass any such order that this Hon’ble Court deems fit in the interests of justice, equity and
good conscience.
Place: Starwalker All of which is respectfully submitted

Date: 7th April, 2013 Counsels for the prosecution
xviii

5th KIIT National Mock Trial Competition 2019 Memorandum

Enviado por

Dados do documento

Descrição original:

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

5th KIIT National Mock Trial Competition 2019 Memorandum

Enviado por

Direitos autorais:

Formatos disponíveis

Team Code - TC_512 p

“5TH KIIT NATIONAL MOCK TRIAL COMPETITION 2019”

APRIL 5, 2019 TO APRIL 7, 2019

IN THE COURT OF SPECIAL (POCSO) SESSIONS JUDGE, AT STARWALKER

For the offences charged under:

SECTION 6 OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

Upon Submission to the

Hon’ble Special (POCSO) Sessions Court, Starwalker, Trindia

Memorandum on Behalf of the Prosecution

LIST OF ABBREVIATIONS ______________________________________________ III

INDEX OF AUTHORITIES _______________________________________________ VI

C. LEGISLATIONS / CODES / STATUTES __________________________________vii

D. INTERNATIONAL LEGISLATIONS _____________________________________vii

E. LEGAL DATABASE ____________________________________________________vii

F. CASES _______________________________________________________________ viii

STATEMENT OF JURISDICTION _________________________________________ XII

STATEMENT OF FACTS ________________________________________________ XIII

STATEMENT OF CHARGES ____________________________________________ XIV

STATEMENT OF ISSUES ________________________________________________ XV

SUMMARY OF ARGUMENTS ___________________________________________ XVI

ARGUMENTS ADVANCED _________________________________________________ 1

PRAYER ____________________________________________________________ XVIII

2. All India Reporter AIR

4. Andhra Pradesh A.P.

8. Chief Justice C.J.

9. Code of Criminal Procedure Cr.P.C.

10. Convention on Rights of the Child C.R.C.

11. Criminal Law Journal Cri. L.J.

12. Cuttack Cut.

13. Daughter of d/o

14. Delhi Del.

15. Deputy Commissioner of Police D.C.P.

16. Edition Ed.

17. Excise Law Times E.L.T.

18. Exhibit Ex.

19. First Information Report F.I.R.

20. Gauhati Gau.

21. High Court H.C.

22. Himachal Pradesh H.P.

23. Hours hrs

24. Indian Law Reporter I.L.R.

26. Karnataka Kant.

27. Kerala Ker.

28. Madras Mad.

29. Mister Mr.

30. Number No.

31. Orissa Ori.

32. Others Ors.

33. Page Pg.

36. Patna Pat.

37. Protection of Children from Sexual Offences POCSO

38. Punjab and Haryana P&H

39. Read with r/w

43. Son of s/o

44. Supplementary Suppl.

45. Supreme Court S.C.

46. Supreme Court Cases S.C.C.

47. Trindian Evidence Act T.E.A.

48. Trindian Penal Code T.P.C.

49. Under Section u/s

50. Union of India U.O.I.

51. Union Territory U.T.