TEAM CODE:K

POST GRADUATE COLLEGE OF LAW, OSMANIA UNIVERSITY

INTRA MOOT COURT COMPETITION, NOV-2022

BEFORE THE HONOURABLE HIGH COURT FOR THE STATE OF TELANGANA

UNDER SECTION 375 IPC

APPELLATE JURISDICTION No: 420/2022

IN THE MATTER OF

ORVASI … COMPLAINANT

Vs.

ASHISH …DEFENDANT

FOR OFFENCES CHARGED UNDER

SECTION 375 OF UPON SUBMISSION TO THE HON’BLE MAGISTRATE OF THE

HIGH COURT, HYDERABAD

MEMORIAL ON BEHALF OF THE PETITIONER

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 WRITTEN SUBMISSION ON BEHALF OF THE COMPLAINANT

TABLE OF CONTENTS
PAGE NO.

1) LIST OF ABBREVIATIONS

2) INDEX OF AUTHORITIES

3) STATEMENT OF JURISDICTION

4) STATEMENT OF FACTS

5) STATEMENT OF ISSUES

6) SUMMARY OF ARGUMENTS

I. Whether the multiple sexual intercourse between complainant and accused while in
relationship is ground to assume consent?
II. Whether the consensual physical intercourse under the pretext of marriage amounts to
rape?
III.Whether the photos can be entertained as evidence by the HC in this appeal?
IV. Whether the judgment of the Addl. Sessions Judge Court is liable to be over-ruled?

7) ARGUMENTS ADVANCED

8) Whether the multiple sexual intercourse between complainant and accused while in
relationship is ground to assume consent?
9) Whether the consensual physical intercourse under the pretext of marriage amounts to
rape?
10) Whether the photos can be entertained as evidence by the HC in this appeal?
11) Whether the judgment of the Addl. Sessions Judge Court is liable to be over-ruled?

12) PRAYER

MEMORIAL ON BEHALF OF THE PETITIONER

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LIST OF ABBREVIATIONS

& And
¶ Paragraph
AIR All India Reporter
ALL Allahabad
Anr. Another
AP Andhra Pradesh
Art. Article
Cr. Criminal
Edn. Edition
Govt. Government
HMA Hindu Marriage Act
Hon’ble Honourable
i.e. That is
No. Number
PC Privy Council
SC Schedule Caste
SC Supreme Court
SCC Supreme Court Cases
u/s Under Section
v. Versus
Vol. Volume
www World Wide Web

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 INDEX OF AUTHORITIES

TABLE OF CASES

Sl.No Case Law Page No.

DATABASE REFERRED
1. www.indiankanoon.org

3. www.advocatekhoj.com

4. www.devgan.in

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 STATEMENT OF JURISDICTION

SECTION 382 OF Cr.pc

382. Petition of appeal. Every appeal shall be made in the form of a petition in
writing presented by the appellant or his pleader, and every such petition shall
(unless the Court to which it is presented otherwise directs) be accompanied by
a copy of the judgment or order appealed against

SECTION 386 OF CR.PC

386. Powers of the Appellate Court.—After perusing such record and hearing
the appellant or his pleader, if he appears, and the Public Prosecutor if he
appears, and in case of an appeal under section 377 or section 378, the accused,
if he appears, the Appellate Court may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may— (a) in an appeal from an
order or acquittal, reverse such order and direct that further inquiry be made, or
that the accused be re-tried or committed for trial, as the case may be, or find
him guilty and pass sentence on him according to law; (b) in an appeal from a
conviction— (i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re-tried by a Court of competent jurisdiction
subordinate to such Appellate Court or committed for trial, or (ii) alter the
finding, maintaining the sentence, or (iii) with or without altering the finding,
alter the nature or the extent, or the nature and extent, of the sentence, but not so
as to enhance the same— (c) in an appeal for enhancement of sentence— (i)
reverse the finding and sentence and acquit or discharge the accused or order
him to be re-tried by a Court competent to try the offence, or (ii) alter the
finding maintaining the sentence, or (iii) with or without altering the finding,
alter the nature or the extent, or, the nature and extent, of the sentence, so as to
enhance or reduce the same; (d) in an appeal from any other order, alter or

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reverse such order; (e) make any amendment or any consequential or incidental
order that may be just or proper: Provided that the sentence shall not be
enhanced unless the accused has had an opportunity of showing cause against
such enhancement: Provided further that the Appellate Court shall not inflict
greater punishment for the offence which in its opinion the accused has
committed, than might have been inflicted for that offence by the Court passing
the order or sentence under appeal.

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 STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the
present case are summarised as follows:

For the sake of brevity and convenience of this Hon’ble Court the facts of the
present case are summarised as follows:

 Ashish, aged 24 Years, residence of L.B Nagar, Hyderabad and Orvasi, aged
23 Years, they both live in L.B. Nagar Hyderabad, neighbours in same
colony.
 They met each other during the Celebration of Ganesh Chaturthi in their
colony in the year 2018.
 Since, then they liked each other and gradually developed feelings on each
other. Subsequently they mutually entered into relationship and were
confident to live life together by getting married in future.
 They were happy in their relationship by going to several dates, knowing
each other’s families, friends and travelling to places.
 Ashish and Orvasi promised each other to get married by convincing their
families by 2021.
 Annie, who is a close friend of Orvasi and Raju who is a close friend of
Ashish are well known with the fact that both Ashish and Orvasi are in
relationship and being friends, they supported their respective friends in
every situation.
 In several occasions, Ashish and Orvasi became intimate and had sexual
intercourse at the place of Raju. In fact, in one of the occasions, Orvasi took
selfies in her mobile phone when they were physically intimate.
 During September 2020, when they met at Raju’s house, they had sexual
intercourse. Subsequently certain misunderstandings developed between
them and they started hating each other and eventually their relationship
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 faced hardship to subsists and moreover their families refused to solemnize
their marriage owing to differences in their social status.
 Subsequently, Ashish changed his contact information, married Sheetal in
October 2020 moved and started living in Khammam and did not come into
contact with Orvasi in any way, breaching the promise of marriage he made
to Orvasi.
 Aggrieved with this act of Ashish, Orvasi decided to file a criminal
complaint by accusing him of rape under the pretext of marriage.
 FIR No. 420/2021 u/s 375 of IPC was filed on December 21, 2021.

Outcome of trail before Addl. Sessions Judge, Ranga Reddy:

 Trail of FIR No. 420/2021 against Ashish was conducted before Addl.
Sessions Judge, RangaReddy Dist. Court.
 Friends of Ashish and Orvasi viz.; Raju and Annie respectively, were
examined as Prosecution Witness No. 2 and 3 respectively to establish the
relationship between Complainant and Accused.

Medical Report of the complainant was also relied upon by the Prosecution,
which didn’t mention traces of any semen but it provided that the complainant
was sexually active.
 The court of Addl. Sessions Judge, after considering the evidences,
acquitted Ashish by reasons that Prosecution failed to establish that there
was multiple sexual intercourse between the accused and the
complainant, without the consent of the complainant.

 Aggrieved by the order of the Addl Sessions Judge, Orvasi chose to

challenge the acquittal before the High Court for the State of Telangana.
Additionally, Orvasi produced the photos which she took when Ashish
and she were physically intimate, as evidence, to establish the physical

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 relationship that subsisted between them, in the High Court. Now the
Appeal is before the High Court. Decide the same.

EVIDENCES:
P.W 1: Orvasi.
P.W 2: Raju.
P.W 3: Annie.
Ex.P 1 : FIR.
Ex.P 2 : Medical Report of Complainant.
Ex.P 3 : Photos (selfies taken by Orvasi).

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 STATEMENT OF ISSUES

Issues I

Whether the multiple sexual intercourse between complainant and accused

while in relationship is ground to assume consent?

ISSUE II

Whether the consensual physical intercourse under the pretext of marriage

amounts to rape?

ISSUE III

Whether the photos can be entertained as evidence by the HC in this appeal?

ISSUE IV

Whether the judgment of the Addl. Sessions Judge Court is liable to be over-
ruled?

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 SUMMARY OF ARGUMENTS

I. Whether the multiple sexual intercourse between complainant and

accused while in relationship is ground to assume consent?
No, U/s section 90 of IPC it is not a free consent the consent given by the
appellant because the respondent has induced her that he will marry in the
future.

The appellant had a confident that the respondent would really marry her
in the future by 2021 and by thinking that the appellant had never refused
of having the sexual intercourse with the respondent.

If the respondent would not have given the promise to marry the appellant
in the future, then the appellant would refuse to have sexual intercourse.

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II. Whether the consensual physical intercourse under the pretext of
marriage amounts to rape?

YES, the consent for sexual intercourse obtained by the pretext of marriage
amounts to Rape u/s 375 and 90 of IPC.

Here the respondent had promised the appellant that he will marry her in the
future but he failed to fulfil the promise so this amounts to rape.

If the respondent had fulfilled the promise done to the appellant, then it would
not amount to rape.

The respondent has obtained the consent from the appellant by giving the false
promise with malafide intention to cheat her by fulfilling his lust by having
sexual intercourse with the appellant and not marry her in the future.

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III. Whether the photos can be entertained as evidence by the HC in this
appeal?

Yes, the selfies taken by the appellate which were clicked at a point of time
when the appellate and the respondent were intimate at Raju’s place can be
entertained as evidence by the Hon’ble High Court as a documentary evidence
under section 65B if Indian Evidence Act, section 391 of Criminal procedure
code (Crpc) act.

Photos can be produced as evidence in the High Court as follows While the
Information Technology Act, 2000 has given legal sanctity to electronic records
under the Evidence Act, records in the form of email, image or SMS have to be
attached with a certificate under Section 65B of the Indian Evidence Act.

The appellate due to mental agony, mental disturbance and also didn’t wanted
to expose the private photos because the photos were taken when the appellate
and the respondent were in an intimate situation. But at a helpless situation the
appellate stepped forward with lots of courage to submit the selfies as a
documentary evidence in this Hon’ble High Court.

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IV. Whether the judgment of the Addl. Sessions Judge Court is liable to
be over-ruled?

YES, the judgment of Addl. Sessions Judge court can be over-ruled by the High
Court because the Addl. Sessions Judge court as per section 386 of Cr.pc.

The evidences submitted was also not examined properly.

The medical report of the appellant says that she was sexually active.

The P.W. 2 Raju has not given the full testified the truth because whenever the
appellant and respondent met to have sexual intercourse the place was at the
house of Raju who is a friend of respondent.

So the P.W. 2 Raju has not testified the full truth so that he can save the
respondent who is the friend of Raju.

The testimony of P.W. 3 annie who is a friend of Orvasi was also not
considered by the Addl. Sessions Judge Court.

The appellate due to the mental agony and due to her privacy regarding the
photographs felt not to submit photographic evidence, the selfies which were
taken by the appellate at the time when the appellate and the respondent were
intimate which shows that she was sexually active with none other than the
respondent itself.

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 ARGUMENTS ADVANCED

I. Whether the multiple sexual intercourse between complainant and

accused while in relationship is ground to assume consent?
No, the consent given under misconception is not a free consent
according to:
Section 90 in The Indian Penal Code
90. Consent known to be given under fear or 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 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 the contrary appears from the
context, if the consent is given by a person who is under twelve years of
age.
In Pramod Suryabhan Pawar v State of Maharashtra (2019), Justice Y.V.
Chandrachud quashed the FIR that had been filed by the complainant
who was an Assistant Commissioner of Sales Tax against the accused
who was a Deputy Commandant in the CRPF. In this case, the
complainant knew the accused since 1998. In this case, she alleged that in
2008 the accused established a sexual relationship with her on the
promise of marriage. In 2014, he started raising concerns about their
marriage on the grounds of her caste, but they both remained in the
relationship. This relationship continued as they both used to visit each
other’s house on various occasions and stayed together for days. In 2016

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she filed the FIR against him when he told her about his engagement with
another woman.

The Court held that in every case where a man fails to marry a woman
despite a promise made to her, cannot be held guilty for committing the
offence of rape. He can only be held guilty if it is proved that the promise
to marry was given with no intention to honour it and also that was the
only reason due to which the woman agreed to have a sexual relationship.

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II. Whether the consensual physical intercourse under the pretext of
marriage amounts to rape?

The consent for sexual intercourse obtained by a person by giving false

promise of marriage would not excuse him from rape charges. Whenever
the accused gives promise to the victim to marry her, never had any
intention to marry and the victim gave the consent for sexual intercourse
on such an assurance by the accused that he would marry her, such a
consent can be said to be a consent obtained on a misconception of fact as
per Section 90 of the Indian Panel Code, and, in such a case, such a
consent would not excuse the offender and such an offender can be said
to have committed the rape as defined under Section 375 of the Indian
Panel Code, and can be convicted for the offence under Section 376 of
the IPC.

Section 375 in The Indian Penal Code

1[375. Rape .—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) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt.

(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.
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(Fifthly) — With her consent, when, at the time of giving such consent, by
reason of 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) — With or without her consent, when she is under sixteen years of
age. Explanation .—Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.

Section 376 in The Indian Penal Code

376. Punishment for rape .—

(1) 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.

Kanwarbir Singh vs State Of Punjab on 25 November, 2020

After hearing the counsel for the parties and after going through the facts of the
case, it is apparent that the petitioner knowingly that the victim belongs to a
Scheduled Caste category and the accused belongs to an upper caste category
and also knowingly the fact that his father will not grant permission to marry
her, a fact which indeed happened committed rape on her. There are specific
allegations that the petitioner took the victim in confidence by taking her to a
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Gurudwara and making her a promise of marriage, she consented for physical
relation with him believing that the petitioner being an unmarried person will
perform marriage with her. The police, after receiving the complaint,
conducted a detailed enquiry and collected the chats between the accused and
the victim and found that the accused was even taking money from her and has
even taken objectionable photographs/videos of the victim, therefore,
considering the serious allegations against the petitioner of committing rape on
the victim on the pretext of performing marriage and then, extending threats of
making the photographs viral which are in possession of the petitioner, 5 of
6 the custodial interrogation of the petitioner is required.

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III. Whether the photos can be entertained as evidence by the HC in this
appeal?

Yes, the photos which were clicked by the appellate can be entertained by
the Hon’ble High court as an evidence.
Under following sections :-
Section 391 in The Code Of Criminal Procedure, 1973

391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it
thinks additional evidence to be necessary, shall record its reasons and may
either take such evidence itself, or direct it to be taken by a Magistrate, or when
the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the Appellate Court, and such
Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the
additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions
of Chapter XXIII, as if it were an inquiry and,

Section 65B in The Indian Evidence Act, 1872

1[65B. Admissibility of electronic records.—

(1) Notwithstanding anything contained in this Act, any information contained

in an electronic record which is printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a computer (hereinafter referred to as
the computer output) shall be deemed to be also a document, if the conditions
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mentioned in this section are satisfied in relation to the information and
computer in question and shall be admissible in any proceedings, without
further proof or production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence would be
admissible.

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IV. Whether the judgment of the Addl. Sessions Judge Court is liable to
be over-ruled?
Yes The judgment of the addl. Sessions judge is can be over ruled as on
section 386 of Crpc .
The Hon’ble Addl. Sessions Judge court has not properly examined the
p.w.2 Raju, and p.w.3. the appellate cannot submitted the photo evidence
in Hon’ble Addl. Session Judge Court.
Hon’ble Addl. Session Judge Court. The judgment passed based on the
p.w.2 and p.w.3 respectively Raju and annie. Here Raju is a close friend
of accused. And the applicant and accused are met at the Raju house only.
Annie is not a witness but she is only the friend of appellate she only
came to know about their relationship when the appellate said to her.
Any person who is aggrieved by the decision of the court can challenge
the decision before the higher court for appeal. Appeal is considered to be
a process by which the judgment or the order of the subordinate court is
challenged before the High Court.

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 PRAYER
Wherefore in the light of facts presented, issues raised, arguments
advanced and authorities cited, the Counsels on behalf of the Defendant
humbly pray before this Hon’ble Court that it may be pleased to adjudge
and declare that:
1.Convict respondent (ashish) for the offence committing of rape viz. sexual
intercourse under pretext of marriage under Section 376/90 of IPC 1860
2. Declare a sentence of imprisonment for a term which may extend to life
but not less than 7 years imprisonment and also liable for fine under
Section 376 of IPC 1860.
3.
4.

Or pass any other order that the court may deem fit in the light of equity,
justice and good conscience and for this Act of kindness of Your Lordships
the Defendant shall as duty bound ever pray.

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