JUSTICE Y.K.

SABHARWAL CONSTITUTIONAL LAW MOOT COURT

COMPETITION 2018
MEMORIAL FOR APPELLANT

23A

JUSTICE Y.K. SABHARWAL

CONSTITUTIONAL LAW MOOT COURT COMPETITION 2018

IN THE HON’BLE SUPREME COURT OF INDIA

SANDESH DE

(APPELLANT)

V.

UNION OF INDIA

(RESPONDENT)

MEMORIAL ON BEHALF OF THE APPELLANT

1
 TABLE OF CONTENTS

SERIAL NO. PARTICULARS PAGE NO.

1. INDEX OF AUTHORITIES 1

2. STATEMENT OF FACTS 2

3. STATEMENT OF JURISDICTION 5

4. ISSUES RAISED 5

5. SUMMARY OF ARGUMENTS 7

6. PLEADINGS 9

7. PRAYER 23
 JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT
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MEMORIAL FOR APPELLANT

INDEX OF AUTHORITIES

CASES

1. R. C. Cooper v. Union of India, (1970) 1 SCC 248

2. Krishna Kumar Sigh v. State of Bihar (2017)3 SCC 51
3. A.K. Royv. Union of India (1982) 1 SCC 271
4. D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378
5. S R Bommai v. Union of India (1994) 3 SCC 268
6. State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945
7. Krishna Kumar Sigh v. State of Bihar (1998) 5 SCC 643
8. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly(2016) 8
SCC 1
9. Zant v. Stephens, 462 US 862 (1983)
10. People v. Blach (2005) 35 Cal 4th 1238.
11. Bachan Singh v. State of Punjab,(1980) 2 SCC 684
12. Eddings v. Okhlahoma, 455 US 104 (1982)
13. Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 247
14. Lockette v Ohio, 438 US 586 (1978)
15. B.A Umesh v. Registrar General, High Court of Karnataka,(2011) 3SCC 85
16. Vikram Singh v. Union Of India (2015) 9 SCC 302
17. Jagdish v. State of M.P., 2010 (1) ALD (Cri) 277
18. Panchhi and others v. State of U.P (1998) 7 SCC 171
19. Dattu Ramrao Sakhare and others v. State of Maharashtra (1997) (5) SCC 341
20. State of Assam v. Mafizuddin Ahmed (1983)2 SCC 14

STATUTES

1. General Clauses Act, 1897

2. The Government of India Act, 1935
3. The Constitution of India, 1950

BOOKS:

1. Henry Campbell, Black’s Law Dictionary, 236 Bryan A Garner, 7th Edition, 1999
2. The Code of Criminal Procedure, 1973 by Ratanlal and Dhirajlal, 22nd edition 2017
3. Introduction to the constitution of India by Durga Das Basu, 22nd edition 2015.
4. The Indian Evidence Act , 1872 (1st edition Manohar and Chitaley)

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 JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT
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MEMORIAL FOR APPELLANT

STATEMENT OF FACTS

1. Sandesh De is a 35 year old upcoming, struggling painter who lives and works in

Bengaluru. He lives with his aged mother, and to make ends meet, takes drawing and

painting classes for school children of his neighbourhood in the evenings. Ms. X, a

precocious and talented 13 year old girl, was one of Mr.De’s students.

2. Mr. De used to take classes in the living room of his house, while he painted in his studio

on the first floor of his house. After classes in the evenings, he would sometimes take Ms.

X to his studio and show her his works in progress. On the occasions that Ms. X used to

be in Mr. De’s studio, the two carried out wide-ranging discussions about art and its role

in society. The conversation always ended with Mr. De giving Ms. X a hug and a peck on

her cheek. Ms. X always reciprocated the hug and kiss.

3. On 1st May 2018, Ms. X returned from her painting class with Mr. De in the evening and

told her parents that she was no longer interested in going for painting classes. Over the

next few days, they noticed that Ms. X was increasingly withdrawing from all her usual

activities, was disinterested in most things and had lost her appetite.

4. Ms. X’s parents decided to take her to a counsellor. Ms. X gradually opened up to her

counsellor and her parents during a session and informed them that on the last day that

she had gone to class, Mr. De had taken her to his studio as usual. While he was hugging

her goodbye in his usual manner, he slipped his fingers into her underwear and penetrated

her vagina. Ms. X stated that she was very confused about what was happening, managed

to unclasp herself from Mr. De’s embrace, and left for home.

5. Meanwhile, on 21st April 2018, when Parliament was not in session, his Excellency the

President of India had promulgated an ordinance amending relevant provisions of the

Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and the POCSO Act

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MEMORIAL FOR APPELLANT

to inter alia increase the quantum of punishment for crimes involving sexual violence

against minor women.

6. On 14th May 2018, Ms. X filed a complaint against Mr. De, and an FIR was promptly

registered. Trial was completed within fourteen days from the time of committal, and Mr

De was held guilty of commission of offences under s. 376(3) of the IPC read with ss. 5

& 6 of the POCSO Act. The Presiding Judge of the Special Court, giving due

consideration to applicable law, including the Ordinance and after hearing prosecution

and defense council on the question of sentence, imposed the mandatory minimum

sentence of twenty years imprisonment, in addition to a fine of Rs. 50,000 to be paid to

Ms. X.

7. Aggrieved by this judgement, Mr. De preferred an Appeal before the High Court of

Karnataka. The Appeal was dismissed in the first week of July. By 15th of July 2018, both

houses of Parliament had begun their monsoon session. Within a week of coming into

session, both Houses passed Resolutions disapproving the Ordinance, even before it could

be placed before the Houses for consideration.

8. Meanwhile, aggrieved by the decision of the High Court, Mr. De filed an Appeal in the

Supreme Court, challenging the sentence imposed on him and accepting the finding of

conviction. Mr. De additionally filed a writ petition under Article 32 of the Constitution

of India challenging the vires of the Ordinance to the extent it was applicable to his case.

9. Mr.De’s Appeal as well as his Writ Petition were listed for hearing before a three judge

bench in the Supreme Court on the 2nd of August 2018. The Bench was satisfied that the

issues raised in the Writ Petition were substantial questions of law as to the interpretation

of the Constitution and accordingly referred the same to a 5-judge Bench. Notice was also

issued in the Appeal and the same was directed to be listed along with the Writ Petition.

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 JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT
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MEMORIAL FOR APPELLANT

STATEMENT OF JURISDICTION

The Appellant has approached the Hon’ble Supreme Court of India, which, as per Article

136(1) of the Constitution of India has jurisdiction, to entertain and hear appeals by granting

special leave, in its discretion, against any kind of judgement or order, made by any Court or

Tribunal, in any proceedings, in the territory of India where justice and equity so demands.

The leave has been granted by this Hon’ble Court in the said matter.

The Hon’ble Supreme Court of India also has jurisdiction to entertain Writ Petitions under

Article 32 of the Constitution of India. The Appellant has additionally filed such a writ

petition before this Hon’ble Court, challenging the vires of the Criminal Law (Amendment)

Ordinance, 2018.

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ISSUES RAISED

I.

WHETHER THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS

ARBITRARY IN NATURE AND IMPOSES AN UNREASONABLE SENTENCE ON THE

APPELLANT?

II.

WHETHER THE STATEMENT OF THE VICTIM, WHICH LED TO THE CONVICTION

OF THE APPELLANT, IS CREDIBLE?

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MEMORIAL FOR APPELLANT

SUMMARY OF ARGUMENTS

[1]. THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS ARBITRARY IN

NATURE AND IMPOSES AN UNREASONABLE SENTENCE ON THE

APPELLANT.

It is most humbly stated that the Criminal Law (Amendment) Ordinance, 2018 is arbitrary in

nature and imposes an unreasonable sentence on the appellant because firstly, the legislative

powers given to the President by Article 123 of our Constitution, to make ordinances, is not a

parallel law making power and must be exercised only to tackle an extraordinary situation

and not any political objective. The hasty manner in which the said ordinance was

promulgated soon after the sine dine adjournment of the house shows the Executive did not

act in a bona-fide manner, as there were no extenuating circumstances which made this

ordinance necessary. Secondly, the court while hearing any appeal will be looking into the

law on which the question is raised. Here, the law under which the appellant was convicted

and sentenced doesn’t exist anymore, as a result of the Ordinance being disapproved by the

Parliament, and therefore status quo ante must be revived. Thirdly, the major objective

behind the said ordinance is only to increase the quantum of punishment, for rape, especially

of minor children. However, the prescribed mandatory punishment of minimum 20 years, in

case of rape of a minor below 16 years, is excessively unreasonable and arbitrary as it is in

contravention to the fundamental principle of criminal jurisprudence that the punishment

must be proportionate to the offence it seeks to curb. The reasonableness and non-

arbitrariness in governmental action is the core of our Constitution and the above mentioned

events evidently prove that the said ordinance is unconstitutional and a colourable use of

power by the Government.

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MEMORIAL FOR APPELLANT

[2]. THE STATEMENT OF THE VICTIM WHICH LED TO THE CONVICTION OF

THE APPELLANT IS NOT CREDIBLE.

We humbly state that the statement of the victim is not credible because firstly, children of

tender age, generally speaking, are pliable and their evidence can easily be shaped and

moulded. Though a testimony of a child is admissible, incompetency to give evidence may

arise from causes like tender age, diseases, etc. It is, therefore, desirable that absolute reliance

should not be placed on the statement of the child victim. Secondly, the victim’s statement

has some serious irregularities with respect to the facts, such as she leaving home alone after

unclasping herself from Mr. De’s embrace, whereas according to the facts, she came home

along with Mr. De on the last day of her last class. Additionally, her statement that Mr. De

slipped his fingers into her underwear and penetrated her Vagina, doesn’t mention anything

about her outer dressing or pants which ideally must be removed first, in order for Mr. De to

reach her underwear and subsequently her vagina. This leaves room for enough doubts and

speculation as to whether her state of confusion distorted her thoughts from recollecting what

actually happened and thereby questions the overall credibility of her statement.

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 JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT
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MEMORIAL FOR APPELLANT

PLEADINGS

[1]. THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS ARBITRARY IN

NATURE AND IMPOSES AN UNREASONABLE SENTENCE ON THE

APPELLANT.

1. The Criminal Law (Amendment) Ordinance, 2018 is arbitrary in nature and imposes an

unreasonable sentence on the appellant which must be quashed because firstly, the legislative

powers given to the President by Article 123 of our Constitution, to make ordinances must be

exercised only to tackle an extraordinary situation and not any political objective. Here, the

Ordinance was promulgated to gain political mileage in the upcoming Karnataka State

elections [1.1]. Secondly, the law under which the appellant was convicted and sentenced

doesn’t exist anymore, as a result of the Ordinance being disapproved by the Parliament, and

therefore status quo ante must be revived [1.2]. Thirdly, the prescribed mandatory

punishment of minimum 20 years doesn’t conform to the fundamental principle of criminal

jurisprudence that the punishment must be proportionate to the offence it seeks to curb [1.3].

[1.1.] The Ordinance was promulgated to gain political mileage and not to tackle any

extraordinary situation.

2. Article 123(1) of the Constitution of India, empowers the President to promulgate an

Ordinance, when he is satisfied that circumstances exist which render it necessary for him to

take immediate action. Legislation by Ordinances is not an ordinary source of law making but

is intended to meet extra-ordinary situations of an emergent nature, during the recess of the

legislature. The interpretation of Article 123 is to be made, first on the language of the Article

and secondly the context in which that power is reposed in the President.1 The existence of

1
R. C. Cooper v. Union of India, (1970) 1 SCC 248
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MEMORIAL FOR APPELLANT

circumstances is an objective fact. Necessity is distinguished from a mere desirability. The

expression “necessity” coupled with “immediate action” conveys the sense that it is

imperative due to an emergent situation to promulgate an Ordinance during the period when

the legislature in not in session. 2

3. Between January and April 2018, several state legislatures had passed Bills introducing

harsher punishments for sexual violence against minor girls by amending relevant provisions

of the Indian Penal Code. During the Budget Session of Parliament, at least twelve such state

amendments were pending before the President, for his assent.3 On 6th April 2018, the Budget

Session of the Parliament was adjourned sine die and just after a few days, i.e. on 21st of

April, the President promulgated the Criminal Law (Amendment) Ordinance. 4 Both the

Ordinance and the Bills passed by the respective state legislatures serves the common

purpose of introducing harsher punishments for sexual violence against minor girls and if this

was the emergent situation which compelled the President to promulgate the said ordinance

then why wasn’t this sense of emergency felt by the President when the House was in session

and when several similar laws were pending for his approval, as in that case the contents of

the said ordinance and other laws proposed by several states could have been discussed in the

house and a proper Act could have been enacted by the Parliament.

4. The manner in which the Parliament was adjourned sine die especially at a time when a

number of major political parties were focussed on campaigning for the upcoming state

elections in Karnataka, and the quick promulgation of the ordinance soon after the

2
Krishna Kumar Sigh v. State of Bihar (2017)3 SCC 51
3
Para 4, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition, 2018
4
Para 5, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition, 2018
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 JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT
COMPETITION 2018
MEMORIAL FOR APPELLANT

adjournment without reconvening the house (as Budget Session was only adjourned and

Parliament, per se wasn’t in a recess), shows that the same was done to gain political mileage

and there existed no circumstances which necessitated the promulgation of such an

Ordinance. The act of disapproving the said Ordinance through a resolution, by both Houses

of the Parliament within just a week of coming into their monsoon session, even before it

could be placed before the two Houses for consideration, clearly shows the legislatures’

displeasure and deep discontent towards the increasing use of Ordinance-making power by

the executive.5

5. The Constitution Bench, in A.K. Roy,6 while noting Ordinance making power as a

‘necessary evil’ held that “power was to be used to meet extraordinary situations and not

perverted to serve political ends.” Similarly, Justice P. N. Bhagwati, in D.C. Wadhwa v. State

of Bihar7 expressly held that the use of Ordinance should be done to tackle an extraordinary

situation and not any political objective. Also, in R.C. Cooper v. Union of India,8 the

Honourable Court opined that the satisfaction of the President can be challenged if there is no

genuine satisfaction in the circumstances of the case.

6. The Constitution (Thirty Eighth Amendment) Act, 1975, introduced among other things,

two crucial provisions into Article 123 and 213 by which the satisfaction of the President or,

as the case may be of the Governor, was declared to be final and conclusive and to be

5
Para 13, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition, 2018
6
A.K. Royv. Union of India (1982) 1 SCC 271
7
D.C. Wadhwa v. State of Bihar (1987) 1 SCC 378
8
R.C. Cooper v. Union of India (1970) 1 SCC 248

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MEMORIAL FOR APPELLANT

immune from being questioned “in any court on any ground”.9This amendment was expressly

deleted by Section 16 of the Forty Fourth Amendment.10 In S R Bommai v. Union of

India,11the impact of the 44th Amendment was discussed by the Nine Judge Constitution

Bench and the standard of judicial review was formulated by stating that “the ground of mala

fides takes in inter alia situations where the Proclamation is found to be clear case of abuse of

power, or what is sometimes called fraud on power – cases where this power is invoked for

achieving oblique ends.” Satisfaction of the President can thus be challenged on the ground

of mala fides.

7. The impugned Ordinance, therefore, could have waited a duly enacted law and the

Appellant submits that the Ordinance was issued with a mala fide intent.

[1.2] The Status quo ante must be revived as the said Ordinance doesn’t exist anymore.

8. Section 6 of the General Clauses Act12 protects rights, privileges and obligations and

continues liabilities in cases of repeal of an enactment. The issue as to whether penalty,

forfeiture or punishment which have arisen under an ordinance, which has been disapproved

or has ceased to operate, would endure is not answered by Section 6 of the General Clauses

Act.

9. An ordinance cannot, on its own terms, create right or a liability of an enduring or

irreversible nature otherwise an extraordinary power would be conferred in the hands of the

9
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 58
10
Constitution of India (Forty Fourth Amendment) Act, 1978
11
S R Bommai v. Union of India (1994) 3 SCC 268
12
General Clauses Act, 1897
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Executive which is surely not intended by our Constitution.13 If such a power were intended

to be conferred upon the Executive, it would be bringing in Section 90 of the Government of

India Act, 1935 into our Constitution through the back door. Section 90 of the Government of

India Act, 1935 gave an extraordinary power to the Governor to enact a Governor’s Act

containing such provisions as he considers necessary. The Governor had the power to

promulgate an Ordinance (Section 88) and also enact an Act (Section 90) in exercise of his

legislative powers. 14

10. The significance of having two separate provisions, Section 88 and Section 90 of the

Government of India Act, 1935 is that this Act also accepted a distinction between an

Ordinance (having a limited life) and an Act (having a ‘permanent’ life until repeal).15 If the

effect of an Ordinance promulgated by the Governor were to survive after the expiry of its

shelf life for an indefinite period, there would have been no occasion for enacting Section 90

of the Act, empowering the Governor to enact a Governor’s Act, since an appropriately

drafted savings clause in an Ordinance would serve the same purpose.

11. Appreciating this distinction, the Constituent Assembly did away with the extraordinary

power of enacting an Act conferred on the Governor under Section 90 of the Government of

India Act, 1935. However, it retained the impermanence of an Ordinance. 16 It is clear, that in

the absence of a savings clause, the Constitution does not attach any degree of permanence to

actions or transactions pending or concluded during the currency of an Ordinance. It was

13
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 105
14
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 105
15
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 102
16
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 102

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apparently for this reason that it was observed in Bhupendra Kumar Bose 17 that an ordinance

cannot have a savings clause which extends the life actions concluded during the currency of

the Ordinance. The reason for this obviously is that an Act is enacted by a Legislature while

an Ordinance is legislative action taken by the Executive.

12. If a situation could be reversed through the enactment of a retrospective law, then surely

status quo ante can be restored on lapsing of an Ordinance by efflux of time or its disapproval

by the Legislative Assembly.18 Every completed event is not necessarily permanent. What is

done, can often be undone. One should not readily assume that an Ordinance has a permanent

effect, since by its very nature it is an exercise of a limited and temporary power given to the

Executive. Such a power is not expected to be exercised to bring about permanent changes

unless the exigencies of the situation so demand.19 Basically, an effect of an Ordinance can

be considered as permanent when that effect is irreversible or possibly, when it would be

highly impractical or against public interest to reverse it. 20

13. In the instant case, various child rights organisations had been voicing their concerns

about how the Ordinance did not address the structural and institutional challenges in

securing justice to children who were victims of sexual abuse and concerns were also raised

in certain quarters as to whether the Ordinance had properly balanced the rights of accused

persons to a fair trial with the objects of deterrence and speedy conclusion of proceedings. 21

17
State of Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945

18
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 105
19
Krishna Kumar Sigh v. State of Bihar (1998) 5 SCC 643
20
Krishna Kumar Sigh v. State of Bihar (1998) 5 SCC 643
21
Para 12, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition,2018
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MEMORIAL FOR APPELLANT

This coupled with the growing disgruntlement within the Members of Parliament (who are

people’s elected representatives) about the increasing use of Ordinance-making power by the

Executive, which led to its disapproval through a resolution, by both Houses of the

Parliament within just a week of coming into their monsoon session,22evidently prove that it

is highly practical and in public interest, to reverse it.

14. An Ordinance has the same force and effect as an Act of the Legislature. However, and

this is a matter of crucial importance – clause 2 goes on to stipulate in the same, vein

significant constitutional conditions. These conditions have to be fulfilled before the ‘force

and effect’ fiction comes into being. These conditions are prefaced by the expression “but

every such Ordinance” which means that the constitutional fiction is subject to what is

stipulated in sub-clauses (a) and (b).23 The reassembling of the legislature defines the outer

limit for the validity of the Ordinance promulgated during its absence in session. Within that

period, a legislature has authority to disapprove the Ordinance, as it is done in this case.24

Significantly, our Constitution does not provide that an Ordinance shall assume the character

of enacted law beyond the tenure prescribed by the respective Article and a law has to be

enacted. Here, no new law is enacted and there was only a full-throated disapproval of the

said Ordinance.

15. Should the need arise, as in Nabam Rebia v. Deputy Speaker, Arunachal Pradesh

Legislative Assembly,25 the Court can always restore the status quo ante. Undoubtedly, there

22
Para 13, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition,2018
23
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 52
24
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 53
25
Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1
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are a few physical facts that are of an enduring nature or irreversible. For example, if an

Ordinance were to provide for the imposition of the death penalty for a particular offence and

a person is tried, convicted and executed during the currency of the Ordinance, then

obviously an irreversible situation is created and even if the Ordinance lapses by efflux of

time or is void, the status quo ante cannot be restored.26 However, in the said case the

punishment can easily be reversed by striking down the Ordinance as unconstitutional and

several people booked under this draconian law can be given a fair punishment as per the

existing Penal Laws.

16. Therefore, in light of the aforementioned events, applying the test of Public Interest or

Constitutional Necessity the Honourable Court must revive the status quo ante.

[1.3] Sentence imposed is unreasonable as punishment is not proportionate to the

offence committed.

17. Criminal justice deals with complex human problems and diverse human beings. A judge

has to balance the personality of the offender with the circumstances, situations and the

reactions and choose the appropriate sentence to be imposed. This Hon’ble Court has

observed that generally, the policy which the Court adopts while awarding sentence is that

the punishment must be appropriate and proportional to the gravity of the offence committed.

The personality of the offender as revealed by his age, character, antecedents and other

circumstances and the tractability of the offender to reform must necessarily play the most

prominent role in determining the sentence to be awarded. 27

26
Krishna Kumar Sigh v. State of Bihar (2017) 3 SCC 105

Code of Criminal Procedure, 1973 by Ratanlaland Dhirajlal(22nd edition)

27

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18. Additionally, the Supreme Courts in various jurisdictions have placed a high premium on

aggravating and mitigating circumstances.28There must be a balance between these two

factors before any sentence is imposed. Aggravating circumstances refers to “A fact or

situation that increases the degree of liability or culpability for a tortious/criminal

act.”29There is no exhaustive list of aggravating circumstances, and judges have the discretion

to identify aggravating facts which would warrant a higher sentence,30 in addition to statutory

aggravating circumstances.Mitigating factors are conditions or happenings which do not

excuse or justify criminal conduct, but are considered out of mercy or fairness in deciding the

degree of the offense the prosecutor charges or influencing reduction of the penalty upon

conviction.It is well established that factors considered as mitigating are: young age, prior

criminal record, character, lack of intent, etc.

19. In the instant case, going by the statement of the minor victim, Mr. De didn’t exert any

kind of criminal force on her, restrain her, or harass her when she unclasped herself from his
31
embrace and apparently, he also tried to apologise to her. Even from the angle of

penetration of his fingers into her vagina, the victim again didn’t state any pain or force and

thereby it wasn’t a forceful rape or torture of the victim. And from the said narration it is also

clear, that the penetration was too short and quick as the victim immediately unclasped

herself and left for home. This evidently proves that there was no brutality or cruelty inflicted

upon the victim during the act and therefore, though regrettable and serious in nature, the said

act still cannot practically be counted as an aggravated rape.

28
Zant v. Stephens, 462 US 862 (1983)
29
Henry Campbell, Black’s Law Dictionary, 236 (Bryan A Garner, 7th Edition, 1999

People v. Blach (2005) 35 Cal 4th 1238

30

31
Para 7, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition, 2018
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20. The young age of the offender is a pertinent mitigating factor. 32The underlying rationale

is that a young person is most susceptible to influence and damage.33 The possibility of

reform is higher.34 Apart from age, the prior record of the accused is another mitigating

factor.35 The antecedents of an accused and his/her subsequent conduct provide an indication

as to whether the person is a menace to society and whether the possibility of rehabilitation

exists.36

21. In the present case, the facts clearly make a reference to the young age of Mr.De, his

struggling job of taking painting classes to make ends meet and his aged mother.37 He has no

prior convictions. There is no evidence to suggest that Mr. De cannot be reformed or

rehabilitated into society. As stated before, the possibility of reform is high, owing to his

young age and family condition. The objective of punishment for rape can very well be

satisfied by awarding the statutory minimum sentence of 10 years as per the existing

provisions of Indian Penal Code read with POCSO Act, which are back in force after the

disapproval of the said Ordinance. A savage sentence is anathema to the right to life.38As

emphasized by this Hon’ble Court in Jagdish v. State of M.P,39human beings are not chattels

and should not be used as pawns in furthering some larger political or government policy.The

32
Bachan Singh v. State of Punjab, (1980) 2 SCC 684

33
Eddings v. Okhlahoma, 455 US 104 (1982)
34
Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 247
35
Lockette v Ohio, 438 US 586 (1978)
36
B.A Umesh v. Registrar General, High Court of Karnataka, (2011) 3SCC 85
37
Para 1, Statement of Facts, Justice Y.K. Sabharwal Constitutional Law Moot Court
Competition, 2018
38
Vikram Singh v. Union of India (2015) 9 SCC 302
39
Jagdish v. State of M.P., 2010 (1) ALD (Cri) 277.
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principle of proportionality is categorically stated in the Charter of Fundamental Rights of the

European Union as, “The severity of penalties must not be disproportionate to the criminal

offence.”

22. A court’s proportionality analysis should be guided by objective criteria. However, the

said Ordinance prescribes a minimum mandatory sentence of 20 years which takes away the

discretionary power of the court to evaluate the case, by its facts and the above-mentioned

factors, objectively, and leaves no other option for the Court but to impose the mandatory

minimum sentence on any convict. Hence, it is submitted that the sentence imposed on the

appellant is unreasonable and highly disproportionate, violating principles of criminal

sentencing.

[2]. THE STATEMENT OF THE VICTIM WHICH LED TO THE CONVICTION OF

THE APPELLANT IS NOT CREDIBLE.

23. The statement of the victim is not credible because firstly, absolute reliance should not be

placed on the statement of the child victim as children of tender age, generally speaking, are

pliable and their evidence can easily be shaped and moulded [2.1]. Secondly, there exists

some conjecture that her state of confusion at the time of incident distorted her thoughts from

recollecting what actually happened as her statement has some serious irregularities with

respect to the facts [2.2].

[2.1] Absolute reliance should not be placed on the statement of a child victim.

24. Courts have laid down that evidence of a child witness must find adequate corroboration

before it is relied on. It is not the law that if a witness is a child his evidence shall be rejected,

even if it is found reliable. The law is that evidence of a child witness must be evaluated more

carefully and with greater circumspection because a child is susceptible to be swayed by what

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others tell them and thus a child is an easy prey to tutoring.40 The precaution which the court

should bear in mind while assessing the evidence of a child witness is that the witness must

be a reliable one and his/her demeanour must be like any other competent witness and there is

no likelihood of being tutored.41 In the present case, Ms. X, who is only 13 years old, is not

just a child witness but the complainant herself who was under a state of depression after the

purported incident and revealed her version of the incident before a counsellor and her

parents, which leaves room for ample chances to get swayed away by the pressing and

tempting questions her mother and the counsellor may have put before her. Also, there is no

mention of any other credible evidence with which the victims’ statement has been

corroborated with.

25. Additionally, as rightly pointed out by this Hon’ble Court in State of Assam v.

Mafizuddin Ahmed,42 the evidence of a child witness is always dangerous unless it is

available immediately after the occurrence and before there were any possibility of coaching

and tutoring. The facts of the instant case, show that the complaint was filed around 14 days

later and several people like the victim’s family members, the counsellor etc. had first access

to her story. According to the facts, “Ms. X gradually opened up to her counsellor and her

parents during a session.” This means multiple sessions took place and many kinds off

twisted and emotional questions might have been asked by the counsellor and the parents,

which would have negatively affected her recollection of the actual event and thereby

absolute reliance cannot be placed on such a statement.

40
Panchhi and others v. State of U.P (1998) 7 SCC 171

41
Dattu Ramrao Sakhare and others v. State of Maharashtra (1997) (5) SCC 341
42
State of Assam v. Mafizuddin Ahmed (1983)2 SCC 14
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[2.2] Statement has some serious irregularities with respect to the facts.

26. According to the statement made by the victim, on the last day of her class, Mr. De had

taken her to his studio as usual and while he was hugging her goodbye in his usual manner,

he slipped his fingers into her underwear and penetrated her vagina. She added that she was

very confused about what was happening and managed to unclasp herself from Mr. De’s

embrace, and left for home. Mr De apparently tried to apologise to Ms. X, but seeing that she

was distressed, did not stop her from leaving.

27. A careful reading of the said statement gives rise to many intriguing questions about the

stated facts, as Ms. X was very confident about the second part of her statement in which she

says about how Mr. De tried to apologise to her and didn’t use any force or strength on her

and just let her go immediately when he saw that she was distressed but on the other hand she

starts her first part of the statement by saying she was very confused about what was

happening and goes on to say that Mr. De penetrated her vagina using his fingers after

slipping them into her underwear and all this happened when Mr. De was hugging her

goodbye. There is again no mention of any kind of force and she also didn’t mention exactly

how Mr. De managed to slip his fingers into her underwear as there surely might have been

an outer dressing or pants which would warrant a little more force and effort to pass through

before reaching the underwear. As she managed to unclasp herself immediately from the

embrace, the certainty of the above-mentioned events taking place looks absolutely grim and

there is a very clear possibility that the victim might not clearly remember exactly what had

happened. Even if we were to give the victim’s statement enough weight, still an existence of

a small possibility that Mr. De might not have, in fact, inserted or penetrated her vagina

changes the entire gravity of the incident from a rape to molestation and bring about a

fundamental change in the given case.

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28. The Court has to take into consideration the mental capacity of the child to recollect what

had happened or is the child in a position to say about the sexual act committed on her, when

the child is not aware of such acts, that too when she was in the age group of 13 to 14 years at

the time of recording of evidence before the Court. Here, Ms. X was in a state of depression

and recalled the incident after many days in a confused manner leaving room for many

doubts as to whether she clearly understood what exactly happened and whether she actually

spoke about the digital penetration part naturally recollecting it or as a silent acquiescence to

the pressing questions of the counsellor and her parents before whom she opened up.

29. Adding on to the confusion, Ms. X says she unclasped herself from Mr. De’s embrace and

left for home, and that he didn’t stop her from leaving but according to the facts, on 1st May

2018 (her last day of class), Ms. X returned from her painting class together with Mr. De in

the evening. If the facts are facts then apparently it seems that Ms. X lied about the part

where she left for home alone or there is a part of the story which she is still hiding as it

would surely not be possible for her to come along with Mr De after the happening of the said

event.

30. In light of the above mentioned very sensitive questions raised, which are pertaining to

the facts, the Hon’ble court is requested to carefully look into the matter in depth and it is

humbly submitted that the statement of the victim should not be relied upon completely

without necessary corroboration and must be treated as not credible.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1) The said Ordinance is arbitrary in nature, and status quo ante be revived,

2) That the statement of the victim is not credible and the Appellant be acquitted on

benefit of doubt.

And pass any other order, direction, or relief that this Hon’ble Court may deem fit in the

interest of justice, equity and good conscience.

All of which is humbly prayed,

23A,

Counsels for the Appellant.

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