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UNIVERSITY INSTITUTE OF LEGAL STUDIES

IN THE HONORABLE BOMBAY HIGH COURT

In The Matter Of

Mr. Sachin Mishra...................................................................Appellant

Mr. Vikram Jhadav................................................................Appellant

Mr. Aniket Salwi.....................................................................Appellant

Vs

State Of Maharashtra…....................................................Respondent

Submitted By: Submitted To:

Teesha Dr. Mohit Kanwar

22BBL70185

- Memorial On Behalf Of The Respondent

 Table of Contents

List of Abbreviations.....................................................................................................................................3

Index of Authorities.......................................................................................................................................4

Statement of Jurisdiction................................................................................................................................6

Statement Of Facts.........................................................................................................................................7

Statement Of Issues........................................................................................................................................9

Summary Of Arguments..............................................................................................................................10

Arguments Advanced...................................................................................................................................11

Issue 1: Whether the appeal against conviction is maintainable?............................................................11

Issue 2: Whether the accused conspired to commit the said crimes and in pursuance of this conspiracy
they carried out the criminal acts as charged by the prosecution?...........................................................12

Issue 3: Whether the prosecution has proved beyond reasonable doubt the common intention of the
accused by bringing on record that the said acts were committed by several persons in furtherance of
their common intention?..........................................................................................................................14

Prayer For Relief..........................................................................................................................................16

- Memorial On Behalf Of The Respondent

 List of Abbreviations

& And
AIR All India Reporters
Anr. Another
Art. Article
Cr. Criminal
CriLJ Criminal Law Journal
Ed. Edition
FIR First Information
Report
Govt. Government
ILR Indian Law Reports
IPC Indian Penal Code
Mr. Mister
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports

UOI Union Of India

Vs Versus

- Memorial On Behalf Of The Respondent

 Index of Authorities

Acts and Statutes:

 The Indian Penal Code, 1860

 The Constitution of India, 1950
 Criminal Procedure Code, 1963
 376(A) of Indian Penal Code
 397 Of Indian Penal Code
 302 Of Indian Penal Code
 404 Of Indian Penal Code
 120(B) Of Indian Penal Code

Books:

 Atvind P. Datar, Commentary on Constitution of India [2nd ed. 2007]

 DR. LM. SINGHVI, Constitution of lndia [2nd ed.] vol 1
 Durga Das Basu, Commentary on the Constitution of India; [8 thed. 2008]
 H.M. Seervai, Constitutional law of India [ 4th ed. 1993
 Shiva Rao, Framing of the Indian constitution
 Subash C Kashyap, Constitutional Law of India [2008]
 V.G. Ramaehandtan, Law of Writs [ 6th ed. 20061

Case Laws:
 Independent Thought v Union of India
 Mukesh & Anr. v State for NCT of Delhi & Ors.
 Harpal Singh & others v. State of Himachal Pradesh

- Memorial On Behalf Of The Respondent

Websites:
 www.indiankanoon.com
 www.ipleaders.com
 www.legalblog.com
 www.livelaw.com
 www.manupatra.com
 www.supremecourtcases.com

- Memorial On Behalf Of The Respondent

 Statement of Jurisdiction

The Appellant Has Filed An Appeal Before The Hon'ble High Court of Bombay To Review The
Judgment Passed By The Trail Court Of Pune. The Hon'ble High Court Has The Jurisdiction To
Hear The matter Under Section 374(2) I Of The Criminal Procedure code, 1973.

374(2) of the criminal procedure code, 1973 reads as follows:

"374. Appeals from conviction -

(2)Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven years
has been passed against him or against any other person convicted at the same trial], may appeal
to the High Court."

- Memorial On Behalf Of The Respondent

 Statement Of Facts

1. Priya, a 28-year-old Software Engineer, was working with one BPO Company, Pune. She
used to travel to her workplace and back by her company transport or public transport, or by an
auto-rickshaw in Pune.

2. On the evening of October 07, 2019, she missed her company transport as she was
working till late and near Reliance Mall on Nagar road she accepted the offer of a lift by

Sachin Mishra, Accused no. 1, in his cab. The other two Accused, Vikram Jadhav, Accused no.
2, and Aniket Salwi, Accused no. 3, were already sitting in the cab.

3. The Accused promised to take Nalini to her house in Katraj. However, they took
advantage of the fact that she was the only woman in the cab and abducted her to satisfy their
insatiable lust.

4. The Accused stripped Nalini naked and repeatedly gang-raped her for hours while driving
around different places, including Hadapsar by Magarpatta, Manjari Phata, Abalwadi, Shankar
Parvati Mangal Karyalaya on Nagar Road, Dargah at Chandan Nagar, Vadu Fata by Markal
Road and T. Ramlinga, an approver, joined the Accused during the gang-rape and also raped
Nalini.

5. Finally, the Accused No. 1,2 and 3 drove to Zarevedi Fata and brutally killed Nalini by
first strangulating her with a dupatta and then crushing her face and head with heavy stones to
destroy evidence and camouflage her identity.

6. Nalini's parents successfully followed up with the investigation team, and upon
registration of the crime on October 08, 2019, all Accused persons were arrested on

October 14, 2019.

7. The trial took place against all the Accused in the Trial Court, Pune.

8. The trio Accused, Sachin Mishra, Vikram Jadhav, and Aniket Salwi, were held guilty of
the gang-rape and murder of Nalini.

- Memorial On Behalf Of The Respondent

9. The trial court sentenced all three Accused to death under sections 376 (A), 397, 302,
404, 120(B) of IPC on July 20, 2021.However, T. Ramalinga, an approver, was sentenced to 7
years imprisonment.

10. The Accused filed an appeal in the Bombay High Court against the decision of the Trial
Court Pune to set aside the conviction and sentence.

- Memorial On Behalf Of The Respondent

 Statement Of Issues

Issue .1

Whether the appeal against conviction is maintainable?

Issue.2

Whether the accused conspired to commit the said crimes and in Pursuance of this
conspiracy they carried out the criminal acts as charged by the prosecution?

Issue.3

Whether the prosecution has proved beyond reasonable doubt the common intention of the
accused by bringing on record That the said acts were committed by several persons in
Furtherance of their common intention?

- Memorial On Behalf Of The Respondent

 Summary Of Arguments

Issue 1: Whether the appeal against conviction is maintainable?

The first issue to address is the maintainability of the appeal against conviction. The accused have

the legal right to appeal their convictions, and the justice system must ensure a fair and thorough

review of their convictions. However, it is crucial to establish that the appeal is not merely a tactic

to delay justice or escape accountability. In this case, the convicted individuals have exercised

their legal right to appeal, and the court must ensure a fair review while considering the gravity of

the crimes committed..

Issue 2: Whether the accused conspired to commit the said crimes and in pursuance of this
conspiracy they carried out the criminal acts as charged by the prosecution?

The prosecution asserts that there was a clear conspiracy among the accused to commit the
heinous crimes of gang rape and murder. The sequence of events, from the accused offering the
victim a ride, to the multiple locations where the crimes took place, strongly indicates a
premeditated plan. Nalini was abducted, sexually assaulted, and murdered, which implies a level
of coordination an intent to commit these horrific acts. The involvement of T. Ramlinga as an
approver further corroborates the existence of a conspiracy.

Issue 3: Whether the prosecution has proved beyond reasonable doubt the comm0n
intention of the accused by bringing on record that the said acts were committed by Several
persons in furtherance of their common intention?
To establish common intention as per Section 34 of the Indian Penal Code, it is not necessary that
all participants actively participate in every aspect of the crime. The prosecution argues that the
acts were committed by several persons in furtherance of their common intention, which is evident
from the nature of the crimes and the way they were carried out. All the accused were present
during the entire ordeal, and there is no evidence to suggest that any of them attempted to stop the
crimes or assist the victim. Therefore, it can be reasonably concluded that they shared a common
intention.

- Memorial On Behalf Of The Respondent

 Arguments Advanced

Issue 1: Whether the appeal against conviction is maintainable?

The prosecution may argue that the appeals against conviction are maintainable under the law.
They can reference relevant legal provisions and precedents to support the view that the accused
have the right to appeal their convictions. The prosecution may contend that the accused
conspired to commit the crimes of gang rape and murder. They may present evidence, such as
witness testimonies, phone records, or any other relevant documents, to establish that the accused
had a premeditated plan to abduct and sexually assault the victim. They may cite relevant case
laws to demonstrate that conspiracy can be established through circumstantial evidence.

Independent Thought v Union of India

Facts
In this case, the petitioner was Independent Thought, a national human rights organisation
registered in 2009. In the public interest, the petitioner filed a writ petition under Article 32
claiming that the Exception 2 to Section 375 of IPC is both arbitrary and discriminatory towards a
girl child.
The Criminal Law (Amendment) Act, 2013, increased the age of consent for sexual intercourse
from 16 to 18 years. But the Exception 2 mentions non-consensual sex of a husband with his wife
and for that, the age is above 15 years. The POCSO Act 2012 set the age of consensual sex as 18
years. Exception 2 is contradictory to Section 3 of the POCSO Act which has criminalised
penetrative sexual assault.
Judgment
The Division Bench gave the following judgment while discussing all the relevant issues related
to the case:
• The exception 2 discriminates between a married girl child and an unmarried girl child
without any reasonable nexus. It violates the bodily integrity, dignity and reproductive
choice of a girl child.
• The Parliament has increased the age for giving consent, the age from marriage to 18 years.
So the age of 15 years in exception 2 is unreasonable, unjust, unfair and violates the right
of the girl child.
• The exception 2 states that sexual intercourse or sexual act by a man with his wife is not
rape if she is above 18 years.

- Memorial On Behalf Of The Respondent

 Issue 2: Whether the accused conspired to commit the said crimes and in pursuance of this
conspiracy they carried out the criminal acts as charged by the prosecution?
To prove that the accused had a common intention, the prosecution may present arguments based
on the actions and conduct of the accused during the crimes. They may rely on the fact that the
victim was repeatedly raped by multiple individuals, which could suggest a coordinated effort.
Case laws illustrating the concept of common intention and shared criminal liability may be cited
to support their stance. The prosecution may rely on circumstantial and forensic evidence to
establish the guilt of the accused. This evidence could include DNA analysis, medical reports,
any material evidence found at the crime scenes. They may present this evidence to

demonstrate the direct involvement of the accused in the crimes.

Mukesh & Anr. v State for NCT of Delhi & Ors.

Facts
The case is famously known as the Nirbhaya case. In this case, a 23-year-old medical student
was returning after a movie with her friend and took a bus. In the bus, she was gang-raped by six
people and was brutally assaulted. After the rape, she along with her friend were thrown out of
the bus naked. The girl died while she was being treated in a hospital in Singapore.
Judgment
In this case, the Supreme Court awarded death penalty to four of the accused among six. One of
them being a juvenile was convicted by the Juvenile Justice Board and sent to the correctional
home. The other one committed suicide before the judgment was delivered.

After this case, the need to amend certain provisions of Section 375 was felt so the Criminal Law
(Amendment) Act, 2013 was brought into effect. Under the newly amended section, the
punishment of rape is at the least seven years which may extend to life imprisonment. Any man
who is a police officer, medical officer, public officer or public servant may be imprisoned for at
least 10 years if commits rape. Where rape leads to the death of the victim or entered a
vegetative state the punishment of life imprisonment extending to death has been prescribed. The

punishment for gang rape is at least 10 years.

- Memorial On Behalf Of The Respondent

- Memorial On Behalf Of The Respondent
 Issue 3: Whether the prosecution has proved beyond reasonable doubt the common
intention of the accused by bringing on record that the said acts were committed by several
persons in furtherance of their common intention?
Eyewitness testimonies, especially from the victim if there were any surviving statements, or
from any other individuals who may have witnessed any part of the crimes, could be crucial in
proving the guilt of the accused. The prosecution may argue that these testimonies corroborate
their case. The prosecution may refer to legal precedents and case laws that support the
conviction and sentencing of the accused in cases of heinous crimes like gang rape and murder.
They may argue that these precedents set a standard for the punishment of such offenses. The
prosecution may emphasize the consistent nature of the events and the statements provided by
the victim, witnesses, and the accused themselves during the investigation. They may argue that
this consistency supports the reliability of the prosecution's case.

Harpal Singh & others v. State of Himachal Pradesh

Facts
In this case, the prosecutrix who was a girl under 16 years was sent by her mother to visit her ailing
aunt in the village. While she was going the accused came to her and told her that her brother was
lying sick in the dispensary. She rushed with him, there he along with two others locked her in a
room. After that, they committed sexual intercourse with her against her will. She was later rescued
by her family who decided to keep quiet. The matter was later on published in a newspaper and
the police started the enquiry. The accused held that the girl was used to sexual intercourse and
gave consent for the same.

Judgment
The Supreme Court found enough evidence which proved that she was under 15 years old during
the sexual intercourse and as such her consent was no consent at all. The accused were held liable for
rapeunder section376 of the Indianpenalcode..

- Memorial On Behalf Of The Respondent

 Prayer For Relief

As for the prayer from the side of the respondent, without specific details, it would typically
involve the respondent (in this case, the prosecution) requesting the court to uphold the
conviction and sentencing of the accused by the Trial Court. The respondent would present
evidence and legal arguments supporting the conviction and the severity of the sentences.

Ultimately, the decision of the Bombay High Court will depend on the evidence presented, legal
arguments made, and the interpretation of relevant laws and precedents. The court will need to
carefully assess these issues and reach a verdict based on the merits of the case.

Date:

Place: ( Counsel For Appellant)

- Memorial On Behalf Of The Respondent