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BEFORE THE HONOURABLE SESSION COURT
OF JAIPUR
State of Rajasthan (COMPLAINANT) VS. X (RESPONDENT) CASE CONCERNING ABOUT KIDNAPPING, FORCED MARRIAGE AND RAPE UNDER INDIAN PENAL CODE MEMORANDUM ON BEHALF OF COMPLAINANT SUBMITTED TO: SUBMITTED BY: MR. SHEIKH INAM NEETA SAINI ASSISTANT PROFESSOR BA.LLB (H) SSLG SEMESTER(III)
TABLE OF CONTENTS
Index of Authorities.................................................................................................................................................... Statement of Jurisdiction............................................................................................................................................ Statement Of Facts...................................................................................................................................................... Issues Raised............................................................................................................................................................... Arguments Advanced................................................................................................................................................. Prayer..........................................................................................................................................................................
STATEMENT OF JURISDICTION
The Honorable Session court has jurisdiction to try the instant matter under section 209 of Criminal Procedure Code 1973^1. (^1) 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 that the offence is triable exclusively by the court of Session, he shall- (a). Commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the court of Session, and subject to the provisions of this code relating to bail, remand the accused to custody until such commitment has been made; (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.
STATEMENT OF FACTS
On 1 September 2020 at about 1:15 hours the prosecutrix mother found that her daughter was missing. On enquiring, she found that the accused had come to meet him and had a talk with her. After that, they ( accused and prosecutrix) moves towards the market one after the other respectively. When prosecutrix's father enquired from the accused's uncle, he came to know that both of them went towards Indra Gandhi Nagar, Jaipur Rajasthan bus stand. The accused uncle's son also saw both of them together at Indra Gandhi Nagar bus stand. When the prosecutrix father reached there, he could not find any of them. F.I. R was registered on 5 September 2020 at Indiragandhi Nagar police station. On 7 September 2020, both, accused and Prosecutrix had surrendered before the Police Their statements were recorded and Prosecutrix was sent to medical examination because the age of the Prosecutrix was less than 16 years of age as per the complainant. The investigation revealed sufficient evidence against the accused and hence he was arrested on 30 November 2020. Accused claimed that he was innocent. Both, accused and Prosecutrix was in love and got married on 9 March 2020 as per Hindu rite. The marriage got registered by the marriage of registrar at Indira Gandhi Nagar, Jaipur Rajasthan. So, he maintained that it is a false case against him. Thereafter, as the case was exclusively triable by the court of sessions, the case was committed to the session’s court, Indira Gandhi Nagar, Jaipur Rajasthan.
ARGUMENTS ADVANCED
- Whether the accused is liable under section 363 of Indian Penal Code? KIDNAPPING It is humbly contended to the court that the accused is guilty of an offence of kidnapping from lawful guardianship. Section 361 of Indian Penal Code provides, ''Kidnapping from lawful guardianship- Whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of a lawful guardianship of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.'' Essentials of Section 361 :- that the person kidnapped was then a minor under 16 years of age , if a male and under 18 years of age if a female or that he was insane. that such person was in keeping of a lawful guardianship. that the accused took or enticed such person out of such keeping. that he did so without the consent of lawful guardianship. The draftsman of the code said: “The crime of kidnapping consist according to our definition of it , in conveying a person without his consent or the consent the consent of some person legally authorized to consent on his behalf or with such consent obtained by deception out of the protection of the law or of those whom the law has appointed his guardian. In Neela Bebee case^2 , it was held by the court that the mere removal of minor from the custody of the guardian is sufficient to constitute the offence. In Shivanath vs State of Madhya Pradesh^3 , it was held by the court that when there is no iota of doubt that the accused had kidnapped the prosecutrix from the lawful guardianship of her parents, the accused has been rightly convicted of the offence under Section 363 of the Indian Penal Code. GUARDIANSHIP (^2) Neela Bebee case,10 W.R. (Cr.) 33 (^3) Shivanath vs State of Madhya Pradesh, 1998 Cr.LJ 2691
It is not necessary that the girl should be in physical possession of the guardian. It is enough if it is under a continuous control which is for the first time terminated by the act complained off. She is still said to be in legal possession of her parents. She can be said to be in no longer in the keeping or control of the lawful guardian when the facts disclosed that she was either driven away from parental roof as was the case in Pandyaram Sastri vs Emperor^4 , or voluntarily abandoned the control of the guardian on account of the I'll treatment as was in the case of Southerland Weekly Reporter. It is clearly visible from the facts that the prosecutrix was neitherr driven away from parental roof nor she voluntarily abandoned the house on account of I'll treatment of his parents. Thus the accused should be liable for the offence of kidnapping. INTENTION It is humbly contended to the submitted to the court that it is clearly known that in order to constitute a crime intention is an essential ingredient but, In State vs. Sulekh Chand it is clearly mentioned by the court that, " the offence of kidnapping under Section 363 consists solely of taking a minor from the keeping of lawful guardian and no intention need to be established". AGE It is humbly contended to the court that the prosecutrix kidnapped was under the age of 16 years as mentioned in the First Information Report and it is sufficient to constitute the offence of kidnapping. In Emperor vs Ismail Sayad Saheb Mujawar^5 , it was held by the court that to constitute the offence of kidnapping a minor from lawful guardianship penalized by this section is not necessary to prove that the minor is under the age specified in section 361. CONSENT It is most humbly submitted that in case of minor consent of father is main ingredient and such consent must be legally obtained consent. (^4) Pandyaram Sastri vs Emperor, 16 I.C. 166 (^5) Emperor vs Ismail Sayad Saheb Mujawar, A.I.R. 1933 Bom. 417
- Whether X is liable for offence of rape under section375 and 376 of Indian Penal Code? It is humbly submitted before this honourable court that X is liable for the offence of rape as he had sexual intercourse with the minor girl under the age of 16 years and such sexual intercourse is falling under clause 6 of section 375 of Indian Penal Code. Rape is defined under section 375 and punishable under section 376 of Indian Penal Code. Section 375 of Indian Penal Code provides; ''A man is said to be commit "rape" if he (a). Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a women or makes her to do so with him or any other person ; or (b). inserts, to any extent, any object or part of the body, not being the penis, into the vagina, urethraor anus of a women or makes her to do so with him or any other person; or (c). manipulates any part of the body of a women so as to cause penetration into the vagina, urethra, anus or or any part of body of such women or makes her to do so with him or any other person; or (d). applies his mouth to the vagina, anus, urethra of a women or makes her to do so with him or any other person. Under the circumstances falling under any of the following seven 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 or beleives herself to be lawful married. 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 his consent, when she is under eighteen years of age. Seventhly. - when she is unable to communicate consent.'' Section 376 : Punishment of Rape:-
''Whoever except in case provided for in sub section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.'' Thus to constitute the offence of rape:
- Sexual intercourse by a man with a women
- The sexual intercourse must be under circumstances falling under any of the 7 clauses of section
The present case comes under section 375 It is most humbly submitted that accused has sexual intercourse with prosecutrix who is a girl under 16 years of age. It is clearly reflected from the facts that 1. The accused along with prosecutrix surrendered himself 2. Both of them send for a medical examination and investigation revealed sufficient evidence against the accused. 3. It is further submitted that the prosecutrix is below 18 years of age and according to clause 6 of section 375 the consent of a minor girl under the age of eighteen years is immaterial and could not give a valid consent. A girl being below 18 years of age is not competent to give consent because such child is incapable to decide what is good or what is bad for her. In Bhajan Lal vs State of Uttarakhand^8 , it was held by the court that consent if any of the victim, is immaterial if she is below 18 years for the purpose of offence under section 375 of Indian Penal Code. In Bishnudyal vs State of Bihar^9 , in this case the girl at the time of intercourse is hardly of 13 or 14 years of age and court held that on question of consent was immaterial as the offence would fall within clause 6 of definition of rape in section 375 of Indian Penal Code. In Emperor vs Asad Ali^10 it was held that the fact that such girl can discriminate between right and wrong and had invited the accused to the act are both wholly irrelevant, are wholly irrelevant for the policy of law is to protect children of such immature age against sexual intercourse. (^8) Bhajan Lal vs State of Uttarakhand on 18 April 2013 (^9) Bishnudyal vs State of Bihar, A.I.R. 1981 SC 39 (^10) Emperor vs Asad Ali, 29 Cr.L.J. 12
PRAYER
Wherefore in the light of the Issues Raised, Argument Advanced and Authorities Cited, the Honorable Session Court may be pleased to :
- Convict X for the offence of rape and punished under section 376 of Indian Penal Code.
- Convict X for the offences under section 361, 366 and punished under section 363 of Indian Penal Code. AND/OR Pass any other order, direction or relief that it deems fit in the interest of Justice, Equity and Good Conscience. For this act of kindness, the Complainantt shall duty bound forever pray. ( COUNSEL ON BEHALF OF COMPLAINANT)
