Moot court exercise

BKS PRAKASH (Querist) 03 July 2014 This query is : Resolved
MOOT - COURT PROBLEM -1

Prosecution case in nutshell is as follows:
1. Ms. Shalini aged about 20 Years, the complainant, was a nursing student and was living in a Government Women’s Nursing College Hostel at Hyderabad. On 30th June 2009 while the complainant came out of her room in the Hostel on the front lawn of the hostel, the main accused, Bhanwar , aged about 30 years, a night watchman in the hostel and Tribhuvan, aged about 18 years, a spoilt multimillionaire student, kidnapped her at about 11.00.P.M. and forcibly carried her in the night watchman’s room behind the hostel , a lonely place , where 2 students namely , Mohan, aged 22 years, son of a local M.L.A. and Sohan , aged 20 years , close relation of a Central Minister , were drinking liquor heavily. As the summer vacation was to commence from 01.07.2009, hardly 3-4 students were in the Hostel which has actual capacity of 100 inmates. The lady warden had left for her home and no other employee was there. The complainant’s mouth and body was tied with cloth and Bhanwar had a knife in his hands. She was given some intoxicant with drugs, forcibly put on the mattress and was raped one by one by Tribhuvan, Mohan, Sohan and Bhanwar . After gang rape, in a naked and unconscious condition, the complainant was thrown outside the backside of the boundary wall of the hostel at about 4.00 A.M.
2. At about 5.00 A.M, the complainant came to little senses and was noticed by certain passersby. She was carried to the nearest Police Station being Crime No. 966 of 2009, where FIR could be lodged with much difficulty and on intervention of Superintendent of Police. Case under Sections 363 and 376 ( 2 ) (g) was registered against the four accused . Wide publicity was given by the print and electronic media in local and national papers and on T.V. The Complainant was admitted in the Government Hospital and was discharged after two weeks. The Night watchman-Bhanwar and other three accused were traced out while sleeping and drunken stage in the Night watchman’s room.
2.1. A Panchanamah was prepared . Exhibit –A-1 contains the list of articles confiscated by the Investigation officer viz torn out Kurta , Payjama , Panty, hawai chappal , non - vegetarian food items, tumblers , liquor bottles , drugs , cigarettes, hukka with tobacco and Matchbox, other intoxicants , sharp knife weapon, Cash Rs.10,000/-+Rs.50,000/- etc . Four mobiles cells of the 4 accused were found and seized . On checking of call list it was found ( i) there had been call in between the 4 accused in the evening at about 7.00 P.M and (ii ) two missed calls were by Tribhuvan to the Complainant on 29.05.2009. Site map was prepared which is Exhibit A-2.
A Classic car Mercedes registered in the name of father of Tribhuvan and the driving license of Tribhuvan was found apart from one motor bike in the Campus. In the Car one bottle of foreign liquor was also found with bed sheets, carpet , cosmetics, cigars etc. The complainant was required to undergo medical examination within 12 hours. The Medical Jurist in the report stated that blood was seen in the vagina and hymen of the complainant was found to have been ruptured and damaged. The accused were also required to undergo ‘Sperm Detection Test’ and the report corroborated the claim of the complainant, Presence of semen and human spermatozoa on the bed sheets of the mattress were noticed. Exhibit A-3 are the photographs of the Night watchman’s room with its contents.
3. A case u/s . 376 ( 2) (g) read with sec.364 A of Indian Penal Code was registered against the 4 accused. After investigation, the three accused were arrested. Tribhuvan was absconding and was later arrested. After filing of the charge sheet, the case was submitted to the Court of Sessions. Tribhuvan and Sohan were released on bail by the High Court. The Complainant sought death sentence for Bhanwar and damages of Rs.20 lacs under Section 357 and 357 A of the Criminal Procedure Code with costs.
4 The Prosecutor ( PW-1) Stood to the test of cross examination. Shri Ramlal (PW-2) and Shri Shymlal (PW-3) who were passing through the road on the back side of the hostel found the complainant in nacked condition and stated about injury on the private parts, abrasions and bruises on the breasts and cheeks and oozing of the blood and that she was in a serious condition . Photographer (PW-4) stated as to photographs and his observations. Medical Jurist (PW-5) conformed his report and the gang rape mercilessly done. Shri Shyamala who had drawn Spot map (PW-6) was examined. They further stated that gang rape by the 4 accused had dehumanizing effect on the victim. The witnesses were cross examined and stood to the testimony.
5. (i) Tribhuvan accused claimed that he is a minor .He produced his horoscope , birth certificate and matriculation certificate wherein he was found as having completed 17 years and 10 months on the date of offence . As per Medical Certificate he was declared above 18 years . He confessed that with the assistance of Bhanvar on payment of rs.5,000/- to one of the student of the Hostel and he had carried that student to a five star hotel for the whole night .He also stated that he had been frequently visiting the Hostel with the permission of the Warden and that he spotted the Complainant in mini skirt ( western dress) with high heels , cosmetics and was allured of her charming personality .He asked Bhanwar to manage the complainant on payment of Rs.10,000/- for him and Rs.50,000/- for the Complainant . He smilingly stated that he had inter-course with the complainant gracefully; she was in proper senses and co-operative. She was misused by other accused .He was declared as minor.
(.ii) Mohan claimed that he was out of the town, came to his house at about 11.00 P.M. and had not gone to the room of Bhanvar. He denied the charge. However, the Motor bike is registered in his name . He failed to prove his denial.
(iii) Sohan corroborated the rape story but claimed that he was persuaded by Tribhuvan to have forcible inter - course for his pleasure. Tribhuvan was watching the action.
(iv) Bhanvar confessed guilty but stated that he had to – co –operate and plan as Tribhuvan gave him Rs.10,000/- and also persuaded for forcible rape. He had been arranging drink’s party earlier also .He admitted receipt of Rs.10,000/-for him and Rs.50,000/- for the Complainant .He told that he earlier gave to the complainant , but She categorically refused to succumb to his offer for Tribhuvan, a well built person with charming personality and lot of fortune.
6. The Sessions Judge. Nampally Court Hyderabad by judgment dated 30.12.2010 convicted the accused after holding that the prosecution has provided its case fully supported by independent witness and medical evidence on record apart from the Sperm Detection test stained clothes. Mattress with blood, drugs, intoxicants, cash etc. the Sessions Judge Court Considering the defense evidence convicted the accused as follows.
(i) Bhanwar, Night watchman to undergo rigorous imprisonment for life.
(ii) Mohan, student to undergo rigorous imprisonment for a period of 10 years:
(iii) Sohan, student to undergo simple imprisonment for a period of 7 years : and
(iv) Tribhuvan, having been proved a minor to be dealt with separately under the Juvenile Justice (Care and Protection of children) Act, 2000.
(v) Damages were awarded of Rs.10 lacs.
6.1 The Session’s Judge further observed that the physical scar may heal up, but the mental scar will always remain. When a women is ravished, what is inflicted is not merely physical injury but a deep sense of shame deathless shame .He also stated that the facts and given circumstances in each case, the nature of crime, the manner in which it was planed and committed ,the motive for commission of the crime, the conduct of the accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration and it will be a mockery of justice to permit these accused to escape the extreme penalty of law would be to render the justifying system of this country suspect. The common man will lose faith in courts. The nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime has been committed not only against the individual victim
But also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated ,the enormity of the crime warranting public abhorrence and it should be‘ respected to the society ’s cry for justice against the criminal ‘.If for an extremely heinous crime perpetrated in a very brutal manner , the most deterrent punishment will lose its relevance” Rape is not only a crime against the person of a women , but a crime against the entire society .It indelibly leaves a scar on the most cherished possession of a women i.e her dignity , honour , reputation and not the least her chastity .It destroys , as noted by this Court in Bodhisattva Gautam v. Subhra Chakraborty ( 1996 ) 1-SCC-490 ( AIR1996 SC 922)the entire psychology of a women and pushes her into deep emotional crisis .It is a crime against basic human rights , and is also violative of the victim’s most cherished of the fundamental rights , namely , the right to life contained in Article 21 of the Constitution .The Courts are , therefore , expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.
7 Aggrieved by the said judgment, the respondents accused as well as the complainant preferred appeal being Criminal Appeal No.58/2011 before the Hon’ble High Court of Judicature for Andhra Pradesh .The Hon’ble High Court by impugned judgment dated 20.5.2013 came to the conclusion that the Sessions Court was justified in coming to the conclusion that the four accused have committed the heinous act, offence of gang rape against the nursing student of the hostel , which would have lifelong effect on the body and mind of the complaint , However , taking a lenient view of the matter, on appreciation of defense and non-availability of any independent eye witnesses , reduced the sentence awarded by the Sessions Court to the following period
(i) Bhanwar to undergo rigorous imprisonment for 10years
(ii) Mohan to Undergo simple imprisonment for five years, and
(iii) Sohan to the period already undergone by the accused.
(iv) Damages were reduced to Rs.50, 000/-
The appeal for the accused were allowed in above terms and appeal of the complainant to enhance sentence and damages was dismissed, being bereft of any substance.
8. Being aggrieved by the aforesaid orders, the complainant as well as the accused .Bhanwar, Mohan and Sohan have filed appeal before he Hon’ble Supreme Court. The Hon’ble Supreme Court has issued notices confining to the issue regarding the sentence and damages. The Supreme Court also issued notice as to why the sentence awarded by the High Court to the three accused respondents be not restored to that of the sentence awarded by the sessions court and why the accused Bhanwar not to undergo life imprisonment for whole of the convict’s life (not for 20 years or 14 years)?
9. All the appeals have been consolidated and are fixed for final hearing with, appropriate directions to submit written memorials.

RELEVANT LAW

1. Sections 45, 363,375 and 376 of the Indian Penal Code1860.
2. The Juvenile Justice (Care and Protection of Children) Act 2000.
3. The Indian Evidence Act,
4. Section 357 and 357A of the Criminal Procedure Code.
Dear Sir,
I am expecting your valuable advise in this regards/ thanks Prakash bks

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