LATE ADV. K.B.

KAYASTHA XVTH STATE LEVELMOOT COURT COMPETITION

IN THE HONOURABLE
SUPREME COURT OF INDIA
SPECIAL LEAVE PETITION (cri) NO............/ OF 2015

[UNDER ARTICLE 136 OF CONSTITUTION OF INDIA]

IN THE MATTER OF SECTION 90, SECTION 376 AND SECTION 417

OF INDIAN PENAL CODE (IPC)

1. THE STATE OF MAHARASHTRA

2. MISS. SMITA RADHAKRISHNA KERKAR PETITIONER
Vs.
MANESH MADUSUDAN KOTIYAN RESPONDENT

UPON SUBMISSION TO THE HONBLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

Table of Contents.2
List of Abbreviation.3
Index of Authorities.4
Statement of Jurisdiction..6
Statement of Facts....7
Statement of Issues...8
Summary of Issues...9
Arguments Advanced
I.

Whether this Special Leave Petition is maintainable before the Honble Supreme
Court of India?..............................................................................................10

II.

Whether the consent was given voluntarily or not?......................................14

III.

Whether the respondent is punishable for rape under section 376 of Indian Penal
Code, 1860?...................................................................................................19

Prayer.....23

MEMORIAL ON BEHALF OF RESPONDENT

LIST OF ABBREVIATION

AIR.

ALL INDIA REPORTER

A.P

ANDHRAPRADESH

B.H.C

BOMBAY HIGH COURT

CRI

CRIMINAL

CRILJ

CRIMINAL LAW JOURNAL

COI

CONSTITUTION OF INDIA

IPC

INDIAN PENAL CODE

KAR.

KARNATAKA

MANU

MANUPATRA

ORS.

OTHERS

ORI.

ORISSA

R.I.

RIGOROUS IMPRISIONMENT

SC

SUPREME COURT

SCC

SUPREME COURT CASES

SLP

SPECIAL LEAVE PETITION

UP

UTTAR PRADESH

V.

VERSUS

MEMORIAL ON BEHALF OF RESPONDENT

INDEX OF AUTHORITIES

CASES:1. State Of Andhra Pradesh vs P. Anjaneyulu (1984) 2 SCC 445

2. State Of U.P vs Boota Singh & Others (1979) 1 SCC 316
3. State Of UP v Hari Ram and ors (1983) 4 SCC 453
4. Ramesh Chand v. State of UP (1985) 1 SCC 464
5. State Of U.P vs Anil Singh AIR 1988 SC 1988
6. R. vs. Olugboja [1981] 3 W.L.R. 585
7. Holman vs. The Queen [1970] W.A.R. 2
8. Uday singh v State of Karnataka MANU/KA/0279/1995
9. Jayanti Rani Panda vs. State of West Bengal 1984 CRILJ 1535
10. Krishna Pada Mahato vs. State of West Bengal 2005 (2) CHN 198
11. Dilip Mahto vs. State of Bihar 2003 (1) ALT CRI Q13
12. Surjit Ranjan v State 27 JAN 2011
13. Uday v State of Karnataka 19TH FEB 2003
14. Sri Kumaresh Chikkappa Bagodi Vs State of Karnatak ILR 2001 KAR 4964
15. Moran Chandra Paul v. State of Tripura (1996) 2 GLR 15, 3RD NOVEMBER,
2004
16. Bipul Medhi vs State Of Assam 2008 CRILJ 1099
17. Deelip Singh @ Dilip Kumar vs State Of Bihar 3RD NOVEMBER, 2004

BOOKS:1.
2.
3.
4.
5.

Commentary on IPC by Ratanlal & Dheerajlal

Constitution of India by V.N. Shukla
Constitution of India by P.M. Bakshi
Indian Evidence Act by Ratanlal & Dheerajlal.
Text book on IPC by K.D. Gaur

MEMORIAL ON BEHALF OF RESPONDENT

Links

1.
2.
3.
4.
5.
6.
7.
8.

manupatra.com
highcourt.nic.in
supremecourtofindia.nic.in
indiatoday.in
timesofindia.indiatimes.com
indiankanoon.org
advocatekhoj.com
indpaedia.com

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION

The Honble Supreme Court doesnt have jurisdiction under article 136 of Constitution of
India as it reads as follow:-

136. Special leave to appeal by the Supreme Court ---

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed forces.

The special Leave Petition can be filed when there is gross injustice or the High Court has
ignored the Substantial question of law. But there has been no gross injustice occurred to the
petitioner and hence the same can be dismissed.

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF FACTS

1. The appellant, Manesh and the respondent Smita worked at Virodhi Stationery Shop,
Mumbai. The respondent left the job. Then the appellant also quitted. They started
working at Balaji DTP Xerox Centre.
2. The appellant on one fine day proposed the respondent and she accepted his proposal.
3. On 5.11.09 the appellant informed Smita that it was his birthday. Smita went to meet
him at the bus stop.
4. Then they both went to Gorai Beach. They checked into a guest house in Gorai village
to cut the cake on the occasion of his birthday.
5. The appellant allegedly informed Smita that he wanted to marry her and on that
ground he had solicited sexual favors from Smita.
6. When she refused to oblige, he forced her and had forcible sexual intercourse with
her. They did not meet for 2-3 days.
7. The appellant went to Manglore for 1 month. She called him on his cell phone and
learnt from the appellants brother that he is married and has a son. However, the wife
and son did not reside with him.
8. The appellant met Smita accompanied by her mother at Boriwali and confirmed that
he is married and has a son and sought pardon from them.
9. On 8.3.2010 Smita realized that she is pregnant and informed the same to the
appellant. He promised her that he would obtain divorce after 3 months and then he
would marry her.
10. Smita realized that he was ignoring her and lodged an F.I.R. against him under section
376, 420 of IPC.

11. High Court has acquitted the appellant under section 376 of IPC and convicted him
under 417 and the respondent has filed the special leave petition under article 136 of
COI.

MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF ISSUES

ISSUE I
WHETHER THIS SPECIAL LEAVE PETITION IS
MAINTAINABLE BEFORE THIS HONBLE
SUPREME COURT OF INDIA OR NOT?

ISSUE II
WHETHER THE CONSENT WAS GIVEN
VOLUTARILY OR NOT?

ISSUE III
WHETHER THE RESPONDENT IS PUNISHABLE
FOR RAPE UNDER SECTION 376 OF
INDIAN PENAL CODE, 1860?

MEMORIAL ON BEHALF OF RESPONDENT

SUMMARY OF ISSUES

WHETHER THIS SPECIAL LEAVE PETITION IS MAITAINABLE BEFORE THE

HONBLE SUPREME COURT OF INDIA OR NOT?
It is most humbly submitted before this Honble Supreme Court of India that this special
leave petition filed by the petitioner is not maintainable as there is no gross injustice has
occurred to the petitioner. And also, High Court has not ignored any substantial question of
law at the time of delivering the judgment. Hence the same should be dismissed by the
Supreme Court of India.

WHETHER THE CONSENT WAS GIVEN VOLUTARILY OR NOT?

It is most humbly submitted before this Honble Supreme Court of India that the consent was
given voluntarily. There was no use of any force or fear to access the body of the petitioner.
Also, the consent was not under misconception of fact. The consent was said to be in
misconception if at all at the time of making the inception, the accused has the intention of
not fulfilling it. Here, it must be noted that the accused has never denied to marry the
petitioner. And the respondent had also not taken the efforts of filing F.I.R and did not tell
about the incident of the sexual intercourse, not even her mother. Hence, the consent was
given freely.

WHETHER THE RESPONDENT IS PUNISHABLE FOR RAPE UNDER SECTION

376 OF INDIAN PENAL CODE, 1860?
It is most humbly submitted before this Honble Supreme Court of India that the accused is
not punishable for rape under section 376 of IPC as he has not committed the offence of rape
only. The accused had not constituted sexual intercourse with the petitioner against her will,
or without her consent or by keeping her under any type of misconception. He didnt have
intention of deserting her. From the beginning he stayed firm on his decision and never
denied to marry the petitioner. Even he didnt have any problem with the paternity of the
child of the petitioner. It would be gross injustice if, the respondent will be punishable for
that offence which he never committed only.

MEMORIAL ON BEHALF OF RESPONDENT

ARGUMENTS ADVANCED
ISSUE I

WHETHER THIS SPECIAL LEAVE PETITION IS MAITAINABLE BEFORE THE

HONBLE SUPREME COURT OF INDIA OR NOT?

It is most humbly submitted before the Honble Supreme Court of India that the SLP filed by
the petitioner is not maintainable before this court. Article 136 of COI reads as follow:136. Special leave to appeal by the Supreme Court:(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

In decided cases, however, establish that the Supreme Court will grant Special leave in to
appeal in exceptional cases like:Where grave and substantial injustice has been done by disregards to the forms of legal
process, or violation of the principles of natural justice or otherwise.
It may be noted by this Learned Supreme Court that here in this case there is no grave
injustice and ignorance of substantial question of law. The decision given by the High Court
is totally based upon law without ignoring any substantial question of law.
Normally the Supreme Court does not interfere with an order of acquittal passed by the High
Court if two views of evidence are possible1.
In case of State Of Andhra Pradesh vs P. Anjaneyulu on 2 November, 19822, it was held
that:We do not ordinarily entertain appeals against orders of acquittal if two views of the
evidence are possible. On a perusal of the judgment of the trial court and the High Court we
are unable to say that the High Court has taken an unreasonable view of the evidence. The

1
2

para 5 of COI by VN Shukla, P.440

(1984) 2 SCC 445

MEMORIAL ON BEHALF OF RESPONDENT

10

special leave petition is therefore dismissed on merits and not because the State has desired
to withdraw the same.

In this case also, High Court has examined all the evidence very carefully and then acquitted
the said accused.
However, the order may be set aside on the basis of following grounds:-

a) if the High Court has misread the evidence and has reversed the judgment of the
sessions judge without displacing important conclusion arrived at by the session
judge or ,
In case of State Of U.P vs Boota Singh & Others on 22 August, 19783, it was observed
that:Normally, this Court does not interfere with an order of acquittal passed by a High Court
but in this case we find that the High Court has misread the evidence and has reversed the
judgment of the Sessions Judge without displacing important conclusions arrived at by the
Sessions Judge. The High Court has overlooked important circumstances which fully proved
the case. Even regarding the confession it has not made a correct approach which is first to
take the confession and then to find out how much of it is corroborated by other independent
evidence.

Here in this case, at the time of reversing the judgment of sessions judge , High court has not
misread any of the evidence. After verifying all the witnesses and evidence, the judgment was
delivered by this court. And hence, the petition for special leave can be set aside.

b) if the decision of the High Court is based on conjectures and not sound
reasoning or,
In case of State Of UP v Hari Ram and ors4. It was contended as following:The High Court has committed serious errors of law in appreciating and marshalling the
evidence and in basing its conclusions more on speculation that on the evidence led before
the trial court. On a careful consideration and detailed review of the evidence and
circumstances of the case we are fully satisfied that there is no good reason to disbelieve

3
4

(1979) 1 SCC 316

(1983) 4 SCC 453

MEMORIAL ON BEHALF OF RESPONDENT

11

the testimony of PWs. 1, 2 and 3 particularly when the evidence of PWs. 1 and 3 was fully
corroborated by PW 2 who was doubtless an independent witness and whose evidence did
not suffer from any manifest defect. We, therefore, fully believe the testimony of the eyewitnesses and hold that from the evidence on record the prosecution case has been proved
beyond reasonable doubt and the order of acquittal passed by the High Court was wrong
on a point of law which is sufficient to warrant our interference. In these circumstances, it
is impossible to sustain the judgment of the High Court. We, therefore, allow the appeal,
set aside the judgment of the High Court.

It may be noted by this learned Court that in this case the judgment is not given under any
speculation or conjectures as it has verified all the facts. The Prosecution itself doesnt
have sufficient evidence to prove the conviction of the accused. The decision of High
Court is fully based on sound reasoning.

c) If the evidence does not justify conviction

In case of Ramesh Chand v. State of UP5 it was contended by the Honble Supreme
Court that:Ordinarily this Court does not enter into re-appreciation of evidence but where evidence
is placed and the conviction appears to the Court to be not justified in law, nothing stands
in the way in directing reversal of conviction. We allow the appeal, set aside the conviction
of the appellant and direct his acquittal.

In the present case also, the evidences presented by the appellant (Smita) dont justify the
conviction of the respondent (manesh) and hence the learned Supreme Court may set aside
the SLP filed by the petitioner.
d) If the acquittal is perverse in the sense that no reasonable person would have
come to that conclusion, or if the acquittal is manifestly illegal or grossly
unjust.

In case of State Of U.P vs Anil Singh6:The scope of appeals under Article 136 of the Constitution is undisputedly very limited. This
Court does not exercise its overriding powers under Article 136 to review the evidence. Even

5
6

(1985) 1 SCC 464

AIR 1988 SC 1988

MEMORIAL ON BEHALF OF RESPONDENT

12

if two views are reasonably possible, one indicating conviction and other acquittal, this
Court will not interfere with the order of acquittal. But the Court will not hesitate to interfere
if the acquittal is perverse in the sense that no reasonable person would have come to that
conclusion, or if the acquittal is manifestly illegal or grossly unjust.

In this case the acquittal by High Court is not perverse and hence the petition must be
dismissed. The decision delivered by the high court is based on evidence and witnesses.
There is no such direct and even circumstantial evidence by which the she can prove that
there was a gross injustice or that the High Court has ignored the substantial question of law.
The decision is just and equitable. There is no need to rise a question over the said decision of
the High Court. And hence the petition, must be dismissed.

MEMORIAL ON BEHALF OF RESPONDENT

13

ISSUE II

WHETHER THE CONSENT WAS GIVEN VOLUTARILY OR NOT?

It is most humbly submitted before this Honble Supreme court of India that there was the
presence of free consent and was given voluntarily. consent includes agreement, community
of feeling and opinion, unanimity, to agree not to resist or prevent, to acquiesce in, agree to
permit, to be willing to undertake. For the genuineness of the consent the parties must be ad
idem, ie, agree on same thing in the same sense.

According to Strouds Judicial Dictionary, consent is an act of reason weighing as in a

balance the good and evil on each side.
And the same was observed in the case of R. vs. Olugboja : [1981] 3 W.L.R. 5857
"consent in rape covers states of mind ranging widely from actual desire to reluctant
acquiescence, and the issue of consent should not be left to the jury without some further
direction".

However. in Indian Penal Code, 1860 the word consent is not defined in a positive way, but
what cannot be called as a consent is explained under section 90 of this code which reads as
follow: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.

[1981] 3 W.L.R. 585

MEMORIAL ON BEHALF OF RESPONDENT

14

In case of Holman vs. The Queen : [1970] W.A.R. 28 it was held that:-

"There does not necessarily have to be complete willingness to constitute consent. A

woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously
permits it, there is consent' ".

According to the above provision, it can be inferred that

(a) consent given under a fear or injury, or
(b) under a misconception of fact is not a consent at all.

In the present case it may be noted that the consent of prosecutrix has not been obtained
under any fear or injury or even under misconception.

A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact.
The question of misconception of fact will arise only if the act consented to, is believed by
the person consenting to be something else, and on that pretext sexual intercourse is
committed.
There is nothing like this in the present case as the appellant has never denied marrying the
prosecutrix. From the very day he is firmed on his decision and he has not even cheated her.

In case of Uday singh v State of Karnataka9 it was observed by the N. SANTOSH

HEGDE & B.P. SINGH:In our view, we do not consider it necessary to consider the question as to whether in a case
of rape the misconception of fact must be confined to the circumstances falling under Section
375 Fourthly and Fifthly, or whether consent given under misconception of fact contemplated
by Section 90 has a wider application so as to include circumstances not enumerated in
Section 375 IPC. The impugned judgment and order convicting and sentencing the appellant
for the offence punishable under Section 376 IPC is set aside, and the appellant stands
acquitted of the charge.

8
9

[1970] W.A.R. 2
MANU/KA/0279/1995

MEMORIAL ON BEHALF OF RESPONDENT

15

Further, if we focus on the evidence on record there is nothing as such which can prove this
fact that the prosecutrix had not given her consent. In the instant case prosecutrix is a grown
up working girl. she is enough mature to take the decisions about herself. She had sufficient
intelligence to understand the significance and moral quality of the act she was consenting to.
That is why she kept it a secret as long as she could even from her mother.
Hence, this is perfectly clear from these facts that the prosecutrix was a consented party.

In case of Jayanti Rani Panda vs. State of West Bengal10, it was held by the Calcutta High
Court that :"The failure to keep the promise at a future uncertain date due to reasons not very clear on
the evidence does not always amount to a misconception of fact at the inception of the act
itself. In order to come within the meaning of misconception of fact, the fact must have an
immediate relevance. The matter would have been different if the consent was obtained by
creating a belief that they were already married. In such a case the consent could be said to
result from a misconception of, fact. But here the fact alleged is a promise to marry we do not
know when. If a full grown girl consents to the act of sexual intercourse on a promise of
marriage and continues to indulge in such activity until she becomes pregnant it is an act of
promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC
cannot be called in aid in such a case to pardon the act of the girl and fasten criminal
liability on the other, unless the Court' can be assured that from the very inception the
accused never really intended to marry her."

Here in this present case, the appellant had never created a belief that he has been married the
respondent and there is no question of misconception. He assured her that he will marry her
and never changed his statement.

In Krishna Pada Mahato vs. State of West Bengal11, it was held that :"The evidence and circumstances also supports that the victim had full consent in sexual
intercourse with the appellant as from January, 1991 to 4th August, 1991. She had regular
sexual intercourse with the appellant but did not report anything to her parents. She even did
not report to her parents about her pregnancy during initial stages. On 4th August, 1991
when she last met with the appellant on that date also she enjoyed sexual intercourse with the
appellant as it transpired from her evidence. She reported it to her mother only when the
appellant refused to marry her. I am of opinion that in the instant case there was no
misconception of fact and the victim being a full grown lady voluntarily consented to having
sexual intercourse with the appellant. Her evidence also reveals that the appellant once
10
11

1984 CRILJ 1535

2005 (2) CHN 198

MEMORIAL ON BEHALF OF RESPONDENT

16

disclosed to marry her but he could not marry her as his father objected to the marriage. It
establishes that there was no misconception of fact in the instant case and the victim was a
consenting party and her conduct was nothing but an act of promiscuity on her part."

In this case also the victim had not revealed this fact that she had sexual intercourse with the
accused and this clearly shows that her consent was free and it was of course not the offence
of rape but was promiscuity on her part.

In Dilip Mahto vs. State of Bihar12, Jharkhand High Court contended the following :"It is equally crystal clear from the testimony of P.W. 1, Meena Kumari that it is a case where
on her own showing she was willing and full consenting party to that of sexual intercourse
with the appellant. It also appears that P.W. 1, Meena Kumari continued without any protest,
demur or objection with the affair of having sexual intercourse with the appellant for a
period of three months in his house prior to the institution of the case. In this view of the
matter the allegation, P.W. 1 Meena Kumari was subjected to sexual intercourse with the
appellant on the assumption based on an assurance or promise or giving out an
understanding that the appellant shall marry her, cannot amount to the lack of consent for
sexual intercourse as far as P.W. 1, Meena Kumari is concerned. In view of the finding above
that P.W. 1, Meena Kumari is major at the relevant time and if she gives consent even on any
of the aforesaid assumptions and, thus, she has sexual intercourse with the appellant she will
be under all circumstances and in all respects considered to be a consenting party. This
consensual sexual intercourse between P.W. 1 Meena Kumari and the appellant continued
for three months until the day of the reckoning when P.W. 3, the informant filed this case."

Here in the instant case also, the prosecutrix was subjected to sexual intercourse on with the
appellant on the assumption based on an assurance or promise or giving out an understanding
that the appellant shall marry her. This cannot amount to the lack of free consent.

In case of Surjit Ranjan v State13, where the facts of the case are more or less same, it was
held that : The prosecutrix was a grown up educated woman aged about 22 years living in a
metropolis like Delhi and was expected to know the consequences of indulging in sexual
activity with a man. She continued to have sex with the appellant for more than three months.
Even after she became pregnant, she did not immediately disclose this fact to anyone
including her mother.
12
13

2003 (1) ALT CRI Q13

27 JAN 2011

MEMORIAL ON BEHALF OF RESPONDENT

17

There was no reason for her not to disclose to her mother that appellant had promised her to
marry. All this shows that she was in love with the appellant and was a consenting party.

And hence was the judgment: - I am of the view that Trial Court was not right in convicting
the appellant under Section 376 IPC. Accordingly, conviction of appellant under Section 376
IPC and the sentence awarded to him by the Trial Court is set aside.

As in this case also, the respondent accompanied with the appellant without informing
anybody and checked into a guest house. And she did not even resisted him forcefully and
after this incident she did not even file the F.I.R.

It must be noted by this Honble Supreme Court that all these incident are clearly clarifying
that the consent was given voluntarily.

MEMORIAL ON BEHALF OF RESPONDENT

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ISSUE III

WHETHER THE RESPONDENT IS PUNISHABLE FOR RAPE UNDER SECTION

376 OF INDIAN PENAL CODE, 1860?

It is most humbly submitted before this Honble Supreme Court of India that the respondent
is not at all punishable for rape under section 376 of IPC, 1860 as he has not committed the
offence of rape. The word Rape is defined under section 376 which reads as follow: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.
(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.

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19

For bringing an offence within the definition of rape the circumstances should fall under any
of these descriptions as mentioned in Section 375 of the Indian Penal Code.
Here it may be noted that the given criteria is not getting fulfilled. In the present case the
petitioner has not even enquired about his background when the respondent has proposed her
as she was in deeply with love with her.

In the famous case of Uday v State of Karnataka14 , the Honble Justice N. Santosh
Hegde & B.P. Singh contended that:It usually happens when two young persons are madly in love and promise loses all
significance, particularly when they are overcome with emotions and passion in weak
moments; succumb to the temptation of having sexual relationship. The girl willingly
consented to having sexual intercourse with the appellant with whom she was deeply in love,
not because he promised to marry her, but because she also desired it. And the appellant for
the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted
of the charge.

According to the facts she voluntarily accompanied with the accused for celebrating his
birthday without telling anyone about it.

The respondent was a well-educated working woman, aged 28 years. She would be well
mature to understand the consequences of her deeds. And it cannot be said that the
respondent had established physical relations with her without her consent.

Section 375 of IPC is read with section 90 of the same which doesnt define the consent but is
specified with the provisions what cannot be called as consent. When the said accused
checked into a guest house then the petitioner didnt deny and this fact also cannot be ignored
that on the promise of marriage she did not assailed the accused and constituted sexual
intercourse with the accused.

14

TH

19 FEB 2003

MEMORIAL ON BEHALF OF RESPONDENT

20

In case of Sri Kumaresh Chikkappa Bagodi Vs State of Karnatak15, the Karnataka High
Court held that:

I am of the view, that the consent in the present nature, based on the promise of marriage
does not bring the act of sexual intercourse of the accused with the victim, under the
definition of rape under Section 375 Indian Penal Code. Again if we refer to Section 90
Indian Penal Code similar provisions akin to clauses thirdly and fourthly, fifthly are found. It
has been interpreted, that if the case falls under any of the clauses, it is not consent at all.
Conversely if the consent does not fall under any of the categories, either under Section 90 or
clauses thirdly, fourthly and fifthly in Section 375 Indian Penal Code, I am of the view that if
the victim is grown up and an adult, and her consent is not because of any reasons as stated
in the provisions, but based only on an alleged promise, it cannot be held, that the accused
Committed the offence of rape.

The petitioner has also confessed this fact that she is in love with the accused and even
accused has also never denied marrying her. There is no matter of rape in this case as both the
parties love each other and the petitioner is still ready to marry the respondent.

In Moran Chandra Paul v. State of Tripura16 (1996) 2 GLR 15, GAUHATI (AGARTALA
BENCH) held that:On consideration of the evidence on record, cohabitation was with the consent of the
prosecutrix and as such, no offence of rape is made out.

Moreover, the evidence as a whole doesnt indicate that there was resistance by the
prosecutrix and there was no voluntary participation by her for the sexual act. Submission of
the body under the fear of terror cannot be construed as a consented sexual act. But here
submission was not under any fear but was voluntarily.

Consent for the purpose of Section 375 requires voluntary participation not only after the
exercise of intelligence based on the knowledge of the significance and moral quality of the
act but after having fully exercised the choice between resistance and assent. She was well
aware of her act and then also she did not resist the accused forcefully. Whether there was
consent or not, is to be ascertained only on a careful study of all relevant circumstances.

15

ILR 2001 KAR 4964

16

(1996) 2 GLR 15
MEMORIAL ON BEHALF OF RESPONDENT

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And all the relevant circumstances are ascertaining the very fact that there is no offence of
rape committed and hence the accused must not get punishment under section 376 of IPC.

The same has been held in the case of Bipul Medhi vs State Of Assam17 :In the light of what has been indicated above, it becomes clear that the submission of the
body by a woman under fear cannot be construed as consented sexual act for the purpose of
Section 375, IPC for, Section 375, IPC requires voluntary participation by the victim not only
after the exercise of intelligence based on the knowledge of the significance and moral
quality of the act, but after having fully exercised the choice between resistance and assent.
Whether consent existed or not has to be ascertained on the basis of the facts of a given
case.

And in this case, on the basis of the facts only it has been ascertained that there was no rape
under section 375 of IPC as the consent was given freely.

In case of Deelip Singh @ Dilip Kumar vs State Of Bihar18 it was held by the SCI that:We have no doubt that the accused did hold out the promise to marry her and that was the
predominant reason for the victim girl to agree to the sexual intimacy with him. PW12 was
also too keen to marry him as she said so specifically. But we find no evidence which gives
rise to an inference beyond reasonable doubt that the accused had no intention to marry her
at all from the inception and that the promise he made was false to his knowledge. No
circumstances emerging from the prosecution evidence establish this fact. On the other hand,
the statement of PW-12 that 'later on', the accused became ready to marry her but his father
and others took him away from the village would indicate that the accused might have been
prompted by a genuine intention to marry which did not materialize on account of the
pressure exerted by his family elders. It seems to be a case of breach of promise to marry
rather than a case of false promise to marry. In the result, the conviction and sentence is set
aside.

In the instant case, the accused has never denied only to marry the petitioner. If there was
suspicion in the mind of accused that he has committed offence under section 375 then why
he would have been come back to the petitioner and pardoned from her and even her mother?
Accused had never the intention of deserting the petitioner. Even he doesnt have any
problem to the paternity of that child.

17
18

2008 CRILJ 1099

RD
3 NOVEMBER, 2004

MEMORIAL ON BEHALF OF RESPONDENT

22

Apart from this, the prosecution has not sufficient evidence available to show that the rape
has been committed on her.

From all the above facts and circumstances, it is crystal clear that the said accused
(respondent) must not be punishable under section 376 of IPC, 1860.

MEMORIAL ON BEHALF OF RESPONDENT

23

PRAYER

In the light of arguments advanced and authorities cited, the Respondent humbly submits
that the Honble Court may be pleased to adjudge and declare that:
(1) The special leave petition should be dismissed,
(2) Respondent should no bet punishable under section 376 of IPC
(3) The decision given by the High Court should be upheld.
AND / OR

Any other just and equitable order as it deems fit in the interest of equity,
justice and good conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

MEMORIAL ON BEHALF OF RESPONDENT

24

MEMORIAL ON BEHALF OF RESPONDENT

25