TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………….
STATEMENT OF FACTS ……………………………………....………...
STATEMENT OF ISSUES………………………………………………...

1. Whether the appeal against conviction is maintainable?

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?
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?

SUMMARY OF PLEADINGS……………………………………….…...
ARGUMENTS ADVANCED……………………………………….…….
PRAYER…………………………………………………………………..

MEMORANDUM FOR THE RESPONDENT

 INDEX OF AUTHORITIES

1. STATUTES REFERRED

SR.NO STATUTES REFERRED

1. Section 374(2) of the Criminal Procedure Code, 1973

2. U/S 376(A), 397, 302, 404, 120(B) of the Indian Penal Code
3. Section 376D of the Indian Penal Code
4. Section 34 of the Indian Penal Code
5. Section 120A of the Indian Penal Code
6. Section 302 of the Indian Penal Code

2. TABLE OF CASES
NAMES OF THE CASES REFERRED PG NO.

Shimbhu and Anr. vs State of Haryana (2014) 13 SCC 318

R. Venkatakrishnan vs Central Bureau Of Investigation (CBI)
Parveen v. State of Haryana (2021) SC
The State of Maharashtra v. Vijay Mohan Jadhav and others (Shakti
Mills Rape Case)
Chhotu v. State of Maharashtra (1998)
Viswanathan v. State Rep. By Inspector of Police
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1
Mohan Lal & Anr Vs. State of Punjab (2013) 12 SCC 519
Nirbhaya Gang Rape Case

MEMORANDUM FOR THE RESPONDENT

 3. REFERENCE
SR.NO NAMES OF BOOKS
1. K.D. Gaur, A Textbook on the Indian Penal Code, 4' Edition, 2012, Universal
Law Publishing Co. Pvt. Ltd.

2. Ratanlal & Dhirajlal, Law of Crimes, Vol. 2, 25'" Edition, 2004, Bharat Law
House, New Delhi.
3. Glanville Williams, Texibook of Criminal Law, 2nd Edition, Universal Law
Publishing Co. Pvt. Ltd., 1999.
4. K.D. Gaur, Criminal Law: Cases and materials, 6' Edition, 2009, Lexis Nexis
Butterworth Wadhwa, Nagpur.
5. Sarkar SC, Code of Criminal Procedure, Vol. 2, 10' Edition, 2012, Lexis
Nexis Butterworth Wadhwa, Nagpur.
6. C.K Thakkar 'Takwani', Criminal Procedure, 3" Edition, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2011.
7. R.V. Kelkar's, Criminal Procedure, 5* Edition, Eastern Book Company,
Lucknow, 2008
8. Ratanlal and Dhirajlal, The Law of Evidence, 24' Edition, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2011.

4. IMPORTANT DEFINITIONS

1. “Appellant” for the purpose of this Memorandum shall stand for

‘SACHIN MISHRA AND ORS’
2. “Respondent” for the purpose of this Memorandum shall stand for
‘STATE OF MAHARASHTRA’.

4. DYNAMIC LINKS
1. www.manupatra.com
2. www.indiankanoon.com

MEMORANDUM FOR THE RESPONDENT

 5. LIST OF ABBREVIATIONS
SR.NO ABBREVIATIONS FULL FORMS
.
1. Hon’ble. Honorable
2. CJM Chief Judicial Magistrate

3. Rigorous Imprisonment A type of imprisonment involving hard labor

4. FIR First Information Report (a document filed to

report a crime to the police)
5. CRPC Criminal Procedure Code (a legal statute that
governs criminal proceedings in India)
6. IPC Indian Penal Code (a legal statute that defines
criminal offenses and their punishments in India)
7. B.P.O. Business Process Outsourcing (a business
practice of contracting non-primary business
activities to other companies)
8. U/S U/S: Under Section (referring to a specific
section of a legal statute)
9. SC SC: Supreme Court (the highest court in India)

10. SCC SCC: Supreme Court Cases (legal reference,

often used to cite specific cases)
11. I.P.C. I.P.C.: Indian Penal Code (a legal statute that
defines criminal offenses and their punishments
in India)
12. M.L.J. M.L.J.: Madras Law Journal (a legal reference)

13. Bom. Bom.: Bombay (referring to the Bombay High

Court)
14. A.I.R. A.I.R.: All India Reporter (a legal reference)

MEMORANDUM FOR THE RESPONDENT

 STATEMENT OF JURISDICTION

THE RESPONDENT HAS FILED AN APPEAL TO THE HON’BLE HIGH COURT OF

BOMBAY TO REVIEW THE JUDGEMENT PASSED BY THE TRAIL COURT OF
PUNE. THE HON’BLE HIGH COURT HAS THE JURISDICTION TO HEAR THE
MATTER UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE, 1973.
SEC. 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.

MEMORANDUM FOR THE RESPONDENT

 STATEMENT OF FACTS

1. The respondent, Ms. Nalini aged 28 at the time of the incident, was an employed
Software Engineer, engaged with a BPO Company situated in Pune, Maharashtra. Her
daily commute involved using company transport, public transport, or auto rickshaws
to travel to her workplace and back.

2. On the evening of 07/10/2019, (7 October)the respondent’s extended working hours

necessitated her consideration of alternate transportation options, as she missed the
usual company transport she relied upon.

3. At a juncture of vulnerability near Reliance Mall on Nagar Road, the respondent

accepted a lift from Mr. Sachin Mishra, the accused no. 1, who drove a cab. The cab
also housed accused no. 2, Mr. Vikram Jadhav (Security Guard), and accused no. 3,
Mr. Aniket Salwi. As she was the only woman in the cab, she placed her trust in these
individuals.

4. Based on assurances that she would be safely conveyed to her Katraj residence, the
respondent placed trust in the accused, unsuspecting of the malevolent designs that
lay ahead.

5. Contrary to Nalini’s expectations, the accused did not take her home. Instead, they
abducted her and subjected her to repeated instances of gang rape. The prolonged
nature of her ordeal evidenced their complete disregard for her well-being and safety.
the accused, operating collectively, orchestrated a sequence of criminal actions,
encompassing abduction, multiple counts of gang rape, and culminating in the tragic
murder of the respondent.

6. The respondent underwent a harrowing experience, as the accused subjected her to

brutal and degrading acts, leaving her vulnerable and traumatized.

7. Over a course of time, the accused traversed various locations, including Hadapsar,
Magarpatta, Manjari Phata, Abalwadi, Shankar Parvati Mangal Karyalaya, Dargah at
Chandan Nagar, Vadu Fata, and Zarevedi Fata.

8. The prosecution’s evidence suggests that the accused brutally murdered Nalini to hide
their crimes. They strangled her with a dupatta and crushed her face and head with
heavy stones to eliminate her identity and destroy evidence.

9. Subsequent to persistent efforts by the respondent’s parents, an investigation was

initiated, resulting in the apprehension of all accused on 14/10/2019.

10. The trial proceeded against the accused in the Trial Court, Pune. The trio of accused
was pronounced guilty for the gang rape and murder of Nalini. They were sentenced

MEMORANDUM FOR THE RESPONDENT

 to death under U/S 376 (A), 397, 302, 404, 120(B) of the IPC on July 20, 2021. An
accomplice, T. Ramalinga, received a 7-year imprisonment sentence

11. All three accused lodged an appeal in the Bombay High Court challenging the Trial
Court’s verdict. The issues raised in the appeal encompass the maintainability of the
appeal, the existence of conspiracy, and the establishment of common intention

MEMORANDUM FOR THE RESPONDENT

 STATEMENT OF ISSUES

1. Whether the appeal against conviction is maintainable?

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?
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?

MEMORANDUM FOR THE RESPONDENT

 SUMMARY OF ARGUMENT

1. Whether the appeal against conviction is maintainable?

The appeal is not maintainable before the Hon’ble High Court of Bombay as the decision of
the Trail Courts is apt and justified. The punishment befits the act committed by the three
accuse
The respondent argues that the appeal against conviction is not maintainable since the Trial
Court’s judgment was well-founded, based on substantial evidence, and followed due
process. The respondents contend that the conviction was reached after careful consideration
of the evidence and legal principles, and thus the appeal should not be entertained without
substantial grounds.
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 respondent asserts that the accused did conspire to commit the crimes in question. The
respondent presents evidence demonstrating that the accused were seen together, traveled to
various locations, and were involved in a series of criminal acts. The respondent argues that
the sequence of events indicates a premeditated plan, showing the accused’s common
intention to abduct, rape, and murder the victim.
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?
The respondent contends that the prosecution has successfully established the common
intention of the accused by providing ample evidence of their coordinated actions. The
respondent presents testimonies, forensic evidence, and timelines that suggest a synchronized
effort to commit the crimes. The brutal nature of the acts and the accused’s actions to conceal
the evidence further support the argument of a shared intention.

MEMORANDUM FOR THE RESPONDENT

 ARGUMENTS ADVANCED

1. Whether the appeal against conviction is maintainable?

The appeal against conviction lacks merit and is not maintainable. . THAT THE APPEAL IS NOT THE
MAINTAINABLE. The appeal before the Hon’ble High Court of Bombay should not be allowed as the
facts of the case are clear. The accused are guilty of gang rape and murder of the victim. The Trail
Court Pune has awarded them death penalty as the act of accused falls under the “rarest of rare
cases”. The three accused betrayed the faith of Nalini and raped her while moving the cab across the
city. Later on, they also allowed Ramalingam to join them who further continued to rape Navita.
Their inhuman acts did not stop at rape, they murdered the victim by strangulation and then
destroyed her face to destroy evidence. The three accused have been given reasonable opportunity
to prove themselves innocent but their heinous act prompted the Trial Court Judge to give them
death penalty.
The appeal against conviction is not maintainable as the trial court’s decision was based on a
thorough evaluation of the evidence and legal provisions, and there is no legal basis for challenging
the conviction.
Exception to Section 374CrPC
The exceptions to Section 374 of the Criminal Procedure Code are found in Sections 375 and 376 of
the CrPC as given below:
1. There is no right to appeal a conviction where the defendant has made a guilty plea and been
found guilty on the basis of that plea.

 Exhaustion of Remedies

The accused had a fair trial in the lower court, and all legal remedies were availed during the trial
process. Thus, pursuing an appeal after receiving due process undermines the principle of finality in
legal proceedings.

 Absence of Legal Error

The trial court meticulously evaluated the evidence, applied the relevant legal principles, and arrived
at a well-reasoned decision. There is no indication of any significant legal error that justifies
challenging the conviction

 Weight of Evidence

The trial court’s verdict was based on substantial evidence presented during the trial. Appellate
courts are generally cautious in re-evaluating factual determinations, especially when they are
supported by credible evidence.

 No Violation of Procedural Fairness

The trial was conducted in accordance with established legal procedures, ensuring a fair and
transparent process for the accused. The due process was followed, and the accused had an
opportunity to present their case.

MEMORANDUM FOR THE RESPONDENT

 Upholding Deterrence

Upholding the conviction through the appellate process reinforces the deterrence factor of the legal
system, serving as a warning to potential wrongdoers and maintaining public confidence in the
justice system.

Shimbhu and Anr. vs State of Haryana (2014)13SCC318: In this case, the victim, in this case, was
gang-raped by the accused. The additional session judge sentenced the accused to ten years of
rigorous imprisonment along with a fine. The High court also upheld this decision. The accused filed
an appeal claiming that he should be awarded lesser punishment as there has been a compromise
between the parties. The court dismissed these contentions on the grounds that gang rape is a non-
compoundable offence and cannot be considered a leading factor in reducing the punishment, as
there may be a possibility that the victim had been pressurized for the compromise.

Section 302 deals with punishment for murder, whereas Section 304 deals with punishment for
culpable homicide not amounting to murder. Section 302 of the IPC states that whoever commits
murder shall be punished with death or imprisonment for life, along with a fine.

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?

Yes 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 Conspiracy means a combination of two or more persons for unlawful
purposes. It is an agreement between two or more persons to commit an illegal act. Criminal
conspiracy is a substantive offence under the Indian Penal Code, 1860(I.P.C.).
Section 120A of the I.P.C. defines criminal conspiracy as an agreement of two or more
persons to do or cause to be done:
1. An illegal act, or;
2. An act that is not illegal by illegal means.
Section 43 of the I.P.C. defines the term illegal' as everything that is an offence or is
prohibited by law or furnishes ground for a civil action.

R. Venkatakrishnan vs Central Bureau Of Investigation, the supreme court laid down the
essential ingredients of criminal conspiracy, which are the following
1. An agreement (between two or more persons)
2. The agreement must relate to doing or causing to be done either:

MEMORANDUM FOR THE RESPONDENT

* An illegal act, or
* An act that is not illegal in itself but is done by illegal means.

The agreement maybe express or implied, or in the part express and partly implied.
* As soon as the agreement is made, the conspiracy arises and the offence is committed and
the offence continues to be committed so long as the combination persists, that is until the
conspirational agreement is terminated.
* To prove a criminal conspiracy which is punishable under section 120B, there must be
direct or circumstantial evidence to show that there was an agreement between two or more
persons to commit an offence.

Punishment of criminal conspiracy

Section 120B of I.P.C. provides for punishment of criminal conspiracy-
1. Where the criminal conspiracy is to commit a serious offence: In cases where the
conspiracy is to commit an offence-
2. Punishable with death,
3. Imprisonment for life or
4. Rigorous imprisonment for a term of two years or upwards

Parveen v. State of Haryana (2021) SC

The brief facts of the case are: Four accused were being escorted by the police from the
Central Jail, Jaipur by train to be produced in the Court of CJM, Bhiwani. On reaching the
Railway Station Nangal Pathani, four young boys entered their compartment, attacked the
police party and tried to rescue the accused. The accused, who were in custody also tried to
escape and an attempt was also made to snatch the official carbine. It was alleged that one of
the accused fired upon the Head Constable, who got injured and later succumbed to his
injuries. One accused was apprehended and the other three fled. The accused were charged
under offences Sections 224, 225, 332, 353, 392, 307, 302, 120-B of the IPC and for certain
offences under the Arms Act. The accused were held guilty by the Sessions Court and on
appeal, the High Court of Punjab and Haryana confirmed their conviction. The respondent
Parveen @ Sonu filed an appeal in the Supreme Court.
The Hon’ble Supreme Court held that it is not safe to hold a person guilty for offences under
Section 120B I.P.C. in absence of any evidence to show a meeting of minds between the
conspirators for the intended object of committing an illegal act. The Court ordered the
acquittal of the respondent and held that it is not safe to maintain the conviction of the

MEMORANDUM FOR THE RESPONDENT

accused on the alleged confessional statements of the co-accused in absence of any other
corroborative evidence.

The State of Maharashtra v. Vijay Mohan Jadhav and others(Shakti Mills Rape Case)
In this case, a photojournalist who was a 22-year-old female was brutally gang-raped by a
group consisting of 5 male members which included a minor. She was raped while she was
taking photographs of a worn-out mill in Mumbai called Shakti Mills. The Court pronounced
the judgement by awarding death penalty to three accused of rape who were adults and repeat
offenders. Further the minor of the gang were convicted under the Juvenile Justice Board for
a sentence of 3 years.
This case was termed as the ‘rarest of rare’ as for the first-time capital punishment was
awarded for committing of such heinous offence like rape.

The accused were charged under various sections of Indian Penal Code (IPC), including
376(d) for gang rape, 377 for unnatural offence, 120(b) for criminal conspiracy, sections 342
and 343 for wrongful restraint, section 506(2) for criminal intimidation and 34 for common
intention and 201 for destruction of evidence.

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?
Yes
Section 376D of IPC deals with gang rape. It states that “When a woman is raped by one or
more persons which constituting a group or acting in furtherance of a common intention, each
of those persons shall be deemed to have committed the rape and shall be sentenced with
rigorous imprisonment for a term which must not be less than 20 years, but which may
extend to life which shall mean imprisonment for the remainder of the natural life of the
person, and with fine. Such a fine must be just and reasonable in order to meet the victim’s
medical expenses and rehabilitation further, provided that any fine imposed under this section
shall be paid to the victim.
This provision for gang rape recognizes that this is not necessary for each member of the
group to actually commit the crime of rape to have a high degree of culpability. The law
punishes any activity which is done in furtherance of the common intention of the group as if
it was the offence of rape itself. This means that even those persons who stand guard at doors
cannot get away with a lesser punishment by claiming that they did not actually commit the
sexual assault.

MEMORANDUM FOR THE RESPONDENT

Common Intention
Section 34 of the IPC states that when several people commit a criminal act in furtherance of
a common intention, each of them is liable for the act in the same way as if he did it alone.
Therefore, common intention refers to the shared intention of two or more persons to commit
a criminal act.
Common intention, unlike common object, does not require the presence of an unlawful
assembly. It can exist between any two or more people who have a common desire to commit
a crime, whether or not they have gathered together. The common intention can be formed at
any point during the commission of the offence and can be inferred from the accused’s
behaviour.
Chhotu v. State of Maharashtra, 1998, the complainant party was attacked by the accused,
resulting in one person’s death. According to the witness, three people were abusing the dead,
while the fourth was merely standing there with a knife in his hand. It was held that only
three of the four accused were responsible under Section 302 read with Section 34 of the IPC,
and the fourth did not have the same purpose.
The Supreme Court decided in Kripal Singh v. State of U.P., 1954, that a common intention
might exist in the place once the offenders had congregated there. A prior strategy is not
required. The accused’s behaviour and the facts of the case can be used to establish common
intent.
Viswanathan v. State Rep. By Inspector of Police
A young woman was riding home from work when she was attacked and raped by a group of
men. While the woman was able to identify three of her assailants, due to falling
unconscious, she was unsure of who had raped her. No Test Identification Parade was held.
Upon examination, she was found with no bodily injuries. The Trial Court convicted six men
finding common intention to commit gang rape. The Supreme Court affirmed in part and
reversed in part. Three of the convictions could not be upheld because of the victim’s failure
to identify them. The significance of this case, however, is the Court’s recognition that
identifiable physical injury is not necessary to prove rape; the circumstances in which a
victim is found can be sufficient. And the recognition that not all of the convicted must have
committed the actual rape but need only have the intention to commit gang rape.
(Postmaster case) Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1. Is the landmark
case of common intention, in this case, Barendra Kumar Ghosh with 3 other members went
for post office robbery and demanded money, In the meantime, they open their firearms,
killed the postmaster and start running but somehow Barendra Kumar Ghosh was caught with
the gun in his hand and handover to the police.Later on, he was tried with sec. 302/34 of the
IPC, the session court and the High Court passed the death sentence. The accused denied his
charge on the ground that he was simply standing outside the door and had not fired the
deceased.

MEMORANDUM FOR THE RESPONDENT

As per section 376D of the Indian Penal Code, the convict shall be punished with rigorous
imprisonment for not less than 20 years to imprisonment for natural life and with a fine to be
paid to the victim
How to file or defend your case having constituents of offences under IPC 376D?
The case under Section 376D will simply be whistled by registering a First Information
Report at the nearest police station to the place of occurrence. Delay in this matter leads to
wiping out important evidence.
How to defend: Section 376D of IPC deals with Gang rape which is a very serious charge.
So, when someone is charged under this section, then they are advised to hire an expert
criminal lawyer who has experience in dealing with criminal matters. The offence under
section 376D is non-bailable, cognizable, and non-compoundable due to which it is very
difficult for an accused to get bail. Therefore, an experienced lawyer will be able to guide on
the available defenses, pleas, and bargains likely to be offered and the expected result of the
trial, depending upon the facts and circumstances of the case.
Important Judgements:
Mohan Lal & Anr Vs. State of Punjab (2013)12SCC519: A group of teachers including the
Director of Education of Punjab State had forcibly raped a student. The trial court sentenced
the imprisonment of ten years on the accused and a fine was also imposed, default of such
fine will make them go under further rigorous imprisonment for a duration of one year and
six months respectively.
The Supreme Court had responded to the accused’s appeal by stating that, this was a case of
gang rape by the teachers of their student girl and the trial court’s punishment of ten years of
rigorous imprisonment can easily be converted to a punishment of life imprisonment for all
the accused individuals.
Shimbhu and Anr. vs State of Haryana (2014)13SCC318: In this case, the victim, in this case,
was gang-raped by the accused. The additional session judge sentenced the accused to ten
years of rigorous imprisonment along with a fine. The High court also upheld this decision.
The accused filed an appeal claiming that he should be awarded lesser punishment as there
has been a compromise between the parties. The court dismissed these contentions on the
grounds that gang rape is a non-compoundable offence and cannot be considered a leading
factor in reducing the punishment, as there may be a possibility that the victim had been
pressurized for the compromise.
Nirbhaya Gang Rape Case:
The deceased victim, a 23-year-old female was brutally raped and tortured in a moving bus
by six men including a minor. The victim was tortured to such an extent that she was not only
raped but also forced to have anal sex, after that the accused inserted an iron rod into her
genitals, and her intestines were pulled out of her body and her genitals were damaged. After
raping her, she along with her male friend who was severely injured and unconscious while
attempting to save her were thrown out naked of the moving bus on a winter night on the
roads of Delhi.

MEMORANDUM FOR THE RESPONDENT

The Court sentenced the death penalty to the five adults accused of gang rape. Out of them,
one committed suicide in jail, and the rest were hanged to death. Further, the accused who
was a minor was sent to a reform facility for three years.

PRAYER

“May it please this Honorable Court to be graciously pleased:

1. To dismiss and reject the present appeal against conviction filed by the respondent.
2. To uphold the judgment and decision of the Trial Court in [mention lower court’s
name and case number], which was arrived at after careful consideration of the
evidence and in accordance with the law.
3. To affirm the conviction rendered by the Trial Court, as it was based on sound legal
principles and proper application of the law.
4. To exercise restraint and avoid interfering with the findings of fact made by the Trial
Court, unless they are clearly erroneous or unsustainable.
5. To uphold the principles of finality and due process, thereby ensuring that justice is
served while respecting the trial court’s verdict.
6. To award any other appropriate order, relief, or direction as deemed fit and just by
this Honorable Court.

Sd/-

Counsel for the Respondent

MEMORANDUM FOR THE RESPONDENT

 EXHIBITS

Shimbhu and Anr. vs State of Haryana (2014) 13 SCC 318

R. Venkatakrishnan vs Central Bureau Of Investigation (CBI)

Parveen v. State of Haryana (2021) SC
The State of Maharashtra v. Vijay Mohan Jadhav and others (Shakti Mills Rape
Case)

Chhotu v. State of Maharashtra (1998)

Viswanathan v. State Rep. By Inspector of Police

Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1

Mohan Lal & Anr Vs. State of Punjab (2013) 12 SCC 519
Nirbhaya Gang Rape Case

MEMORANDUM FOR THE RESPONDENT