7TH RCL MOOT COURT COMPETITION,2017

RCL-12

RAYAT COLLEGE OF LAW

7TH RCL MOOT COURT COMPETITION, 2017

BEFORE THE HON’BLE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS,

BHOPAL

CRIMINAL CASE NO. ______ /2017

UNDER SECTION 190 OF CRIMINAL PROCEDURE CODE,1973

IN THE MATTER OF

STATE OF MADHYA PRADESH

(PROSECUTION)

v.

SUMANT

(DEFENDANT)

ON SUBMISSION TO THE HON’BLE JUDICIAL MAGISTRATE OF FIRST CLASS

MEMORIAL ON BEHALF OF THE PROSECUTION

MEMORIAL ON BEHALF OF PROSECUTION

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TABLE OF CONTENTS

……………………………………………………………….4

…………………………..8

ARTICLE……………………………………………………….………………………..8

RULE………………………………………………………………………………………..9

JOURNAL………………………………………………………………………………….10

11

STATEMENT OF ISSUES………………..……………………………………………….12

13

15

16

1. WHETHER OR NOT ACCUSED IS LIABLE FOR CYBER STALKING?........................................17

[1.1] THAT THE ACCUSED HAS STALKED THE VICTIM.......................................................................17

[1.2]THAT THE ACCUSED HAS COMMITED OFFENCE OF CYBER-STALKING................................18

2. WHETHER OR NOT SUMANT IS LIABLE FOR UPLOADING OBSCENE PHOTOGRAPH DEPICTING

CHILD PORNOGRAPHY AND, THEREBY, VIOLATING THE PRIVACY OF THE VICTIM?............20

[2.1] THAT CONCLUSIVE CHAIN OF CIRCUMSTANTIAL EVIDENCE PROVES IS CONCLUSIVE.....20

[2.2] THAT ACCUSED UPLOADED OBSCENE PHOTOGRAPH.................................................................23

[2.2.1]TEST FOR OBSCENITY.....................................................................................................................24

[2.3] THAT THE ACCUSED IS LIABLE FOR CHILD PORNOGRAPHY.....................................................25

[2.4] THAT THE ACCUSED INVADED THE PRIVACY OF THE VICTIM.................................................27

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3.WHETHER THE ACCUSED USED CRIMINAL FORCE TO VOLUNTARILY CAUSE HURT TO THE

VICTIM, BY WRONGFULLY RESTRAINING HER?...................................................................................29

[3.1]CRIMINAL FORCE IS USED..............................................................................................................................29

[3.1.1]. THAT FORCE IS USED (ACTUS REUS)...................................................................................................29

[3.1.2] FORCE IS APPLIED INTENTIONALLY (MENS REA...............................................................................30

[3.2] THAT ESSENTIALS OF S. 323 OF IPC ARE FULFILLED.............................................................................30

[3.2.1]THAT HURT IS CAUSED (ACTUS REUS)..................................................................................................30

[3.2.2]THAT MENS REA IS PRESENT....................................................................................................................31

[3.3] THAT THE ACCUSED WRONGFULLY RESTRAINED VICTIM IN WASHROOM....................................31

4. WHETHER OR NOT ACCUSED IS LIABLE FOR OUTRAGING VICTIM’S MODESTY AT BLUE ICE

AND INSULTING HER MODESTY BY UPLOADING HER MORPHED PHOTOGRAPH 32

[4.1] CRIMINAL FORCE HAS BEEN USED WITH INTENT TO OUTRAGE MODESTY OF THE VICTIM......32

[4.1.1]TEST OF THE OUTRAGE OF MODESTY...................................................................................................32

[4.1.2] CULPABLE INTENTION AS AN INGREDIENT.......................................................................................33

[4.2] ACT OF ACCUSED INSULTED THE MODESTY OF VICTIM.......................................................................33

[4.2.1] THAT ACTUS REUS IS PRESENT...............................................................................................................34

[4.2.2] THAT MENS REA IS PRESENT..................................................................................................................34

5. WHETHER ACCUSED IS LIABLE FOR DEFAMATION AND FORGERY TO HARM

REPUTATION BY UPLOADING MORPHED PHOTOGRAPH THROUGH A FAKE

FACEBOOK ACCOUNT?.........................................................................................................................35

[5.1] THAT THE PHOTO UPLOADED IS DEFAMATORY.....................................................................................35

[5.1.1] THAT IMPUTATION IS MADE & PUBLISHED IN FORM OF MORPHED PHOTOGRAPH (ACTUS
REUS)................................................................................................................................................................................35

[5.1.2] THAT INTENTION WAS TO HARM VICTIM’S REPUTATION (MENS REA)......................................36

[5.2] THAT FORGERY IS DONE FOR PURPOSE OF HARMING REPUTATION................................................37

[5.2.1] THAT AN ELECTRONIC RECORD IS FORGED......................................................................................37

[5.2.2] THAT REPUTATION OF VICTIM IS HARMED........................................................................................38

[5.3] THAT THE ACCUSED HAS COMMITED THE OFFENCE OF IDENTITY THEFT......................................38

PRAYER...........................................................................................................................................40

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LIST OF ABBREVIATIONS

1.
SCC Supreme Court Cases

2.
AIR All India Reporter
3.
IT Information Technology Act, 2000
4.
CrPC Criminal Procedure Code1973
5.
IPC Indian Penal Code, 1860.
6.
IEA Indian Evidence Act,1872
7.
Cr LJ Criminal Law Journal
8.
§. OR §§. Section or Sections
9.
u/s Under Section
10.
v. Versus
11.
ed. Edition
12. IRWPA The Indecent Representation of Women (Prohibition)
Act, 1986

13. POCSO The Protection Of Children From Sexual Offences Act,

2012

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INDEX OF AUTHORITIES

 CASES REFERRED

1. A.K Bohra v. Raja Ram Mallah,Criminal Petition No. 227 of 2008.

2. Abdul Hakim v. Tej Chandar, (1881) 3 All 815.

3. Acting Government Pleaders v. Venkatachala Mudali, 1Weir 341.

4. Aman Kumar v. State of Haryana, (2004) 4 SCC 379.

5. Aman Singh v. State of Haryana, 2005 (2) MPHT 32.

6. Amar Singh v. KS Badalia, (1965) 2 Cr LJ 693(Pat).

7. Aveek Sarkar and Anr. v. State and Anr , (2004) 3 CALLT 363 HC,2004 CriLJ 2937.

8. Avnish Bajaj v. State, (2005) 3 CompLJ 364 Del..

9. B.K. Adarsh v. Union of India, AIR 1990 AP 100.

10. B.P. Bhaskar v. B.P. Shiva, 1993 CR LJ 2685 (Mad).

11. Balaram Sahu v Chandra Sahu AIR 1921 Pat 391.

12. Bihari Lal and another v. The Crown, 1934 SCC OnLine Lah 84.

13. Bisheshwar Murmu v State Of Bihar 2004 CriLJ 326, 2003 (4) JCR 468 Jhr.

14. C.Chenga Reddy v. State of A.P., (1996) 10 SCC 193.

15. C.K. Karodhar v State of Maharashtra 1970 AIR 1390, 1970 SCR (2) 80.

16. Chaitan Charan Das v. Raghunath Singh, 1959 CrLJ 1006.

17. Chandrika Sao v. State of Bihar, AIR 1967 SC 170.

18. Devendra v. State of Uttar Pradesh, (2009) 7 SCC 495.

19. Devidas Ramachandra Tuljapurkar v. State Of Maharashtra & Ors 2015 SCC OnLine SC

486.

20. Draker v Schreiber, 271 S.W.3d 318,320-321.

21. Emperor v. Tarak Das Gupta, AIR 1926 Bom 159.

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22. Greene v. Delanney, (1870) 14 WR (Cr) 27.

23. Hanumant v. State of M.P., AIR 1952 SC 343.

24. Harcharan  Lal @ Harishankar v.Union of India, 2016 SCC OnLine All 543.

25. Jacob Mathew & Anr. v. Manikantan alias G. Mani & Anr., 2012 SCC OnLine Ker 31699 :

(2012) 3 KLJ 567.

26. Jagannath Misra v. Ram Chandra Deo, AIR 1945 Pat 450.

27. Jainaram Singh v. Emperor, AIR 1941 Pat 9.

28. Kalandi Charan Lenka v State of Orissa, 2017 SCC Online Ori 52.

29. Katz v. United State, 389 US 347: L Ed 2d 576 (1987).

30. Keshab Padhan v. State of Orissa,1976 Cuttack LR (Crl) 236.

31. Kishore Samrite v. State of U.P. & Ors. 

32. Krishna Kanta v. Geeta Roy, 1982 Ch Cr Cas 54 .

33. Laxman Naik v. State of Orrisa, AIR. 1955 SC 1387.

34. Maqbool Fida Hussain v. Raj Kumar Pandey, Crl. Revision Petition No. 114/2007 .

35. Mir Nagvi Askari v. C.B.I.,  AIR 2010 SC 528; (2009) 15 SCC 643.

36. Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr., 1996 AIR 309, 1995 SCC

(6) 194.

37. Nilgiris Bar Association v. T.K. Mahalingam & Anr., AIR 1998 SC 398.

38. Nripendra Nath Basu v. Kisen Bahadur, (1952) ILR 1 Cal 251.

39. Pat Sharpe v. Dwinjendra Nath Bose, (1964) 1 Cr LJ 367.

40. Pichapillai v State, 1996 Cr LJ 3634 (Mad.).

41. Rajesh Vishwakarma v. State Of Jharkhand,2011 CrLJ 2753 (Jha).

42. Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677.

43. Ranganayakamma v. State of Andhra Pradesh, 1967 CrLJ 849 : AIR 1967 AP 208.

44. Regina v. Hicklin, L.R. 2 Q.B. 360 (1868).

45. Roth v. United States, 354 U.S. 476 (1957.

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46. S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

47. S.P Malik v. State of Orissa Anr., 1982 Cr LJ 19(Pat).

48. Sadashiv Atmaram, (1893) 18 Bom 205.

49. Sadashiv Mondal v. Emperor, AIR 1915 Cal 131.

50. Samaresh Bose v. Amal Mitra (1985) 4 SCC 289.

51. Saminada Pillai, (1882) 1 Weir 339.

52. Sankara, (1883) 6 Mad 381.

53. Sharad Birdhichand Sarda v. State of Maharashtra, 1984 AIR SC 1622.

54. Smt. Kiran Bedi v. The Committee of Inquiry & Anr.,(1989) 1 SCC 494.

55. State of Punjab v. Major Singh, (AIR 1967 SC 63).

56. State of Tamil Nadu v. Suhas Katti, C.C.no. 4680/2004.

57. State of Uttar Pradesh v. Ranjit Singh, AIR 1999 SC 1201.

58. Sukdeo Vithal Pansare v. Prabhakar Sukdeo Pansare, (1974) Cr LJ 1435(Bom).

59. Sukhram v. State of Maharashtra , (2008) 7 SCC 502.

60. Sushil Suri v. C.B.I., (2011) 5 SCC 708.

61. Taki Husain, (1884) 7 All 205 (FB).

62. Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.

63. Thiagaraya v. Krishnasami, (1892) 15 Mad 214.

64. Umedbhai v. State of Gujarat, AIR 1978 SC 424.

65. US v. Knox, 129 S. Ct. 1525.

66. Varnakote Illath v. Kotalmmana Keshavan, (1900) 1 Weir 579.

67. Veeda Menezes v.Yusuf Khan Hazi Ibrahim Khan, 1966 CrLJ 1489.

68. Vereinigung Bildender Kinstler v. Austria ,Application no. 68354/01.

69. Vijay Kumar Arora v. State (NCT of Delhi), (2010) 2 SCC 353.

70. Vinnay D . Nagar v. State of Rajasthan, (2008) 5 SCC 597.

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 BOOKS REFERRED

1. AVTAR SINGH, PRINCIPLE OF THE LAW OF EVIDENCE (19th ed. 2011).

2. BATUK LAL, LAW OF EVIDENCE(19thed. 2011).

3. K D GAUR, CRIMINAL LAW: CASES AND MATERIAL (5th ed. 2008).

4. K.D.GAUR, INDIAN PENAL CODE (12th ed. 2014).

5. K.N.PILLAI, GENERAL PRINCIPLES OF CRIMINAL LAW (1st ed. 2003).

6. M.A.KHAN, COMMENTARIES ON THE INDIAN PENAL CODE (2002).

7. RATANLAL&DHIRAJLAL, CRIMINAL PROCEDURE CODE (2nd ed. 2015).

8. RATANLALDHIRAJLAL , LAW OF EVIDENCE, (23d ed. 2011) .

9. RATANLALDHIRAJLAL, INDIAN PENAL CODE (34TH ED. 2014).

10. S C SARKAR, THE CODE OF CRIMINAL PROCEDURE (10TH ED. 2012).

11. S K SARAVARIA, INDIAN PENAL CODE (10TH ED. 2008).

12. PSA PILLAI, CRIMINAL LAW (12TH ED. 2016).

13. ANIRUDH RASTOGI,CYBER LAW:LAW OF INFORMATION TECHNOLOGY AND INTERNET

(1ST ED. 2014).

14. JUSTICE YATINDER SINGH, CYBER LAWS (5TH 2013).

15. TALAT FATIMA, CYBER CRIMES (1ST EDN 2011).

16. DR. AVANTIKA VERMA, CYBER CRIMES AND LAW(1ST EDN 2012).

17. R A NELSON’S, INDIAN PENAL CODE 3490 (10TH ED. 2008).

 ARTICLES

1. A. Travis,Bound &Gagged, A Secret History of Obscenity in Britain

293(2000).

2. Anupam Kishore Sinha, Efficacy of Information Technology (Amendment) Act, 2008 vis-À-

vis Cyber Crimes3 MLJ Crl 59 (2009).

3. Bradley Kay, Extending tort liability to creators of fake profiles on social networking

websites,10 CHI-KENT J. INTELL PROP 1,3(2010).

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4. David Kirk, Identifying Identity Theft, Journal of Criminal Law, 78 J. Crim. L. (2014)

5. Dr.A. Prasanna, Cyber Crimes: Law And Practice.

6. L. F. Lowenstein, The Stalking Phenomenon, .73 Police J. 153 (2000).

7. Michigan Women’s Commission , A Citizen’s Guide to Stalking, available at,

8. Shachi Sharma, Cyber Stalking. Cyber Crime Investigation Cell, Mumbai.

9. Terry D. Willis, Cyber-Law: Uncharted Waters, 23 AMERICAN BAR ASSOCIATION STABLE,

36-39 (2006)

10. The New Age of Stalking: Technological Implications for Stalking, 61 JUVENILE AND

FAMILY COURT JOURNAL  39-56 (2010).

 LEXICON

1) Black’s Law Dictionary, 9th ed.

 STATUTES

1) INFORMATION TECHNOLOGY ACT, 2000.

2) INDIAN EVIDENCE ACT, 1872.

3) THE CRIMINAL PROCEDURE CODE, 1973.

4) INDIAN PENAL CODE, 1860.

5) PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,2012

6) INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT,1986

 RULES

1. THE INFORMATION TECHNOLOGY (QUALIFICATION AND EXPERIENCE OF ADJUDICATING

OFFICERS AND MANNER OF HOLDING ENQUIRY) RULES, 2003

 WEBSITES

1) http://www.lexisnexis.com/in/legal

2) https://www.scconline.co.in/

3) http://www.judis.nic.in
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4) www.jstor.org

5) http://www.heinonline.org

6) http://cybercellmumbai.gov.in

7) http://www.img.kerala.gov.in

 JOURNAL

1) MADRAS LAW JOURNAL

2) JUVENILE AND FAMILY COURT JOURNAL 

3) THE STALKING PHENOMENON POLICE JOURNAL

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STATEMENT OF JURISDICTION

The prosecution has approached Hon’ble Judicial Magistrate of First Class,Bhopal, in the matter of

State of Madhya Pradesh v Sumant , under Section 1901 of the Criminal Procedure Code, 1973 as

provided for in S. 4(l) of The Information Technology (Qualification And Experience Of

Adjudicating Officers And Manner Of Holding Enquiry) Rules, 20032.

All of which is respectfully submitted

1
Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-
section (1) of such offences as are within his competence to inquire into or try.
22
Scope and Manner of holding inquiry 
(l) Adjudicating Officer, when convinced that the scope of the case extends to the Offence(s) (under Chapter XI of IT
Act) instead of Contravention, needing appropriate punishment instead of mere financial penalty, should transfer the
case to the Magistrate having jurisdiction to try the case, through Presiding Officer.
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STATEMENT OF ISSUES

ISSUE-1

1. WHETHER OR NOT ACCUSED IS LIABLE FOR CYBER STALKING?

ISSUE-2

2. WHETHER OR NOT SUMANT IS LIABLE FOR UPLOADING OBSCENE

PHOTOGRAPH DEPICTING CHILD PORNOGRAPHY AND, THEREBY,

VIOLATING THE PRIVACY OF THE VICTIM?

ISSUE-3

3. WHETHER THE ACCUSED USED CRIMINAL FORCE TO VOLUNTARILY CAUSE

HURT TO THE VICTIM, BY WRONGFULLY RESTRAINING HER?

ISSUE 4

WHETHER OR NOT ACCUSED IS LIABLE FOR OUTRAGING VICTIM’S MODESTY

AT BLUE ICE AND INSULTING HER MODESTY BY UPLOADING HER MORPHED

PHOTOGRAPH

ISSUE 5

2. WHETHER ACCUSED IS LIABLE FOR DEFAMATION AND FORGERY TO

HARM REPUTATION BY UPLOADING MORPHED PHOTOGRAPH THROUGH A

FAKE FACEBOOK ACCOUNT?

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STATEMENT OF FACTS

 Ananya, a seventeen and a half Years Student of NIFT, Bhopal had been together for nearly two

years with Sumant .his constant harassing had worn her down to the point where her friends

hardly recognised the pale and sunken-eyed girl who had once been the life and soul of the

party.

 She had hardly seen most of her friends for the last year, as Sumant had insisted on reading all

her SMS’s and emails and had complained every time she went out with them, telling her she

had to choose: him or them.

 It was only with the help of Nilanjana, her best friend she moved out of the flat she shared with

Sumant and onto Tina’s flat.

 After nearly a week, when she logged onto her Facebook account, the first thing she saw was

the 56 messages, all from Sumant – some were pleading, others threatening. Her email account

was similar – 3 or 4 messages a day, some pages and pages long, begging, pleading, cajoling

and aggressive in turn. Then the phone calls started. At first they came once or twice a day, and

then 5 or 10 times, sometimes at 2 in the morning.

 In desperation she changed her SIM and got a new number. She also removed him as a friend

from all her social media accounts for good measure, and blocked his emails.

 On Friday, They all headed out to Blue Ice, where she saw that Sumant had just walked into the

bar.She got up to go to the bathroom and as she was washing her hands, she felt an arm around

her neck. She was dragged across the floor, spun around and pinned to the wall by her throat.

“You’re MINE,” said Sumant, “don’t forget that. You will always be mine. I will always know

where you are and you’ll never get rid of me.”

 Over the next week, still jumpy, she began looking over her shoulder wherever she went. Not

feeling like another encounter with Sumant, she stayed home and found companionship

socializing online, talking with her friends and telling people about her day, her life and her

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thoughts. Once or twice, she thought she heard strange noises in the garden, but she put it down

to her fragile state of mind. No WAY could Sumant find her here – he had no idea where

Tammy lived.

 Still, her state of mind didn’t improve. She kept thinking she saw glimpses of Sumant wherever

she went, but she knew her mind was playing tricks on her. She began jumping at shadows

again, losing weight, and soon she was looking as pale and frightened as ever.

 The final blow came on a Monday morning. On the screen was a nude picture of her and across

the bottom of the picture were the words: "CALL FOR A GOOD TIME, ANANYA AT

0721234567 OR COME OVER TO 9 GROVER ROAD, BHOPAL."

 The photo had her face but not her body.they went to the Cyber Cell And explained what had

happened,further asking them to patrol the street 24/7 as there had been some strange vehicles

parked in the road and had gladly agreed.

 The Cyber Cell incharge at the police station explained to her that what had most likely

happened was that she was the victim of what the police called cyber-stalking and that she

needed to learn how to secure her online presence and be very careful who she befriended.

 He also assured her that the Cyber Crime Unit could forensically trace the malicious poster and

prosecute him for wrongdoing.

 Ananya went in to severe depression and had to be hospitalized for atleast fifteen days and had

to spend Rs. 1lakh on medicines and hospital charges.

 Within a month, with the help of her friends and counsellors, she was learning to deal with the

trauma and get on with her life, while Sumant was caught by the Police. Within a month,

Ananya had secured every account she had online, changed her number and moved into a flat of

her own.

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SUMMARY OF ARGUMENTS

ISSUE-1

1. WHETHER OR NOT ACCUSED IS LIABLE FOR CYBER STALKING?

It is contended before this Hon’ble Court that accused has committed the offence of cyber stalking

as he was stalking victim via internet since the time she moved out of the flat like an obsessional

stalker who is in dissonance with his broken relationship and monitors, follows and threatens the

victim constantly. Hence, the accused must be held liable u/s 354D of IPC.

ISSUE-2

2. WHETHER OR NOT SUMANT IS LIABLE FOR UPLOADING OBSCENE

PHOTOGRAPH DEPICTING CHILD PORNOGRAPHY AND, THEREBY,

VIOLATING THE PRIVACY OF THE VICTIM?

It is humbly submitted before this Hon’ble Court that there is a conclusive chain of circumstantial

evidence which proves that morphed photograph has been published and transmitted by the accused

on online platform which was obscene material. Moreover, the accused committed the crime of

Child Pornography as the victim was a minor and the photograph contained sexually explicit

content which further constitutes the offence of under §66E of IT.

ISSUE-3

3. WHETHER THE ACCUSED USED CRIMINAL FORCE TO VOLUNTARILY CAUSE

HURT TO THE VICTIM, BY WRONGFULLY RESTRAINING HER?

It is humbly submitted before the Hon’ble court that the accused must be held liable u/s 350, 323

&341 of IPC for applying criminal force to withhold her in order to cause hurt by holding her by

throat and in doing so he voluntarily obstructed her from going out of the washroom, thereby,

committing wrongful restraint.

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ISSUE 4

4. WHETHER OR NOT ACCUSED IS LIABLE FOR OUTRAGING VICTIM’S

MODESTY AT BLUE ICE AND INSULTING HER MODESTY BY UPLOADING HER

MORPHED PHOTOGRAPH

It is humbly pleaded before the Hon’ble Court that the accused should be held liable for outraging

and insulting the modesty of the victim. For what the accused did in washroom in Blue Ice was

capable of outraging victim’s modesty and by uploading her nude photograph on social media he

had insulted her modesty. Hence, he must be held liable for §. 354 and 509 of IPC as all the

ingredients required have been fulfilled.

ISSUE 5

5. WHETHER ACCUSED IS LIABLE FOR DEFAMATION AND FORGERY TO HARM

REPUTATION BY UPLOADING MORPHED PHOTOGRAPH THROUGH A FAKE

FACEBOOK ACCOUNT?

It is most humbly submitted before the Hon’ble Court that by forging uploading morphed photo of

the victim along with an obscene message , which has been seen by her as well as her friends, the

accused should be held liable under §500 and §469 of IPC.

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ARGUMENTS ADVANCED

ISSUE-1

WHETHER OR NOT ACCUSED IS LIABLE FOR CYBER STALKING?

It is contended before this Hon’ble Court that Sumant (herein after referred as ‘accused’) has

committed the offence of cyber stalking and has invaded the privacy of Ananya (herein after

referred as ‘victim’). It is humbly submitted that accused was stalking [1.1] victim via internet [1.2]

since the time she moved out of the flat.

[1.1] THAT THE ACCUSED HAS STALKED THE VICTIM

A. Stalking can be defined as an act or instance of following or loitering near another, often

surreptitiously, to annoy or harass that person or to commit a further crime. 3 In an ordinary sense,

Stalking refers to harassing or threatening behaviour that an individual engages in repeatedly towards

another person.4

B. §. 354D IPC expounds stalking as a ‘wilful course of repeated conduct’ of a man who follows a

woman in ‘attempt to contact’ or ‘foster personal interaction’ with such woman; or ‘monitor the use of

internet or any other form of electronic communication’ by her; or ‘watches or spies’ on her, despite a

clear disinterest by such woman.

C. It is humbly submitted that in the present case, despite a clear indication of disinterest by victim,

she was followed by the accused through the internet (electronic medium), that is when he traced her

through her online ‘check-in’5 and is guilty of the offence of stalking as defined in this Section.6

D. §.354D IPC has some circumstances that stand as the exceptions to the section, if the accused

proves that he was stalking victim because he was entrusted with the responsibility of prevention and

3
Black’s Law Dictionary1534 (9th ed. 2009).
4
Michigan Women’s Commission , A Citizen’s Guide to Stalking, available at,
http://members.aol.com/aardvarc1/stalking/stalking.htm (last visited Feb 15,2017)
5
Moot Proposition, Pg. 2.
6
RATANLAL RANCHHODDAS & DHIRAJLAL KESHAWLAL THAKORE, RATANLAL & DHIRAJLAL’S INDIAN PENAL CODE
820 (34th ed. 2014).
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detection of crime by the State; 7 or was pursued under any law or to comply with any condition; 8 or in

the particular circumstances such conduct was reasonable and justified. 9 But in the present case, the

accused was no where neither entrusted with any responsibility by any authority or under any law nor

his conduct was reasonable and justified under any circumstances.

[1.2]THAT THE ACCUSED HAS COMMITED OFFENCE OF CYBER-STALKING

E. When a person follows other person with a view to harass that person and such stalking takes place

online by use of internet, computers and other technological tools, 10 it is known as cyber stalking.11

Cyber-stalking on internet can take many forms including stalking on social networking websites,

through emails or text message, phone calls through internet or cell phones, e-mails to terrify and

disrupt victim.12 ‘Cyber-stalking’ usually puts the victim to threat of life or property or causes

emotional harassment to the victim.

F. Women form a major part of victims of cyber stalking,13 who are stalked by men, or children who

are stalked by adult predators.14 Out of the different categories of cyber stalkers, most common

stalkers are obsessional cyber stalker, 15 who usually have had a prior relationship with the victim and

cannot come to terms with the fact that his or her relationship is over. One should not be misled by

believing that this stalker is harmlessly in love and incapable of causing real harm. In greatest

probabilities he may post information on any website related to sex-services or dating services,

posing as if the victim is posting this information and invite the people to call the victim on her

telephone to obtain sexual services.16

7
§354 D IPC 1860,(Act 45 of 1860).
8
Id.
9
Id.
10
The New Age of Stalking: Technological Implications for Stalking, 61 JUVENILE AND FAMILY COURT JOURNAL  39-56
(2010) (last visited Feb 8,2017)
11
Terry D. Willis, Cyber-Law: Uncharted Waters, 23 AMERICAN BAR ASSOCIATION STABLE, 36-39 (2006) available at,
http://www.jstor.org/stable/23673085 (last visited Feb 6,2017).
12
Supra note 10.
13
Dr.A. Prasanna, Cyber Crimes: Law And Practice, available at http://www.img.kerala.gov.in/docs/downloads/cyber
%20crimes.pdf (last visited Feb 10,2017)
14
DR. AVANTIKA VERMA, CYBER CRIMES AND LAW (2012).
15
Shachi Sharma, Cyber Stalking, available at http://ujala.uk.gov.in/files/ch20.pdf (last Visited Feb 3,2017).
16
Cyber Crime Investigation Cell, Mumbai, available at http://cybercellmumbai.gov.in/html/cyber-crimes/cyber-
stalking.html (last visited Feb 12,2017).
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 7TH RCL MOOT COURT COMPETITION,2017
G. It is humbly submitted that in the present case the accused can be regarded as the obsessional cyber

stalker, who was trying to coerce the victim into re-establish the relationship 17 as he paid attention to

victim’s activities, followed her and even threatened her. 18

17
L. F. Lowenstein, The Stalking Phenomenon, .73 Police J. 153 (2000), available at,
http://www.heinonline.org.spicework.ddn.upes.ac.in:2048/HOL/Page?
handle=hein.journals/policejl73&div=26&start_page=153&collection=journals&set_as_cursor=0&men_tab=srchresults
(last visited Feb 16,2017)
18
Id.
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 7TH RCL MOOT COURT COMPETITION,2017

ISSUE-2

WHETHER OR NOT SUMANT IS LIABLE FOR UPLOADING OBSCENE

PHOTOGRAPH DEPICTING CHILD PORNOGRAPHY AND, THEREBY, VIOLATING

THE PRIVACY OF THE VICTIM?

It is humbly submitted before this Hon’ble Court that there is a conclusive chain of circumstantial

evidence [2.1] that accused transmitted and published morphed photograph of the victim on online

platform which was obscene in nature [2.2] Moreover, the accused committed the crime of Child

Pornography as the victim was a minor and the photograph contained sexually explicit content [2.3]

which further constitutes the offence of under §66E of IT Act [2.4].

[2.1] THAT CONCLUSIVE CHAIN OF CIRCUMSTANTIAL EVIDENCE PROVES IS

CONCLUSIVE

A. It is humbly submitted that the charges levied against the accused in this case are based on the

circumstantial evidence which are further based upon/on inference and not on personal knowledge

or obstruction or evidence of relevant facts from which one can, by a process of intuitive reasoning,

infer existence of fact in issue or factum probandum19.

B. Supreme Court in case of Sharad Birdhichand Sarda v. State of Maharashtra20 described five

golden principles laid down in Hanumant v. State of M.P.,21 that must be fulfilled before a case

against an accused can be said to be fully established on circumstantial evidence which were

reaffirmed by subsequent cases22.

i. The circumstances from which the conclusion of guilt is to be drawn must or should be and not

merely ‘may be’ fully established,

19
Black’s Law Dictionary 627(9th ed. 2009).
20
Sharad Birdhichand Sarda v. State of Maharashtra, 1984 AIR SC 1622.
21
Hanumant v. State of M.P., AIR 1952 SC 343.
22
Umedbhai v. State of Gujarat, AIR 1978 SC 424; Repeated in, Laxman Naik v. State of Orrisa, AIR. 1955 SC 1387;
Sukhram v. State of Maharashtra , (2008) 7 SCC 502, Chain of circumstances must be so complete as to leave no gaps
and must also be established; Vinnay D . Nagar v. State of Rajasthan, (2008) 5 SCC 597 the supreme court restated
principles to be followed in basing conviction on such evidence.

MEMORIAL ON BEHALF OF PROSECUTION

20
 7TH RCL MOOT COURT COMPETITION,2017
ii. The facts so established should be consistent only with the hypothesis of the guilt of the

accused , that is to say , they should not be explainable on any other hypothesis except that the

accused is guilty,

iii. The circumstances should be of a conclusive nature and tendency,

iv. They should exclude every possible hypothesis except the one to be proved, and

v. There must be a chain of evidence so complete as not a leave any reasonable ground for the

conclusion consistent with the innocence of accused and must show that in all human

probability the act must have been done by the accused.

C. The chain of circumstantial evidence against the accused in this case is coherent with these

principal of circumstantial evidence and the below stated circumstantial evidence forms a conclusive

chain, the chain being:

1. After a dreadful relationship of two years with Sumant and sharing same flat with him, Ananya,

at last, moved-out of both with the help of her friend, Nilanjana.

2. After a week, when she checked her facebook and mails, she saw 56 messages on her Facebook

account from Sumant, some in the form of pleading, while the others were threatening.

Similarly her email account received 3 or 4 messages a day, one to two pages long, begging,

pleading, cajoling and aggressive in turn. Then the phone calls started from once or twice a day,

to 5 or 10 times, sometimes at 2 in the morning.

3. Eventually in annoyance she changed her SIM, removed him as a friend from all her social

media accounts, and blocked his emails.

4. On one Friday, Anaya and her friends went to Blue Ice for drinks after two of her new online

friends told her that they go to Blue Ice every Friday.

5. An hour after she checked in on Social media about her location, she spots Sumant there, but it

was most unlikely of him being there, as he never comes to this place.

6. Further, while she was in bathroom, she felt an arm around her neck. She was dragged across

the floor, spun around and pinned to the wall by her throat by Sumant and he said, “You’re mine
MEMORIAL ON BEHALF OF PROSECUTION
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 7TH RCL MOOT COURT COMPETITION,2017
don’t forget that. You will always be mine. I will always know where you are and you’ll never

get rid of me.” But she manages to flee.

7. After few days of living in fear, on a Monday morning when she went to college, her friend,

Krevan showed nude photos of her on his laptop, at the bottom of which it was written: "CALL

FOR A GOOD TIME, ANANYA AT 0721234567 OR COME OVER TO 9 GROVER ROAD,

BHOPAL."

8. Tina (Ananya’s flat mate) informed the Police Station (cyber cell).the inspector incharge

assured her that the Cyber Crime Unit could forensically trace the malicious poster and

prosecute the personal for wrongdoing and caught Sumant within a month.

D. It is humbly submitted that these circumstantial evidence from which guilt is drawn is fully proved

and such circumstances are conclusive in nature.23 The general principle of criminal jurisprudence is

that the element of mens rea or intention must go in consonance with the actus reus or culpable act

or conduct of the accused. Intention as means “The willingness to bring about something planned or

foreseen: the state of being said to do something”. 24 After going through the chain of evidence it can

be clearly stated that Sumant was of harassing nature towards Ananya and was possessive about

her. Therefore, when Ananya left him, he wasn’t able to successfully design his love towards her

and his one sided love converted him into an obsessional stalker &made him to commit offence

against her by posting her morphed picture online when his attempt of threatening her and re-

establishment of their relation went vain.

E. Further it is contended that all circumstances are complete and no gap is left in the chain of

evidence. The proved circumstances are only consistent with the hypothesis of the guilt of the

accused and totally inconsistent with his innocence, thereby, proving that within all human

probability the act must have been done by the accused.

F. The failure to discover the motive of an offence does not signify its non-existence. The failure to

prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction.
23
C.Chenga Reddy v. State of A.P., (1996) 10 SCC 193.
24
Black’s Law Dictionary 883 (9th ed. 2009).
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 7TH RCL MOOT COURT COMPETITION,2017
When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of

motive does not break the link in the chain of circumstances connecting the accused with the crime,

nor militates against the prosecution case.25

G. Hence the chain of circumstantial evidence successfully proves that it was accused who uploaded

the pictures.

[2.2] THAT ACCUSED UPLOADED OBSCENE PHOTOGRAPH

H. ‘Obscenity’ can be defined as the characteristic or state of being morally abhorrent or socially

taboo, esp. as a result of referring or depicting sexual or excretory functions. §67 of IT Act

discusses punishment for publishing or transmitting obscene 26 material in electronic form to

whoever publishes27 or transmits28 or causes to be published or transmitted any material 29 in the

electronic form30, and such material is lascivious or appeals to the prurient interest or effect is such

as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or

embodied in it.

I. Neither the IT Act nor IPC defines the term “lascivious” or “prurient”. US v Knox31 referred to the

definition of ‘lascivious’ as being tending to excite lust, lewd, indecent, obscene, sexual impurity,

tending to deprave morals in respect to sexual relations. 32 The Webster’s New World Dictionary

defines “prurient” as having lustful ideas or desires full of or causing lust.

J. It is submitted before the court that the offence committed by the accused falls under the ambit of

this section as firstly, the nude photograph uploaded over internet is admissible as evidence u/s 65B

of IEA, and secondly, the accused uploaded an indecent photograph of the victim using internet and
25
Vijay Kumar Arora v. State (NCT of Delhi), (2010) 2 SCC 353.
26
Black’s Law Dictionary 1182(9 th ed. 2009): ‘obscene’ means extremely something offensive under contemporary
community standards of morality ; grossly repugnant to the generally accepted notions of what is appropriate.
27
§66E IT Act, 2000, (Act 21 of 2000).
28
Id.
29
ANIRUDH RASTOGI,CYBER LAW: LAW OF INFORMATION TECHNOLOGY AND INTERNET, 130: ‘any material’ implies
that the section covers obscene material in any electronic form.
30
§ 2(1)(r), IT Act, 2000.
31
 US v. Knox, 129 S. Ct. 1525.
32
32 F3d 733 (1994), at 745 (per Cowan J). Cowan J was reffering to the definition provided in Black’s Law
Dictionary. 1990. 6th edn.:882.
MEMORIAL ON BEHALF OF PROSECUTION
23
 7TH RCL MOOT COURT COMPETITION,2017
that photographed revealed private parts of her body, thus it had a tendency to arise lustful ideas

,thereby, corrupting the mind of those who come in contact with this photograph.

K. §67 deals with the offence of publishing of information which is obscene in the electronic form and

is a model on the basis of section 292 of IPC33. Hence, what is illegal offline, is illegal online34

[2.2.1]TEST FOR OBSCENITY

L. The test of Obscenity, as adopted in, Aveek Sarkar v. State of West Bengal35, is test of

contemporary community standards test36 against the hicklin’s test37. According to this principle, a

picture of a nude/seminude woman, as such, cannot per se be called obscene unless it has the

tendency to arouse feeling or revealing an overt sexual desire. Only those sex-related materials

which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity

has to be judged from the point of view of an average person, by applying contemporary

community standards.

M.Merely treating sex and nudity together cannot be treated as evidence of obscenity without

something more.38 When treatment of sex becomes offensive to public decency and morality as

judged by the prevailing standards of morality in the society, then only the work may be regarded as

an obscene production.

N. Also, decency or indecency of a particular picture, sequence or scene cannot depend upon the

nature of the subject matter, but the question is one of the manner of handling of the subject-matter

and sociological or ethical interest or message which it conveys to the reasonable man.39

33
Maqbool Fida Hussain v. Raj Kumar Pandey, Crl. Revision Petition No. 114/2007 :”The test for obscenity under §67
of IT Act and §292 of IPC were similar”
34
A. TRAVIS,BOUND &GAGGED, A SECRET HISTORY OF OBSCENITY IN BRITAIN 293(2000).
35
Aveek Sarkar v. State of West Bengal 2005 (2) CHN 69.
36
Roth v. United States, 354 U.S. 476 (1957): observed that sex and obscenity are not to be seen as synonyms. It was
held that only those sex-related materials which had the tendency of exciting lustful thoughts were found to be obscene
and the same has to be judged from the point of view of an average person by applying contemporary community
standards.
37
Regina v. Hicklin, L.R. 2 Q.B. 360 (1868)The test of obscenity is whether the tendency of the matter charged as
obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a
publication of this sort may fall. 
38
RATANLAL RANCHHODDAS & DHIRAJLAL KESHAWLAL THAKORE, supra note 6,at 467.
39
B.K. Adarsh v. Union of India, AIR 1990 AP 100.
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 7TH RCL MOOT COURT COMPETITION,2017
O. The photo for readers of cultured and refined taste may feel shocked and disgusted or might have

impure or lecherous thoughts aroused in their minds.

P. In test of obscenity, in praesenti in India is the contemporary community test which has been

explained that the word obscenity is really not vague because it is a word which is well understood

even if persons differ in their attitude to what is obscene and what is not 40 which has been seen in

cases earlier also.41 Applying this test, we can conclude that the nude photograph which makes its

viewers think the victim to be a soliciting sex worker, thereby, harming her reputation, is obscene in

nature.

Q. Presumption of Knowledge (Mens Rea) is not required under Section 67; the assumption of strict

liability can be imposed under S292 of IPC.42

[2.3] THAT THE ACCUSED IS LIABLE FOR CHILD PORNOGRAPHY

R. As per §67B(2) of IT, makes a person liable for creating text or digital images , collecting, seeking,

browsing, downloading, advertising, promoting, exchanging or  distributing  material  in  any

electronic form depicting children43 in obscene or indecent or sexually explicit manner.

S. The nature, meaning and effect of any image or images cannot be judged on the basis of what the

creator purported to convey. What counts is the effect of the visible image on the observer. 44

Pornography in itself is not bad till it is obscene and detrimental to the decency. Something could be

regarded as ‘pornographic’ but still not be obscene, such as an explicit sex film produced and used

to teach medical students about human sexuality or a film or book with serious artistic and/or

literary values which has some explicit sexual content. Thus, SC has protected large amount of

sexual matter in movies, magazines books etc. from being prohibited from sale.

Thus it can be very well said that all the obscene material is pornographic but vice-versa is not true.

40
Devidas Ramachandra Tuljapurkar v. State Of Maharashtra & Ors 2015 SCC OnLine SC 486
41
C.K. Karodhar v State of Maharashtra 1970 AIR 1390, 1970 SCR (2) 80; Samaresh Bose v. Amal Mitra (1985) 4
SCC 289; S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
42
Avnish Bajaj v. State, (2005) 3 CompLJ 364 Del.
43
§67B of IT Act, 2000: "children" means a person who has not completed the age of 18 years.
44
Vereinigung Bildender Kinstler v. Austria ,Application no. 68354/01.
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 7TH RCL MOOT COURT COMPETITION,2017
T. It is further contended before the court that cyber pornography which is defined above, is a difficult

problem due to difference in acceptable limits of morality in different countries. Therefore, the

standard of obscenity would differ from country to country depending upon standard of moral of

contemporary society.

U. For the purpose of this section, it needs to be proved that some material in electronic form has been

published or transmitted which depicts children engaged in sexually explicit act or conduct.

V. In the present case where the accused published45 the nude photos of the victim on internet which

got transmitted46 when victim’s friend viewed it.

W. ‘Any material’ implies that the section covers obscene material in any electronic form 47 i.e. images

like photograph, morphed images and text messages like e-mail, SMSs and through instant

messaging. As per the Explanatory Report to the Convention on Cyber Crime 48 pornographic

material covers depiction of images which although ‘realistic’, do not in fact involve a real child

engaged in sexually explicit conduct. This latter scenario includes pictures which are altered, such

as morphed49 images of natural persons, which has happened in this case.

X. In the light of the above statement, The words as mentioned in the fact sheet, "CALL FOR A

GOOD TIME, ANANYA AT 0721234567 OR COME OVER TO 9 GROVER ROAD, BHOPAL"

are enough to raise levels of physiological or nervous activity in any biological system of a human

and have the effect of depraving, debasing and corrupting the morals of any reader. 50

Y. As contended by the victim the photos are morphed photos as, it is believed, to be photoshoped by

the accused involves Ananya who is, for the purpose of this act a child.51
45
§66E of IT Act, 2000: Publishes means reproduction in the printed or electronic form and making it available for
public.
46
§66E of IT Act, 2000: transmits means to electronically send a visual image with the intent that it be viewed by a
person or persons.
47
See §2(1)(r), IT Act ,2000:Definition of ‘electronic form’
48
Explanatory Report has been adopted by the Committee of Ministers of the Council of Europe at its 109th Session (8
November 2001). https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?
documentId=09000016800cce5b
49
Kalandi Charan Lenka v State of Orissa, 2017 SCC Online Ori 52.
50
ANIRUDH RASTOGI, supra note 29,at 138:‘Sexually explicit’ as actual or stimulated sexual intercourse or lascivious
exhibition of the genitals or pubic area of a minor.
51
§66E of IT Act, 2000, (Act 21 of 2000): For the purposes of this section "children" means a person who has not
completed the age of 18 years.
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 7TH RCL MOOT COURT COMPETITION,2017
Z. Similar contentions are made u/s 13(c) of POCSO Act, 2012, 52 where, using a child in any form of

media for the purposes of sexual gratification, which includes the indecent or obscene

representation of a child, shall be guilty of the offence of using a child for pornographic purposes.

AA. In the light of the above contentions made, accused is liable for child pornography under §14 of the

said Act.

BB. Also, as per §4 of IRWPA,53 which provides for punishment to any person who sells, let to hire,

distributes, circulates or sends by post which contains ‘indecent representation of women’54. The

morphed photograph of the victim was uploaded; it when viewed by others suggested that she was

soliciting for sex work and so, the accused shall be held liable u/s 6 of IRWPA Act.

CC. As held in Aveek Sarkar and Anr. v. State and Anr55 picture has to be viewed in the background in

which it was shown, and the message it has to convey to the public and the world at large.

DD. When viewed in the light of above provision, it can be said that the photograph uploaded by

accused cannot be said to be objectionable so as to initiate proceedings under §67 of IT read with

§14 of POCSO and §6 of IRWPA.

[2.4] THAT THE ACCUSED INVADED THE PRIVACY OF THE VICTIM

EE.§66E of IT Act is an attempt to check voyeurism and prohibits intentional capture, publication or

transmission of image of private person without his or her consent under circumstances violating

privacy56. ‘Under circumstances violating privacy’ means circumstance in which a person can have

a reasonable expectation that any part of his or her private area would not be visible to the public

regardless of whether in a public or private place.

FF. In Katz v. United State57, the SC upheld that wherever the man may be he is untitled to know that he

will remain free from unreasonable searches and seizures.

52
(Act 32 of 2012).
53
(Act 60 of 1986).
54
§2 of IRW Act, 1986: the depiction in any manner of the figure of a woman; her form or body or any part thereof in
such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt
or injure the public morality or morals.
55
Supra note 35.
56
Anupam Kishore Sinha, Efficacy of Information Technology (Amendment) Act, 2008 vis-À-vis Cyber Crimes3 MLJ
Crl 59 (2009).
57
Katz v. United State, 389 US 347: L Ed 2d 576 (1987)
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 7TH RCL MOOT COURT COMPETITION,2017
GG. So far privacy meant privacy of personal details and maintaining secrecy, having the option to live

according to one’s own wishes. The commonly understood term, namely, ‘breach of privacy’ entails

the dispelling of personal information to others, without the knowledge or consent of the person

concerned.58

HH. It is humbly submitted before the court that the accused has invaded the privacy of the victim by

publishing and distributing the image of victim’s private area on social media or on internet, in

general, without her consent, which she is sure has never been clicked. 59 It was just her face in the

photograph and her name, address and contact number but the body was not hers.

II. The main ingredients of this section are that when a person intentionally or knowingly captures 60,

publishes61 or transmits62 the image of a private area 63 of any person without his or her consent,

violating the privacy of that person which has clearly happened in this case.

JJ. It is submitted before the court that the accused has committed an offence under and § 66E of IT.

ISSUE-3

WHETHER THE ACCUSED USED CRIMINAL FORCE TO VOLUNTARILY CAUSE

HURT TO THE VICTIM, BY WRONGFULLY RESTRAINING HER?

It is humbly submitted that the accused had stalked the victim online and followed her to the Blue

Ice, with intention to threaten her and exercise criminal force [3.1] which caused her “hurt” [3.2]

58
TALAK FATIMA, CYBER CRIMES 191(ed. Abhinandan Malik, 1st ed. 2011).
59
Moot Proposition, Pg 3.
60
§66E(b) IT Act, 2000: "capture”, with respect to an image, means to videotape, photograph, film or record by any
means;
61
§66E(d) IT Act, 2000: “publishes” means reproduction in the printed or electronic form and making it available for
public;
62
§66E(a) IT Act, 2000: “transmit” means to electronically send a visual image with the intent that it be viewed by a
person or persons;
63
§66E(c) IT Act, 2000: “private area” means the naked or undergarment clad genitals, pubic area, buttocks or female
breast;
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 7TH RCL MOOT COURT COMPETITION,2017
and she was also wrongfully restrained in washroom by the accused [3.3].Therefore, accused should

be held liable u/s 350, 323 &341 of IPC.

[3.1]CRIMINAL FORCE IS USED

A. It is humbly submitted before the Hon’ble court on behalf of the prosecutor that for the purpose of

proving an offence under §. 350, we need to prove that there was not only use of force to any

person without the person’s consent (actus reus)but also that the force must have been used either

to commit an offence or with the intention to cause, or knowing it to be likely that he will cause,

injury, fear or annoyance to the person to whom it is used (mens rea).64

[3.1.1]. THAT FORCE IS USED (ACTUS REUS)

B. As defined in IPC, §.349 contemplates force used by human beings on other human beings 65 and

also the presence of the person using force and of the person to whom the force is used.66

‘Force’ becomes ‘criminal’ only when force is applied without consent. Placing reliance on a case67

wherein the judge gave his decision in the light of illustration (d) to §.350 of IPC, where, A

intentionally pushes against Z in the street and another case, wherein the accused caused jerk to any

body part of the victim (hands) and further the natural effect of the act (snatching away books),

affected the sense of feeling of that body part.68 In the present case, since the time victim felt

accused’s hand until she was pinned to the wall by her throat, he used force on the body of the

victim, which alarmed her body cessed her motion. Despite clear indication of non revitalisation of

their relationship with the accused, he held her back, which brought victim’s body part (neck) in

contact with his hands. Hence, force is applied.

[3.1.2] FORCE IS APPLIED INTENTIONALLY (MENS REA)

C. As per § 350, if criminal force is being applied, it must be done with intention to cause, or knowing

that it is likely to cause injury, fear or annoyance to the person to whom it is used.

64
S.P Malik v. State of Orissa Anr., 1982 Cr LJ 19(Pat).
65
Sadashiv Mondal v. Emperor, AIR 1915 Cal 131; Balaram Sahu v Chandra Sahu AIR 1921 Pat 391.
66
Bihari Lal and another v. The Crown, 1934 SCC OnLine Lah 84.
67
A.K Borah v. Raja Ram Mallah,Criminal Petition No. 227 of 2008.
68
Chandrika Sao v. State of Bihar, AIR 1967 SC 170.
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 7TH RCL MOOT COURT COMPETITION,2017
In the given case, the intention of accused for being there can be gathered from his action in the

washroom69. The sole purpose of the act was to threaten and to dreadfully scare her to re-connect

their relation which he succeeded in when her fragile state of mind began to apprehend the presence

of the accused everywhere, and she saw glimpses of Sumant wherever she went and soon began

jumping at shadows again, losing weight, and soon she was looking as pale and frightened as ever.

Hence, the accused has applied criminal force and so is liable under § 350.

[3.2] THAT ESSENTIALS OF S. 323 OF IPC ARE FULFILLED.

D. As per § 323 of IPC prescribes punishments for situation where hurt is caused voluntarily.

[3.2.1]THAT HURT IS CAUSED (ACTUS REUS)

E. § 319 defines hurt as causing bodily pain, disease or infirmity to any person.

F. Even though the fact of the case do not mention any visible injury to the victim but the victim can

still be considered hurt under its ambit if it causes any bodily pain. ‘Bodily pain’ means that the

pain must be physical as opposed to any medical pain. So, mental or emotional pain would not be

considered as ‘Hurt’. However, in order to come within this section, it is not necessary that any

visible injury should be caused to the victim. 70. The bodily pain which is generated when a person is

slapped71 or pushed on the chest72 or a woman is dragged by her hair 73

would constitute ‘hurt’.74

Similarly, in the present case, when accused causes the victim to be pinned to the wall by her throat,

he is liable for hurt u/s323.

[3.2.2]THAT MENS REA IS PRESENT

G. For the purpose of Section 321 read with S.39, intention to cause hurt or knowledge that the act is

likely to cause hurt is most decisive factor in deciding whether a person can be held guilty of

voluntarily causing hurt. The extent of injury that is actually caused is not relevant, but what is the

intention with which the hurt is caused is relevant.75

69
Moot Proposition, Pg 2.
70
Ranganayakamma v. State of Andhra Pradesh, 1967 CrLJ 849 : AIR 1967 AP 208.
71
Supra, note 68.
72
Pichapillai v State, 1996 Cr LJ 3634 (Mad.).
73
Supra, note 71.
74
Supra note 67.
75
PSA PILLAI, CRIMINAL LAW 641(12th ed. 2016).
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H. As proved in first issue, the accused had found victim in the Blue Ice where he traced her through

her ‘check in’ on social media (cyber stalking). The accused was furious and full of rage due to his

dissonance with broken relation, intentionally held her by her throat to hurt her; to instil fear in her.

[3.3] THAT THE ACCUSED WRONGFULLY RESTRAINED VICTIM IN WASHROOM

I. Wrongful restraint means keeping a person out of a place where he wishes to be and has a right to

be. the slightest unlawful obstruction to the liberty of the subject to go, when and where he likes to

go, unless he does so in lawful manner, cannot be justified, and is punishable under this

Section.76§339 read with §. 39 require voluntary obstruction so as to prevent the person from

proceeding in any direction in which he has a right to proceed. There must be some physical

coercion or threat of physical injury or in other words mere exercise of moral influence does not

amount to restrain.77

J. Obstruction within the meaning of this section must be physical obstruction although it may be

caused by physical force, as well as by being a menace and using threats.78Placing reliance on

previous judgements, for what happened with victim in the washroom 79, accused can be held liable

u/s 341.80

ISSUE 4

WHETHER OR NOT ACCUSED IS LIABLE FOR OUTRAGING VICTIM’S MODESTY

AT BLUE ICE AND INSULTING HER MODESTY BY UPLOADING HER MORPHED

PHOTOGRAPH ?

76
Saminada Pillai, (1882) 1 Weir 339.
77
R A NELSON’S, INDIAN PENAL CODE 3490 (10th ed. 2008)- Acting Government Pleaders v. Venkatachala Mudali,
1Weir 341.
78
Nripendra Nath Basu v. Kisen Bahadur, (1952) ILR 1 Cal 251.
79
Moot Proposition, Pg 2.
80
Rajesh Vishwakarma v. State Of Jharkhand,2011 CrLJ 2753 (Jha).
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It is humbly submitted before the Hon’ble court that the accused had used criminal force to accused

with intent to outrage [4.1] as well as insult her modesty. [4.2] The prosecution submits to this

effect under following heads:

[4.1] CRIMINAL FORCE HAS BEEN USED WITH INTENT TO OUTRAGE MODESTY

OF THE VICTIM

A. It is humbly submitted that it is essential as per §.354, that there must be use of assault or criminal

force to any woman, intending thereby to outrage or that it is likely to outrage her modesty.

B. Though what constitutes modesty is nowhere defined, but it is quite often referred by the court that

the essence of a women’s modesty is her sex. 'Modesty' is given as "womanly propriety of

behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense

of shame proceeding from instinctive aversion to impure or coarse suggestions". 81. The culpable

intention of the accused is the crux of the matter 82. In the light of precedent83, the accused must be

held liable under §354 for dragging the victim across the floor and pinning her to the wall.84

[4.1.1]TEST OF THE OUTRAGE OF MODESTY

C. In State of Punjab v. Major Singh 85court observed that modesty is the quality of being modest

which as regards to woman, in decent manner and conduct, scrupulously chaste, though the word

“modesty” has not been defined in the code. The ultimate test for ascertaining whether the modesty

of a woman has been outraged, as laid down on, is that the action of the offender should be such

that it may be perceived as one which is capable of shocking the sense of decency of a woman. 86 

When the above test is applied in present case, alleged act of respondent would amount to

“outraging her modesty “for it was not only an affront to the normal sense of feminine decency but

also an affront to the dignity of the lady.

81
Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.
82
State Of Punjab v. Major Singh, 1967 AIR 63.
83
Keshab Padhan v. State of Orissa,1976 Cuttack LR (Crl) 236.
84
Moot Proposition, Pg 2.
85
Supra note 82.
86
Aman Singh v. State of Haryana, 2005 (2) MPHT 32; Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC
1677; Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.
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D. If a man carries a bad reputation for habitually holding hands of the female in the village to outrage

her modesty,87 or slaps on her posterior88, it would amount to an offence under this section. In the

present case possessive nature of accused and constant harassment to the victim, when she lived

with him, shall vouch for his habitual dominance which he believed he had over her, which in no

way can be ignore while drawing his guilty mind for this act.89

[4.1.2] CULPABLE INTENTION AS AN INGREDIENT

E. It is humbly contended that mere knowledge, that the modesty of a women is likely to be outraged

is sufficient.90It is undoubtedly correct that if intention or knowledge is one of the ingredients of any

offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally

true that those ingredients being state of mind may not be proved by direct evidence and may have

to be inferred from the attending circumstances of a given case.

F. The intention of accused for being there can be gathered from his action,as firstly his presence in

Blue ice which petrified her as there was no reasonable way by which he can trace her location and,

secondly in the washroom where he dragged her across the floor, spun around and pinned to the

wall by her throat, and explicitly threatened her to instigate fear, which he succeeded in doing,when

she began to apprehend the presence of the accused everywhere, and she saw glimpses of Sumant

wherever she went and soon began jumping at shadows again, losing weight, and soon she was

looking as pale and frightened as ever.91

[4.2] ACT OF ACCUSED INSULTED THE MODESTY OF VICTIM

G. It is humbly submitted that, for §.509 it is essential that the accused must utter any word, make any

sound or gesture, or exhibit any object, intending that such word or sound shall be heard, or that

such gesture or object shall be seen, by such woman, or intrudes upon her privacy with the intention

to insult her modesty.

87
Bisheshwar Murmu v State Of Bihar 2004 CriLJ 326, 2003 (4) JCR 468 Jhr
88
Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr., 1996 AIR 309, 1995 SCC (6) 194
89
Moot Proposition pg 1,2.
90
Aman Kumar v. State of Haryana, (2004) 4 SCC 379.
91
Moot Proposition pg. 2.
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[4.2.1] THAT ACTUS REUS IS PRESENT

H. The acts which are done intending to insult the modesty of a woman which may not necessarily

involve physical advances but may include posting of obscene, defamatory and annoying message

about through emails92etc., are also brought under the sweep of this section. 93 The word “exhibit"

does ordinarily mean "display or cause to be seen" by the woman. 94 For the purpose of exhibiting it is

not necessary that the offender himself should personally exhibit the object, in fact, he may employ

an agent such as post office95, in this case internet, for this purpose. When an act is done to a woman,

which is clearly suggestive of sex, according to common notions of mankind, that act must fall within

this section.96 Not only this, the whole incident adversely affected the mental being of the victim, she

suffered severe depression and was hospitalised for 15 days.

[4.2.2] THAT MENS REA IS PRESENT

I. The obsessive nature of accused towards the victim and his dissonance with reality about cessation

of his relationship with the girl, provides no proof that morphed photographs were uploaded,

accidentally or by mistake or it was a slip97 and so must be held liable for §.509.

ISSUE 5

WHETHER ACCUSED IS LIABLE FOR DEFAMATION AND FORGERY TO HARM

REPUTATION BY UPLOADING MORPHED PHOTOGRAPH THROUGH A FAKE

FACEBOOK ACCOUNT?

92
ANIRUDH RASTOGI, supra note 29, at 130 (1st ed. 2014)- (1st ed. 2014)-State of Tamil Nadu v. Suhas Katti, C.C.no.
4680/2004.
93
RATANLAL RANCHHODDAS & DHIRAJLAL KESHAWLAL THAKORE, supra note 6, at 1233.
94
Emperor v. Tarak Das Gupta, AIR 1926 Bom 159.
95
Id.
96
Supra note 82.
97
Supra note 88.
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It is humbly submitted to the honourable court that the morphed photo uploaded by the accused is

defamatory [5.1] and the morphed photograph uploaded by the accused for the same through a fake

account[5.3], further constitutes the offence of forgery for the purpose of harming reputation. [5.2]

[5.1] THAT THE PHOTO UPLOADED IS DEFAMATORY

A. It is humbly submitted to the court that it is essential as per §.499 of IPC, that any imputation

concerning victim must be made or published in form of words either spoken or intended to be read,

or by signs or by visible representations (actus reus) with the intention to harm, or knowing or

having reason to believe that such imputation will harm, the reputation of such person (mens rea).

[5.1.1] THAT IMPUTATION IS MADE & PUBLISHED IN FORM OF MORPHED

PHOTOGRAPH (ACTUS REUS)

B. An imputation ordinarily implies an accusation or something more than an expression of a

suspicion. The word ‘makes’ connotes to make public or to make known to public in general.98

C. Publication of defamatory material involves making a defamatory statement and communicating it

to a person other than the person concerning whom it is written, is said to be published. 99 So, the

defamatory matter must be published to some person other than the person about whom it is

addressed.100Communicating defamatory matter only to the person defamed is not published. 101 In

cases where a notice containing imputations on the character of the recipient, 102 unless

communicated to any third party, was not held to be ‘made’ or ‘published’, on the other hand,

defamatory matter written on post card103 or printed paper distributed or broadcasted, 104 with the

intention that it should be read by others,105 constitutes publication.

D. It is immaterial whether the imputation is conveyed obliquely or indirectly, or by way of question,

conjecture, or exclamation, or by irony106 i.e. the mode through which it is conveyed is immaterial.
98
Amar Singh v. KS Badalia, (1965) 2 Cr LJ 693(Pat).
99
Sukdeo Vithal Pansare v. Prabhakar Sukdeo Pansare, (1974) Cr LJ 1435(Bom).
100
Varnakote Illath v. Kotalmmana Keshavan, (1900) 1 Weir 579.
101
Sadashiv Atmaram, (1893) 18 Bom 205; B.P. Bhaskar v. B.P. Shiva, 1993 CR LJ 2685 (Mad).
102
Taki Husain, (1884) 7 All 205 (FB).
103
Sankara, (1883) 6 Mad 381.
104
Thiagaraya v. Krishnasami, (1892) 15 Mad 214.
105
Greene v. Delanney, (1870) 14 WR (Cr) 27; Abdul Hakim v. Tej Chandar, (1881) 3 All 815.
106
RATANLAL RANCHHODDAS & DHIRAJLAL KESHAWLAL THAKORE, supra note 6, at 1202.
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E. The provision provides for “words either spoken or intended to be read, or by signs or by visible

representations” have a much wider scope to include a morphed photograph made and published by

the accused over internet about which victim got to know through one of her friends who has

already seen it over internet. 107

[5.1.2] THAT INTENTION WAS TO HARM VICTIM’S REPUTATION (MENS REA)

F. Intention of harming the reputation of a person is sine qua non of the offence of defamation.108 It is

sufficient to prove that harm to the reputation of the complainant was intended. 109 In judging

whether the accused had the requisite intention or knowledge, the circumstances under which and

the main objective with which the defamatory statements were made and the background of the

dispute between the parties should all be considered.110

G. The Indian courts have previously defined reputation to be good name, the credit, honour or

character which is derived from a favourable public opinion or esteem, and character by report, or

in other words it is attributes which others believe one to possess.111

The accused doctored victim’s photo, showing her as scantily clad, and uploaded it over internet

along with her phone number and address.112 Although it is not victim’s body but her face suggests

that nude photographs to be her113, which has brought out mens rea to defame the victim to malign

her impeccable reputation in the eyes of those people who hold her in high regard.

[5.2] THAT FORGERY IS DONE FOR PURPOSE OF HARMING REPUTATION

107
Moot Proposition, Pg 3.
108
Jacob Mathew & Anr. v. Manikantan alias G. Mani & Anr., 2012 SCC OnLine Ker 31699 : (2012) 3 KLJ 567;
Jainaram Singh v. Emperor, AIR 1941 Pat 9; Pat Sharpe v. Dwinjendra Nath Bose, (1964) 1 Cr LJ 367; Krishna
Kanta v. Geeta Roy, 1982 Ch Cr Cas 54 .
109
Jagannath Misra v. Ram Chandra Deo, AIR 1945 Pat 450.
110
Chaitan Charan Das v. Raghunath Singh, 1959 CrLJ 1006.
111
Smt. Kiran Bedi v. The Committee of Inquiry & Anr., [(1989) 1 SCC 494]; Nilgiris Bar Association v. T.K.
Mahalingam & Anr., [AIR 1998 SC 398]; Kishore Samrite v. State of U.P. & Ors. 
112
Moot Proposition, Pg 3.
113
Id.
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H. Any person, who forges a document114 or an electronic record115 for the purpose of harming the

reputation of another, commits an offence u/s 469. In order to prove §.469, there must be some

document or electronic record which is forged (actus reus) in order to harm the reputation of

another party (mens rea).

[5.2.1] THAT AN ELECTRONIC RECORD IS FORGED

I. ‘Forgery’ as mentioned in §.463, means making of a false document or electronic record or part of

it done with the intention such as mentioned in the section. 116 The image uploaded by the accused

falls within the ambit of electronic record.117

J. As per the first condition of §.464, a person is said to make a false electronic record when he

‘dishonestly’118 or ‘fraudulently’119 makes or transmits any electronic record or any part of it,

intending it to be believed that such electronic record was made, signed, sealed, executed,

transmitted or affixed by or by the authority of a person by whom or by whose authority, the person

falsifying electronic record knows that it was not made, signed, sealed, executed or affixed. 120

K. Making a document o electronic record without the authority of another, would amount to forgery

only when it is shown that it was made dishonestly and fraudulently.121

L. Making a false electronic record so as to cause damage or injury to any person, would constitute

forgery as the nude photograph was morphed by the accused causing it to be believed that it was her

in photograph and, it inter alia was made with her authority.

[5.2.2] THAT REPUTATION OF VICTIM IS HARMED

M.It is contended that the forged electronic record (photograph) is uploaded by the accused as proved

in the second issue with the help of circumstantial evidence, which is nothing else but actus reus.

114
§29, IPC, 1860.
115
§ 29 A , IPC, 1860.
116
Sushil Suri v. C.B.I., (2011) 5 SCC 708; State of Uttar Pradesh v. Ranjit Singh, AIR 1999 SC 1201; Devendra v.
State of Uttar Pradesh, (2009) 7 SCC 495.
117
§ 2 (t) IT Act, 2000 .
118
§24 IPC, 1860
119
§ 25 IPC, 1860.
120
Mir Nagvi Askari v. C.B.I., AIR 2010 SC 528; (2009) 15 SCC 643.
121
Supra, note 76, at page 867.
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For the purpose of mens rea we need to prove that the forged photograph was uploaded for the

purpose of harming the reputation.

N. Harm has to be the reputation itself of the person defamed. 122 The photograph is suggestive of the

victim as a soliciting sex worker123 thereby, affecting her dignity in the society. On the basis of an

instance, where posting of obscene, defamatory and annoying message about a divorcee woman  in

the yahoo message group got the accused convicted under §§ 469, 509 IPC and 67 of IT Act

2000124, applying the same principle, in the present case also the accused must be held guilty.

[5.3] THAT THE ACCUSED HAS COMMITED THE OFFENCE OF IDENTITY THEFT

O. As per § 66C of IT Act, ‘identity theft’ means dishonest125 or fraudulent126 use of a unique

identification feature of a person, which includes identifiers like an electronic signature, a

photograph or biometric identifier.

P. In the present case, criminal identity theft has been committed which refers to the use of the identity

for the commission of other criminal activities.127 Personally identifying information (PII) in digital

form is unique to everyone and when a different person makes use of the same dishonestly or

fraudulently, it is covered under the present section and is hence punishable.128 The identity theft

occurs when one person obtains data or document belonging to another person and then passes

himself off as that another person.129 ‘Identity theft ‘is fraud where the identity of an existing person

is used as a target or principal tool without that person’s consent.130 Like, taking over the identity of

a person who is missing for many years.131

122
Veeda Menezes v.Yusuf Khan Hazi Ibrahim Khan, 1966 CrLJ 1489.
123
Moot Proposition, Pg 3.
124
Supra note 93.
125
§ 24 IPC,1860.
126
§ 25 IPC,1860.
127
ANIRUDH RASTOGI, supra note 29, at 108.
128
Supra note 56.
129
David Kirk, Identifying Identity Theft, Journal of Criminal Law, 78 J. Crim. L. (2014)
http://www.heinonline.org.spicework.ddn.upes.ac.in:2048/HOL/Page?
handle=hein.journals/jcriml78&div=70&start_page=448&collection=journals&set_as_cursor=1&men_tab=srchresults
(last visited Feb 6,2017).
130
Id
131
Harcharan Lal @ Harishankar v.Union of India, 2016 SCC OnLine All 543.
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Q. A person gains access to another person’s online account either by stealing the third party’s

password or creating a completely fake profile and subsequently impersonating that person.132 The

perpetrator creates a fictitious profile and uses that identity for online communication.133

R. In the given case, the accused had made a facebook profile/identity not in his own name but in the

name of some other person, for the purpose of stalking her online and defaming the victim by

uploading her morphed photograph.134

S. Hence, he must be held liable under § 66C of IT Act.

PRAYER

Therefore in the light of the facts stated, arguments advanced and authorities cited, it is humbly

prayed on behalf of the appellant, that this Hon’ble Court may be pleased to adjudicate and

declare that:

132
Draker v Schreiber, 271 S.W.3d 318,320-321 .illustrating case where two students created a fake website profile of
their principal on MySpace.com)
133
Bradley Kay, Extending tort liability to creators of fake profiles on social networking websites,10 CHI-KENT J.
INTELL PROP 1,3(2010).
134
Moot Proposition pg 3.
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 The accused be convicted under§§. 323,341,350,354,354-D, 469,500& 509 of IPC;

§§66C, 66E, 67, 67-B of IT Act; §14 of POCSO & §6 OF IRWPA and maximum

imprisonment or fine or both, be awarded to the accused.

 An order be passed to pay ₹2,00,000 to victim under Madhya Pradesh Crime Victim

Compensation Scheme,2015.

And pass any other appropriate order as the Hon’ble Court may deem fit in the interest of equity,

justice and good conscience.

And for this act of Kindness, the Appellant as in duty bound, shall forever pray.

Respectfully Submitted

Sd/-

Counsel for the prosecution

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