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II.

THAT THE OFFENCE OF VOYEURISM HAS NOT BEEN COMMITTED BY

VIKRAM

The appellants humbly submit before this Hon’ble court that the offence of voyeurism has not
been committed by Vikram. A ‘voyeur’ is generally defined as “a person who derives sexual
gratification from the covert observation of others as they undress or engage in sexual
activities.” This includes observing, capturing or distributing images of another person without
their consent or knowledge. With advancement in technology, cameras etc. may be placed in
public places like changing rooms, where individuals generally expect a reasonable degree of
privacy.

Voyeurism blatantly defies this reasonable expectation of individuals infringing privacy and
personal dignity.1 Voyeurism is the sexual interest in or practice of spying on people engaged
in intimate behaviours such as undressing, sexual activity, or other actions usually considered
to be of private nature.2 The offence of voyeurism has been defined in Section 354 of the Penal
Code.3

Voyeurism is an offence when a man has seen or captured the image of a female engaging in a
private act where under circumstances the female does not want to be observed.4 In the present
facts, Vikram has procured a video clip of private acts of Aditi and Bhaskar and starts
blackmailing Aditi for helping him.5 The appellants humbly submit before this Court that
Vikram has not committed the offence of voyeurism.

II. I THAT VIKRAM HAS NOT CAPTURED, PUBLISHED OR TRANSMITTED THE


VIDEO

1
Divij Joshi, India’s Criminal Law Amendment To Include Cyber Stalking, Harassment And Voyeurism – CIS
India, available at https://www.medianama.com/2013/04/223-criminal-law-amendment-to-include-cyber-
stalking-harassment-and-voyeurism-cis-india/.
2
M. Hirschfeld, Sexual Anomalies and Perversions: Physical and Psychological Development, Diagnosis and
Treatment (Encyclopaedic Press, London 1966).
3
Indian Penal Code, Section 354.
4
Indian Penal Code, Section 354C.
5
Moot Proposition 6.
The appellants humbly submit that Vikram has the video of the private moments of Aditi and
Bhaskar but he has not published the video anywhere yet. It is being contended that the video
had contents which can be classified as a “private act”. A “private act” for the purposes of
Section 3546 is an act where a woman is doing some activity in private like feeding a baby,
taking a bath, urinating, engaging in sexual activities, etc.7 According to the Black’s Law
Dictionary8, private acts are those which relate to particular persons which operate only upon
specified individuals or their private concerns. The video contained private and intimate
moments of Aditi and Bhaskar but he has not observed them while doing so.

Vikram has not committed the offence of voyeurism and hence is not liable to the punishment
specified under the Act.9 Section 354C is deeply influenced and based on Section 1801 of
“Video Voyeurism Prevent Act of 2004” a Federal Law of USA dealing with the felonious act
of video voyeurism.10 Aditi and Bhaskar have the right to privacy under Article 21 of the Indian
Constitution.11

In a recent judgment12, right to privacy has been declared as a fundamental right by the apex
court. The Indian Supreme Court has upheld the right to privacy of the person as the right to
be left alone, and has read it into Article 21 of the Constitution which guarantees the right to
life, which it did in the famed Auto Shankar case.13 The punishment for violation of privacy
has been specified in Section 66E of the IT Act, 2000.14 It has not been mentioned anywhere
in the moot proposition that Vikram was the one who had captured the private moments.
Moreover, it has also not been stated anywhere in the moot problem that Vikram had watched
the video himself.

The law reads as a person who captures the image of a private area of a person intentionally
without their consent shall be punished with imprisonment or fine.15 In a case16 before the Delhi

6
Indian Penal Code, Section 354.
7
Shonee Kapoor, IPC 354C | Voyeurism | Punishment for Voyeurism, available at
https://www.shoneekapoor.com/ipc-354c-voyeurism/.
8
Private Act, Black’s Law Dictionary, p. 26.
9
Indian Penal Code
10
A.K. Das, Law Relating to Electronic voyeurism in India: Eyes behind the mirror, International Journal of
Law.
11
Constitution of India, Article 21.
12
Justice K S Puttaswamy & Anr. v. Union of India & Ors., W.P. (C) No. 494 of 2012.
13
R. Rajagopal v. State of T.N., 1995 AIR 264.
14
The Information and Technology Act, 2000, Section 66E.
15
Section 66E: Punishment for violation of privacy, available at https://www.itlaw.in/section-66e-punishment-
for-violation-of-privacy/.
16
State v. Shailesh, FIR No. 244/13 Unique I.D. No. 02404R0032112014.
district court, the woman was in the washroom where she thought she would not be visible to
anybody, a man was found peeping inside the washroom. He was held liable by the Delhi
district court. In a case17 before the High Court of Hyderabad, the accused were not held liable
of voyeurism as they did not publish or transmit the information.

Vikram had the clip of the private moments of Aditi and Bhaskar but ultimately, he was not
the one who had captured the image or transmitted it anywhere.

III. THAT THE DEATH PENALTY IS NOT PROPER AND JUSTIFIED

It is humbly submitted before the court that punishment of death penalty is not proper in case
of Bhaskar as the punishment of death penalty is only to be given in the Cases of Rarest of the
Rare and in this case Bhaskar committed the offence of culpable homicide amounting to murder
which cannot be justified by giving death penalty because if we do the plain reading of the
series of cases in which death penalty is given we will observe that all the cases were of murder
and the acts committed in those cases were of high degree of intention to cause murder which
can be justified.
In the case of Bachan Singh v. State of Punjab18 Supreme Court (SC) held that capital
punishment must be sentenced in brutal murder case or in most heinous crimes where doctrine
of rarest of rare case apply, but in a country, which use to advocate human rights how can it
award capital punishment as it is violation of basic human rights. According to moot problem
it appears very clearly that the act committed by Bhaskar would not under any circumstances
be covered under heinous crimes because the degree of intention is not that much so that it can
be called murder.
In the case of Machhi Singh v. State of Punjab19 the test of rarest of rare case is explained by
the following two principles:
1. Is there something uncommon about the crime which renders sentence of life
imprisonment inadequate and call for a death sentence?
2. Are the circumstances of the crime such that there is no alternative but to impose death
sentence?”

17
K. Chinna Koteswara Rao v. The State of A.P. & Ors., Criminal Petition No. 13944 of 2016.
18
Bachan Singh v State of Punjab, 1980 2 SCC 684.
19
Macchi Singh v State of Punjab, 1983 3 SCC 470.
In this case the facts were of “extreme brutality” which is of extreme significance regarding
giving death penalty. In the given moot problem, there is no stance of extreme brutality so
death penalty is not proper for this case.
In the case of State v. Nalini20 the supreme court observed that both crime and criminal and
also the following circumstances should be considered for the Rarest of the rare cases;
1. If the accused is young or old, the death sentence should be avoided.
2. The criminal acts done should constitute a continuing threat to the society.
3. That the accused acted under the duress or domination of another person.
It appears clearly from the facts that Bhaskar and Aditi both were the student of prestigious
college and were young so the above principle of the “rarest of the rare case” is not applicable.
And also, the act committed by Bhaskar cannot be designated as the continuing threat for the
society so it defies the principle of “Rarest of the rare case”.
In the Lehna case21 the court held that death penalty can be awarded in “Rarest of the rare
cases” when collective conscience of the communities so shocked that it will expect the holders
of the judicial power center to inflict death penalty irrespective of their personal opinion
regarding desirability or otherwise of retaining the death penalty. So, the acts committed by
Bhaskar cannot be said that it shocked the conscience of the community, so the acts of Bhaskar
cannot attract death penalty.
In Maenka Gandhi v. UOI22, SC states that awarding death penalty of taking away of life
must be just fair and reasonable. Every accused has right to be fair trial and hence depend on
Natural and Procedural law states as:
1. Death penalty should be awarded only in special case
2. Death Penalty shall be treated as exceptional punishment which will only be imposed
on
special reason.
The acts committed by Bhaskar cannot be under any circumstances be said to be a special case
to constitute Death penalty as it is the simple case of culpable homicide amounting to murder.
So as this case is not special and death penalty should be given in exceptional circumstances
the act of Bhaskar is not liable for death penalty anyway.

20
State v Nalini, 1999 5 SCC 253.
21
Lehna v State of Haryana, 2002 3 SCC 76.
22
Maneka Gandhi v Union of India, AIR 1978 SC 567.