APPELLANT SIDES

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the appellant in the case concerning MAHILA
DAKSHATA SAMITHI VERSUS UNION OF INDIA & ANR. The counsel for the appellants
has three contentions to submit before this Hon’ble Court. Hope the lordship is well versed with
the facts of the case. With your lordships’ kind permission may the counsel move on to her
contentions.

The first issue the counsel would like to focus on is the maintainability of writ under article 32 of
the constitution. It is contended that the present petition is maintainable under Article 32 of the
Constitution there has been violation of Fundamental Rights. The writ jurisdiction of Hon’ble
Supreme Court can be invoked under Article 32 of the constitution for the violation of
fundamental rights guaranteed under part – III of the constitution. Article 32 provides right to
move the Supreme Court , acting in a bona fide manner, in case of violation of fundamental
right, for the benefit of the society at large. Thus in the present case, by virtue of power
conferred under Article 32 of the constitution Supreme Court has jurisdiction to entertain the
present writ . This article of the constitution as it is considered ‘the protector and guarantor of
Fundamental Rights’.

The petition has been filed in public interest and therefore maintainable as Public Interest
Litigation: To invoke the writ jurisdiction of the SC is not necessary that the fundamental right
must have been actually infringed- a threat to the same would be sufficient. Thus the petitioned
filed before this apex court is maintainable. Right to life under Article 21 includes the right to
live with human dignity. Women also have the right to life and liberty. Their honour and dignity
cannot be touched or violated. They also have the right to lead an honourable and peaceful life.
In Bodhisattawa Gautham v. Subhira Chakroborthy, it was held that rape is a crime not only
against the person, but also against the entire society. It destroys the entire psychology of a
woman and pushes her into deep emotional crisis. It is crime again basic human rights and it
violates right to life.

Alternative Remedy Not A Bar: Where there is well-founded allegation that fundamental right
has been infringed alternative remedy is no bar for entertaining writ petition and granting relief

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as held in State of Bombay V. United motors Ltd. AIR 1953 SC 252. The mere existence of an
adequate alternative legal remedy cannot be per se be a good and sufficient ground for throwing
out a petition under Art. 32 if the existence of a fundamental right and a breach, actual or
threatened, of such right and is alleged is prima facie established on the petition.

Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right
to life right to live with human dignity. Right to life, would, therefore, include all those aspects
of life that go on to make life meaningful, complete and worth living. Hence, in this case the writ
is maintainable as the girls have been raped and their right to life have been violated here. Hence
this writ is maintainable.

With these humble submissions, the counsel would like to call Mr__ , to deal with the other
contentions.

Much obliged your lordship.

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2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
of whether the respondent is punishable for rape or not. It is most humbly submitted before this
Hon’ble Supreme Court of India that respondents are punishable for rape as he had forcible
sexual intercourse with the petitioners. The accused David along with his friend Raja, followed
them secretly, met at a lake in Srinagar and lured them to get into his car to go around certain
places and stopped his car at a wayside hotel. They were taken to a desolate spot in a park nearby
and he and his friend raped the two girls and left them there. The intercourse had been forceful,
and as a consequence the girls also went to file a complaint in the police station. There has been
consent. In Saleha Khatoon vs. State of Bihar Saleha Khatoon vs. State of Bihar 1989 CRILJ 202
, it was held that:- “Consent always means free will or voluntary act.”

In Vijayan Pillai vs. State of Kerala it was held that:- “Every consent to act involves submission
but it by no means follows that a mere submission involves consent.”
Here in this case, no doubt that the petitioner had accompanied with the respondent, his friend
and the victims were travelling in the same car but it doesn’t mean that she consented him for
having sexual intercourse with her. No doubt she submitted herself by entering the car but that
was a mere submission of visiting or roaming around Srinagar and that every submission is not
consent. Hence, the respondent is punishable for rape under section 376 of IPC, 1860.

Hence in this case there has been no consent, there has been rape because the women have
clearly stated that it has been rape and also a court will take victims’ word in rape cases as held
in Nipun Saxena v. Union of India. Hence, in this case the accused has committed the offence of
rape. In fact the case is of gang-rape, because both the accused raped both the women. In this
case both the accused had raped both women, which amounts to gang rape too and hence, this
Court is requested to convict them under Section 376-D wherein the accused shall be punished
with rigorous imprisonment for a term which shall not be less than twenty years, but which may
extend to life which shall mean imprisonment for the remainder of that person’s natural life, and
with fine.

Much obliged your lordship.

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3RD SPEAKER- Your lordship, the counsel is here to deal with the contentions that whether the
act of the accused was in furtherance of common intention defined under section 34 of IPC.
It is contended that the accused had worked in furtherance of the common intention to commit
the offences against both women. In order to attain his common final object of raping his
employees as the long lasting animosity.

To attract the application of section 34 the following three conditions must exist a Criminal act
must be done by several persons; There must be common intention of all to commit that criminal
act and there must be participation of all in the commission of offence in furtherance of that
common intention.

The intention to cause damage or injury to either public or any person has to be there. Intention
connotes a conscious state in which mental faculties are roused into activity and summoned into
action for the deliberate purpose of being directed towards a particular and specified act.
Intention has been defined as the fixed direction of the mind to a particular object, or a
termination to act in a particular manner. So, the intention of the person can be gathered from the
action of the person as held in Kesar Singh v. State of Haryana, (2008) 15 SCC 753.
Hence, in this case the act of the accused was in furtherance of common intention defined under
section 34 of IPC. The accused has been eyeing the victim and her friend since so long, he has
been following her. He used to ask them to keep late hours in the evening and used to offer lift in
his car to their residence. David along with his personal friend Raja, followed them secretly also,
lured them to get into his car to go around certain places and stopped his car at a wayside hotel.
They were taken to a desolate spot in a park nearby and he and his friend raped the two girls and
left them there. The incidents that happened just before rape itself satisfy the contention that it
has been in furtherance of a common intention.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be maintainable, to
hold that the there has been no consent and thus rape and render the accused having joint liability
under section 34 of the Indian Penal Code. Also, the Court may pass any order, writ, direction
that it deem fit in the interest of justice, equity and good faith. Thank you, your lordship.

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RESPONDENT SIDE

1ST SPEAKER- May it please this Hon’ble Court, this is counsel __ appearing along with my
co-counsels ___, __ and ____ on behalf of the respondent in the case concerning MAHILA
DAKSHATA SAMITHI VERSUS UNION OF INDIA & ANR. The counsel for the
respondents has three contentions to submit before this Hon’ble Court. Hope the lordship is well
versed with the facts of the case. With your lordships’ kind permission may the counsel move on
to her contentions.

The respondent submits that the Court has held that only if there is a violation of Fundamental
Rights can it step in under the Jurisdiction of Article 32 in Andhra Industrial Works v.. Chief
Controller of Imports and Ors, AIR 1974 SC 1539. The petitioner is raising a mere scholarly
objection, without any locus standi. The respondents contend that there has been no violation of
fundamental right in the present case. Moreover, the petition has been filed prematurely. A
petition can be filed under Art. 32 of the constitution only when the fundamental right is
violated. Also, the alternative remedy has not been exhausted. Thus, the writ petition is not
maintainable. Under Article 32 any citizen can approach Supreme court for filing a writ petition
when his fundamental rights are violated. Here the petitioner moved to the court does not have
any funamental right violation. The precious time of Hon'ble court may not be spent for such
motives. No affected parties have approached the Supreme Court. Therefore the PIL filed is not
maintainable. In the present case, there has been no violation of the fundamental rights since, the
sexual intercourse was by consent and cannot be termed as rape, moreover the complaint have
been registered, even before police could take up the case and further investigation, the victims
came to Delhi and pursued the NGO to file a writ prematurely. The respondents contend that
there has been no violation of fundamental right in the present case. Moreover, the petition has
been filed prematurely. A petition can be filed under Art. 32 of the constitution only when the
fundamental right is violated. Also, the alternative remedy has not been exhausted. Thus, the writ
petition is not maintainable. Under Article 32 any citizen can approach Supreme court for filing a
writ petition when his fundamental rights are violated. Here the petitioner moved to the court
does not have any funamental right violation. The precious time of Hon'ble court may not be
spent for such motives. With these humble submissions, the counsel would like to call Mr__ , to
deal with the other contentions. Much obliged your lordship.

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2ND SPEAKER- May it please this Hon’ble Court, this is counsel, ___ contending on the issue
of It is most humbly submitted before this Hon’ble Supreme Court of India that the respondent is
not at all punishable for rape under section 376 of IPC, 1860 as he has not committed the offence
of rape. The respondent was a well-educated working woman. She would be well mature to
understand the consequences of her deeds. And it cannot be said that the respondent had
established physical relations with her without her consent. Section 375 of IPC is read with
section 90 of the same which doesn’t define the consent but is specified with the provisions what
cannot be called as consent.

Under section 375 of IPC as the consent was given freely. Apart from this, the prosecution has
not sufficient evidence available to show that the rape has been committed on her. From all the
above facts and circumstances, it is crystal clear that the said accused (respondent) must not be
punishable under section 376 of IPC, 1860.

In the present case, David deemed to have developed other feelings towards the girls and do
everything in order to attract them towards him. He used to ask them to keep late hours in the
evening and used to offer lift in his car to their residence. They protested and even cautioned
David to desist from such conduct and harassment, but he would not listen. Hence, even after
encountering all this, even after knowing all this, they got into his car to go around certain places
and stopped his car at a wayside hotel and further allegedly raped them. Both the girls are well
educated and knew that David had a bad intention towards them, still they chose to get into the
car which shows their consent and when there has been consent, there would be no rape. The
consent has obviously not been taken by threatening or anything. Affirmative consent ("yes
means yes") is when both parties agree to sexual conduct, either through clear, verbal
communication or nonverbal cues or gestures.

Section 90 of the Indian Penal Code defines consent as free and intelligent consent, given
without fear or fraud, and with a full understanding of the act to which the consent is being
given. Whether the consent was freely and intelligently given, is a fact, which is not proved by
the woman’s outward behavior and conduct alone. But in deciding rape cases, the Courts seems
to rely upon that alone and do not seem to look for any further proof of her consent. The history
of women’s Consent through judicial decisions traces how a judicial precedent represses the
violence that underlines.

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In Pratap Mishra’s case (Pratap Mishra v State of Orissa, AIR 1977 SC1307) the court
observed that:“the prosecutrix was a fully grown up lady and habituated to sexual intercourse
The opinion of medical experts shows that it is very difficult for any person to rape single handed
a grown up and an experienced woman without meeting any stiffest possible resistance from her.
There were no injury marks on the bodies or the sexual organs of the accused. In the present
case, David deemed to have developed other feelings towards the girls and do everything in
order to attract them towards him. He used to ask them to keep late hours in the evening and used
to offer lift in his car to their residence. They protested and even cautioned David to desist from
such conduct and harassment, but he would not listen. Hence, even after encountering all this,
even after knowing all this, they got into his car to go around certain places and stopped his car
at a wayside hotel and further allegedly raped them. Both the girls are well educated and knew
that David had a bad intention towards them, still they chose to get into the car which shows
their consent and when there has been consent, there would be no rape. The consent has
obviously not been taken by threatening or anything. Hence there has been consent and hence,
there has been no rape, rather it is affirmative consent through acts/behavior.

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3RD SPEAKER- Your lordship, the counsel is here to deal with the contentions It is humbly
submitted before the Hon’ble Court that the act of the accused was not in furtherance of a
common intention.

The Section 34 of the Indian Penal Code, 1860 states;

“When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone”

This section is intended to meet cases in which it may be difficult to distinguish between the acts
of the individual members of a party or to prove what part was exactly taken by each of them in
furtherance of the common intention of all as held in Mepa Dana, (1959) Bom LR 269. The
reason why all are deemed guilty in such cases is that the presence of accomplices gives
encouragement, support and protection to the person actually committing an act. It is true that no
concrete evidence is required to prove a common intention between two people to commit an act.
It is however key here to understand that such evidence must be such that it does not leave any
room for doubt against such an intention.

The respondent submits that since the aforementioned two essential conditions have not been
met with in the present. It is further submitted that the accused must not be held liable under
Section 34 of IPC.

In the light of the issues raised, arguments advanced and authorities cited, it is most humbly
submitted that the court may be pleased to adjudge and declare the writ to be non- maintainable,
to hold that the there has been consent and thus, no rape and render the accused not having joint
liability under section 34 of the Indian Penal Code. Also, the Court may pass any order, writ,
direction that it deem fit in the interest of justice, equity and good faith. Thank you, your lordship