IN THE HON’BLE SUPREME COURT OF HINDANIA

C.C. NO. 645 KECDI

REPULIC OF

HINDANIA

V.

SANDEEP GOKHALE

FOR OFFENCES CHARGED UNDER:

SECTIONS 363, 366 – A, 328, 506

OF THE HINDANIA PENAL CODE, 1860

AND

SECTION 4 OF THE POCSO ACT, 2012

UPON SUBMISSION TO THE HON’BLE SUPREME COURT

MEMORIAL ON BEHALF OF THE RESPONDENT

List of Abbreviations 3

Index of Authorities 4

 Table of Cases 4

 Books 7

 Websites 7

 Statutes 8

Statement of Jurisdiction 9

Statement of Facts 10

Statement of Charges 12

Summary of Arguments 13

Arguments Advanced 14

Issue-I: WHETHER THE SPECIAL LEAVE TO APPEAL IS 16

MAINTAINABLE UNDER THIS HON’BLE SUPREME COURT.

Issue-II: WHETHER THE GIRL IS A MINOR AND IF 21

OSSIFICATION TEST AND SCHOOL BIRTH CERTIFICATE HOLD

CONCLUSIVE

VALUE.
Issue-III: WHETHER PENETRATIVE SEXUAL ASSAULT 27

TRANSPIRED WITH THE PROSECUTRIX.

Issue-IV: WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE 35

OF CRIMINAL INTIMIDATION ENLISTED UNDER THE

HINDANIA

PENAL CODE, 1860.

Prayer 37

Page 2 of 55
Page 3 of 55
 LIST OF ABBREVIATIONS

& And
A.P. Andhra Pradesh
AIR All India Report
Anr. Another
HPC Hindania Penal Code
CrPC Code of Criminal Procedure
E.g. Example
Hon’ble Honorable
IPC Indian Penal Code
M.P. Madhya Pradesh
No. Number
Ors. Others
r/w Read with
Retd. Retired
S./Sec. Section
SC Supreme Court
SCC Supreme Court Cases
St. State
U.P. Uttar Pradesh
u/s Under Section
v. Versus

Page 4 of 55
 INDEX OF AUTHORITIES

TABLE OF CASES:

1. N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196

2. Pritam Singh v. The State, AIR 1950 SC 169

3. A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546

4. Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467

5. M.C. Mehta v. Union of India, AIR 2004 SC 4618

6. Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15

7. Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806

8. Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323

9. Mathai Joby v. George, (2010) 4 SCC 358

10. Union of India v. Era Educational Trust, AIR 2000 SC 1573

11. DCM v. Union of India, AIR 1987 SC 2414

12. Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492

13. Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622

14. Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563

15. Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299

16. Taherkhatoon v. Sala,bin Mohammam, AIR 1999 SC 1104

17. Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC)

18. Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999

SC 186

19. Siemens Eng & Mfg Co. v. Union of India, AIR 1976 SC 1785

20. Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78

21. City Corner v. P.A. to the Collector, AIR 1976 SC 143

Page 5 of 55
22. Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253

23. Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359

24. Khacheru Singh v. State of U.P., AIR 1956 SC 546

25. Saravanabhavan v. State of Madras AIR1966 SC 1273

26. Hem Raj v. State of Ajmer, 1954 SCR 1133

27. Vinod Katara vs. State of Uttar Pradesh 2022 SCC OnLine SC 120.

28. Ram Suresh Singh v. Prabhat Singh (2009) 6 SCC 681

29. Jyoti Prakash Rai v. State of Bihar 2008 (2) PLJR 717

30. Babloo Pasi v. State of Jharkhand (2008) 13 SCC 133.

31. Ramdeo Chauhan v. State of Assam (2001) 3 SCC 742

32. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors

33. Chathu v.Govindan Kutty,AIR 1958 Ker 121; State v. Musha & Ors., ILR (1970)

Del.198.

34. State of M.P. v. Munna @ Shambhoo Nath, (2016) 1 S.C.C. 696.

35. Smt.Tanno @ Tarawati v. State Of U.P., C.R.A. No. 324/1998. (Allahabad HC)

36. Dhobeidhar Naik v. State, 2001 (I) OLR 122.

37. R. M. Jhala & V. B. Raju, Medical Jurisprudence 198 (6th ed. 1997).

38. Debaprosad Bose vs The King, AIR 1950 Cal 406

39. State Of M.P vs Munna @ Shambhoo Nath, 2015 SCC OnLine SC 821.

40. Maru Ram Etc. Etc vs Union of Lndia & Anr, 1980 AIR 2147.

41. Smt. Triveniben & Ors vs State of Gujarat & Ors, 1989 AIR 1335

42. Shweta Gulati v. State Government of the NCT of Delhi 2018 SCC OnLine Del 10448.

43. Brij Mohan Singh v. Priya Brat Narain Sinha [AIR 1965 SC 282]

44. Birad Mal Singhvi [1988 Supp SCC 604]

45. Chidda Ram Versus State Respondent 1992 SCC OnLine Del 327.

46. Dinesh Chand vs. State (Govt. of NCT of Delhi) 2020 Cri LJ (NOC 236) 73
Page 6 of 55
47. Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562

48. Ragul v. State, 2017 SCC OnLine Mad 27032.

49. Raju v. State of Rajasthan Criminal Appeal No. 2096 of 2010

50. Subrata Biswas v. The State (2019) 3 Crl. (Cal) 331

51. Sitaram Das v. State of W.B, 2020 SCC OnLine Cal 522

52. Narendra Singh v. State of M.P. (2004) 10 SCC 699

53. Litan Sarkar v/s The State of West Bengal 2020 SCC OnLine Cal 248

54. Beeru vs State Nct Of Delhi 2013 Latest Caselaw 5717 Del

55. Vishnu v. State of Maharashtra (2006) 1 SCC 283

56. Rajib Bhakat v. State of West Bengal, 2009 SCC OnLine Cal 2819

57. State vs . Rajesh Kumar SC No: 106A/14

58. Thulia Kali vs The State Of Tamil Nadu 1973 AIR 501

59. Hasmukhlal D. Vora vs State of Tamil Nadu, 2022 LiveLaw (SC) 1033

60. Pintu vs State Of U.P Criminal Appeal No. 667

61. State (NCT of Delhi) v. Anil (2016)

62. Manik Taneja and Another v. State of Karnataka and Another 2015 SCC Online 51.

63. S. Ramesh v. State Through the Inspector of Police 2018 SCC OnLine Mad 2563.

64. Surinder Suri v. State of Haryana and others 1996 SCC OnLine P&H 582.

65. Amitabh Adhar & Another v. NCT of Delhi & Another, 2000 SCC OnLine Del 292.

66. G. Paramasivam v. Dy. Commissioner of Police 2016 (1) TNLR 489 (MAD),

Page 7 of 55
Page 8 of 55
BOOKS:

1. RatanLal and DhiraLal‟sTHE LAW OF EVIDENCE

2. LAW OF EVIDENCE by Justice M. Monir, revised by Deoki Nanda

3. Prof. T Bhattacharya‟s THE INDIAN PENAL CODE

4. Glanville Williams‟s TEXTBOOK OF CRIMINAL LAW

5. K.D Gaur‟s INDIAN PENAL CODE

6. RatanLal and DhirajLal’s THE INDIAN PENAL CODE

7. S.N Misra‟sTHE CODE OF CRIMINAL PROCEDURE

8. Tandon‟s CODE OF CRIMINAL PROCEDURE

9. James R. Acker and JoAnne M. Malatesha’s LAW AND CRIMINAL JUSTICE

10. Janak Raj Jai’s BAIL LAW AND PROCEDURES

11. K Kamal’s MEDICAL LAWS

WEBSITES:

1. https://indianexpress.com/article/cities/delhi/mere-absence-of-medical-evidence-does-not-mean-
sexual-assault-did-not-occur-delhi-hc-8257714/

2. http://www.scconline.com/DocumentLink/840s895d.

3. http://www.findlaw.com

4. http://www.juris.nic.in

5. http://www.manupatra.co.in/Advancedlegalsearch.aspx

6. http://www.scconline.com

7. https://medcraveonline.com/FRCIJ/forensic-toxicology-and-its-relevance-with-criminal-justice-
delivery-system-in-india.html#_ftn34.

8. https://nearlaw.com/PDF/MumbaiHC/2016/2016-ALL-MR-(CRI)-1980.html#para10.

9. https://www.scconline.com/blog/post/2022/09/13/juvenility-belated-plea-documentary-evidence-
bone-ossification-test-time-supreme-court-legal-research-updates-news/

10. https://www.theweek.in/news/sci-tech/2023/02/15/ossification-test-your-age-is-in-your-bones.html

Page 9 of 55
Page 10 of 55
STATUTES:

1. Constitution of India, 1949.

2. The code of Criminal Procedure, 1973

3. The Evidence Act, 1872

4. The Indian Penal Code, 1860.

Page 11 of 55
 STATEMENT OF JURISDICTION

It is humbly submitted before the hon’ble court that the petitioner has approached this apex
court under Article 136 of the Indian Constitution.
Article 136 of the Indian Constitution enshrines that: -
Special leave to appeal by the Supreme Court -
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

The Respondent humbly submits before this Hon’ble Court that the present petition of the
appellant is not maintainable.

Page 12 of 55
Page 13 of 55
 STATEMENT OF FACTS

1. One Mehsina, A girl of almost 16 years of age, belongs to a poor labourer family
wherein the family lives in city named Koshila, Situated in the Republic of Hindania.
Mehsina used to get training at a sewing centre registered under Pradhan Mantri
Kaushal Vikas Yojna. She dropped out effectively from her school while she was in
7th grade due to the family’s pecuniary conditions.
2. On 15th December 2018, when Mehsina wass going to her training centre, when one
Sandeep Gokhalec called her and told her that one of Mehsina’s friend, Shamima was
calling her and Sandeep who worked nearby in a mall who was near the Sewing
centre took her to shervan hotel on his motorbike. She went to the room on the first
floor of the hotel with Sandeep who then forcibly offered her two intoxicating tablets
along with cold drink and past five minutes when Mehsina started feeling dizzy and
was unconscious he apparently committed rape upon her.
3. When mehsina regaied consciousness, there was no clothes on her body and he also
took som obscene photos and videos of the incident and threatened that if mehsina
discloses about the pertaining incident or the video, he will kill her parents. After
which he left her back at the training centre and also gave a mobile phone and told her
that if she doesn’t talk to him through a phone given to mehsina by sandep, he will
kill her and her parents.
4. Later on he started threatening mehsina and demanded her nude videos and claimed
that if she doesn’t send him the videos he will kill her brother and other members of
her family as well. For this purpose Sandeep purportedly created Mehisna’s ID on
Instagram through which she was to send her obscene videos and photos to Sandeep’s
Instagram ID. Ultimately she informed her parents about the whole incident.
5. On 18th June, 2019 a complaint no. 645 KECDI dated the same was received in the
police station throught post from the office of Superintendent of Police, Koshila
moved by Mehsina’s father alleging the incident with the accused being One,
Sandeep Gokhale.
6. The child welfare committee, Koshila conducted her counselling and her medical
examination was conducted and the samples so taken were sent to FSL laboratory. A
rough plan of the site of occurrence was prepared and the statements as deposed by
mehsina were recorded under section 164 crpc. During the investigation the copy of

Page 14 of 55
her

Page 15 of 55
 birth certificate was not found and in absence of the birth certificate her ossification
test was conducted wherein the age was opined to be around 16 years which
corroborated with the age found from her school record from where she dropped out
in the 7th standard. The mobile phone which was given by Sandeep to mehsina was
also take into the police custody. The accused was then arrested by the police and his
belongings pertaining to the incident were also taken into the police custody and the
samples from his medical examination were further sent to the fsl laboratory.
7. After the completion of apropos investigation and proceedings, a challan under
section 173 crpc was presented in the court for trial of the accused that is Sandeep
Gokhale.
8. After further probing it was later on found that mehsina’s parents were not aware of
her friend shamima. And the father when questioned failed to give a reasaonable
answer to why there was a delay in filing of the complaint further the hotel
receoptionist claimed documentation loss due to termite as well, on deposition of
mehsina’s mother aptly rejected that the accused is not known to her daughter and has
never met her before.
9. After the ensued trial in the trial court under section 67 B of the it act as well as
Section 328, 363, 366 A and 506 of the Indian Penal Code and Section 4 of the
POCSO act 2012. The trial court after the proceedings held the accued guilty under
only section 67 Band the trial court acquitted the accused of all the other section of
the Indian penal code as well as the pocso act. The prosecution then appealed in the
high court which also upheld the decision of the trial court, the appeal then went to the
supreme court against the decision of the high court, thereof.

Page 16 of 55
Page 17 of 55
 STATEMENT OF ISSUES

1. WHETHER THE SPECIAL LEAVE TO APPEAL IS MAINTAINABLE

UNDER THIS HON’BLE SUPREME COURT.

2. WHETHER THE GIRL IS A MINOR AND IF OSSIFICATION TEST AND

SCHOOL BIRTH CERTIFICATE HOLD CONCLUSIVE VALUE.

3. WHETHER PENETRATIVE SEXUAL ASSAULT TRANSPIRED WITH THE

PROSECUTRIX.

4. WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE OF

CRIMINAL INTIMIDATION ENLISTED UNDER THE HINDANIA PENAL

CODE, 1860.

Page 18 of 55
Page 19 of 55
 STATEMENT OF CHARGES

The accused Sandeep Gokhale alias Sanju has been charged under the provisions of the
Hindania penal Code, 1860, The Protection of Children from Sexual Offences Act, 2012
and the Information Technology Act, 2000. The accused has been charged with the
underlying sections: -
Charge-1

The first series of charges on the accused, Sandeep Gokhale are under Sections 363, 366-A,
328, 506 of the Hindania Penal Code, 1860. These sections deal with the offences of
“Kidnapping, Procuration of minor girl, Criminal Intoxication and Criminal
Intimidation.”
Charge-2

The second charge on the accused, Sandeep Gokhale is under Section 4 of the Protection of

Children from Sexual Offences Act, 2012. This pertaining section deals with the offence

related to “Penetrative Sexual Assault”.

Charge-3

The third series of charges on the accused, Sandeep Gokhale are under Sections 67 and 67-
A of the Information Technology Act, 2000. These pertaining sections deal with the
offences relating to “Publishing or transmitting obscene material in electronic form” and
“publishing or transmitting of material containing sexually explicit act, etc., in
electronic form”.

Page 20 of 55
 SUMMARY OF ARGUMENTS

ISSUE 1

It is humbly submitted to this Hon’ble Court that in the given factual matrix, there is no
necessity or compulsion for the intervention of this Hon’ble Court and invoking its powers
under Article 136. The Appellants have committed a breach of contract by failing to approach
the Courts in Delhi as was provided under the Contract. The Bombay High Court expressed
the same while dismissing the matter.

ISSUE 2

It is humbly submitted before this Hon’ble Court that in the given factual matrix, there leaves
no intelligible space for doubt that the girl is a major, after having proved the unreliability of
the ossification test and the fact that the ossification test as well as the school birth certificate
cannot be admitted as conclusive evidence in the court to prove the age of the prosecutrix.
And admitting the fact that there is no other conclusive proof that proves that the prosecutrix
is approximately, 16 years of age and therefore the fact that the majority of the prosecutrix
cannot be ruled out.

ISSUE 3

It is humbly submitted before this Hon’ble supreme court that in the given factual matrix and
with apt corroboration with the statutes cited , there further leaves no intelligible space for
doubt that there transpired no penetrative sexual assault, after having proved that there was no
preponderance of presumption under section 29 under POCSO act 2017 and that the
prosecution has not proved beyond a reasonable doubt that there occurred, penetrative sexual
assault and amongst that there occurs reversal of the burden of proof. There is also no
evidence of the assault except the opinion of the medical practitioner that the hymen was torn
which has also been addressed by the fact that hymen rupturing can also take place due to
other physical activities and due to coming of age as well. Furthering the argument is the fact
that there was a delay in lodging the FIR and that raises the concerns that the case inherently
might be embellished with untrue and scrupulous claims.

Page 21 of 55
ISSUE 4

Section 506 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) prescribes
punishment for the offence of criminal intimidation. “Criminal intimidation” as defined in
Section 503 IPC is that. Whoever threatens another with any injury to his person, reputation
or property, with intent to cause alarm to that person, or to cause that person to do any act
which he is not legally bound to do, as the means of avoiding the execution of such threat,
commits criminal intimidation. The Supreme Court in Manik Taneja and Another v. State of
Karnataka and Another. Therefore it is argued and submitted before this Hon’ble apex court
that the accused has merely shown threat and had no intention of executing his threat so given
and therefore according to the precedents so cited, the accused is not guilty of criminal
intimidation.

Page 22 of 55
Page 23 of 55
 ARGUMENTS ADVANCED

ISSUE 1:

WHETHER THE SPECIAL LEAVE TO APPEAL IS MAINTAINABLE UNDER

THIS HON’BLE SUPREME COURT

4.1 Regardless of the appellants' locus standi, the petition for special leave cannot be
upheld.
4.1.1 Article 136 only gives the Supreme Court discretionary power to satisfy the
demands of justice in unusual circumstances.1 It does not grant the Supreme Court
a right of appeal. The Supreme Court ruled in Pritam Singh v. The State2 that the
power granted by Article 136 should only be used in rare and extraordinary
circumstances. The Supreme Court stated in its ruling on Article 136 that
"Generally speaking, this court will not grant Special Leave, unless it is shown
that exceptional and special circumstances exist, that substantial and grave
injustice has been done, and that the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against."

4.1.2 Although the power has been held to be plenary, limitless3, adjunctive, and
unassailable4, in M. C. Mehta v. Union of India5 and Aero Traders Private
Limited
v. Ravider Kumar Suri,6 it was held that the powers under Article 136 should be
exercised with caution and in accordance with law and set legal principles.

4.1.3 In the cases of Secretary, State of Karnataka v. Umadevi7 and Shivanand

Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills8 , the Supreme Court has

1
N. Suriyakala v. A. Mohandoss, (2007) 9 SCC 196
2
Pritam Singh v. The State, AIR 1950 SC 169
3
A.V. Papayya Sastry v. Government of Andhra Pradesh, AIR 2007 SC 1546
4
Zahira Habibullah Sheikh v. State of Gujarat, AIR 2004 SC 3467
5
M.C. Mehta v. Union of India, AIR 2004 SC 4618
6
Aero Traders Private Limited v. Ravider Kumar Suri, AIR 2005 SC 15
7
Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806
Page 24 of 55
8
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323

Page 25 of 55
 criticized the approach of settling private disputes under Article 136, stating that it
would lead to confusing results and lack of precedents. The Court observed that
the Court is not bound to interfere even if there is error of law in the impugned
order.9

4.1.4 It is humbly submitted before this Hon’ble apex court that there was no error in
the judgement of the Trial Court and the High court. The counsel for the defence
would also like to submit before this Hon’ble Court that there is no pressing
matter or question of law, for which, the intervention of this court is required or is
imperative for that matter, i.e. there is no necessity to invoke the jurisdiction
conferred upon this Hon’ble Court under Article 136.

4.2 Non-interference in the decision of the lower courts

4.2.1 If it appears prima facie that the order in question cannot be justified by any
judicial standard, the ends of justice and the need to maintain judicial discipline
require the Supreme Court to intervene 10; the Supreme Court in this case pointed
out the errors of the High Court, but did not interfere in the decision of the High
Court. The Supreme Court does not interfere with the conclusion arrived at by the
Tribunal if it has taken all the relevant factors into consideration and there has
been no misapplication of the principles of law.11

4.2.2 Normally, in exercising its jurisdiction under Article 136, the Supreme Court does
not interfere with the findings of the fact concurrently arrived at by the tribunal
and the High Court unless there is a clear error of law or unless some important
piece of evidence has been omitted from consideration.12 And as buttressed there
has been no ignorance of conclusive evidence that was pertinent to the present cas
in hand.

4.2.3 A question is not allowed to be raised for the first time in an appeal before the
Supreme Court.13 It would refuse a question to be developed before it when it had
neither been urged before the High Court nor before the Appellate Tribunal. 14
Though Article 136 is conceived in widest terms, the practice of the Supreme
Court
9
Mathai Joby v. George, (2010) 4 SCC 358
Page 26 of 55
10
Union of India v. Era Educational Trust, AIR 2000 SC 1573
11
DCM v. Union of India, AIR 1987 SC 2414
12
Mehar Singh v. Shri Moni Gurudwara Prabandhak Committee, AIR 2000 SC 492
13
Nain Singh Bhakuni v. Union of India, AIR 1998 SC 622
14
Asst. Controller, Central Excise v. N T Co., AIR 1972 SC 2563

Page 27 of 55
 is not to interfere on questions of fact except in exceptional cases when the
finding is such that it shocks the conscience of the court. 15 And there has been no
such claims to an extent (that falls under the pertinent degree aforementioned) in
the present case in hand.

4.3 Scope of Powers of the supreme court under Article 136 of the Indian Constitution.

4.3.1 It is humbly submitted that if Special Leave is granted, the matter is registered as
an appeal and the Court does not take into cognizance all the points that may arise
on appeal and decide them on Merits.16 The Supreme Court has also held that “it
is not bound to go into merits and even if we do so and declare the law or point
our the error – still we may not interfere if the justice of the case on facts does not
require interference or if we feel that the relief could be moulded in a different
fashion.”17

4.3.2 The Supreme Court in Kunhayammed v. State of Kerala,18 held that Article 136
consists of two distinct stages, the first stage where the matter is merely being
decided if it is to be accepted as an appeal or not; if the Supreme Court decides to
adjudicate the matter, it becomes an appeal, if otherwise, the matter was never an
appeal.

4.3.3 Hence, it is humbly submitted to this Hon’ble Court that by reason of lack of any
specific matter that requires the intervention of this Hon’ble Court, the Court need
not entertain the matter for all the conclusive evidences and witnesses have been
taken into due consideration by both the trial court as well as the Hon’ble High
court who after having decided rightly on the subject matter relating to the
charges filed under section 67 and section 67 A of the IT Act, 2000 have
convicted the accused and after having duly considered all the facets of the case
the courts have rightly acquitted the accused of all the other charges lodged.

15
Panchanan Misra v. Digambar Mishra, AIR 2005 SC 1299
16
Taherkhatoon v. Sala,bin Mohammam, AIR 1999 SC 1104
17
Taherkhatoon v. Sala,bin Mohammam, AIR 1999 SC 1104
18
Kunhayammed v. State of Kerala, (2000) 245 ITR 360 (SC)
Page 28 of 55
4.4 Grounds on which appeal should have been granted are not satisfied in the present case.

4.4.1 The Supreme Court can exercise its Jurisdiction under Article 136 under the
following circumstances-
(i) When the Tribunal ostensibly fails to exercise its patent jurisdiction.19
(ii) When there is an apparent error on the face of the decision.20
(iii) The tribunal has erroneously applied well-accepted principles of
jurisprudence.21
(iv) The tribunal acts against the principles of Natural Justice,22 or has
approached the question in a manner likely to cause injustice.23
4.4.2 In the instant case the Trial court or the High court have not committed any error
in law. There is no breach in law or natural justice; to say that the upholding of
the decision of the trial court by the Hon’ble High Court was wrong would be
incorrect because the matter has duly been adjudicated on merits. Hence it is
humbly submitted before this Hon’ble Supreme Court that no grounds can be
made out for accepting this petition for Special Leave.

4.5 Grounds for rejection of the appeal under Article 136 in the present case.

4.5.1 In Kunhayammed and Others v. State of Kerala and Another, 24 it was held that a
petition seeking grant of special leave to appeal may be rejected for several
reasons The question raised by the petitioner for consideration by this Court being
not fit for consideration or deserving being dealt with by the Apex Court.

4.5.2 In the case of Khacheru Singh v. State of U.P,25 it was held by the apex court that
In an appeal by way of special leave this Court usually does not interfere with the
findings of fact arrived at by the courts below and nothing substantial has been
shown to persuade us to go behind the findings of fact arrived at by them.

19
Chief Administrator cum Jt. Secretary, Government of India v. D. C. Dass, AIR 1999 SC 186
20
Siemens Eng & Mfg Co. v. Union of India, AIR 1976 SC 1785
21
Clerks of Calcutta Tramways v. Calcutta Tramways Co. Ltd., AIR 1957 SC 78
22
City Corner v. P.A. to the Collector, AIR 1976 SC 143
23
Mohan Lal v. Management, Bharat Electronics Ltd., AIR 1981 SC 1253
24
Kunhayammed and Others v. State of Kerala and Another, (2000) 6 SCC 359
25
Khacheru Singh v. State of U.P., AIR 1956 SC 546
Page 29 of 55
 4.5.3 Furthering this contention of rejection of a petition for special leave to appeal, the
apex court in the case of Saravanabhavan v. State of Madras, 26It has been ruled
in many cases before that this Court will not reassess the evidence at large,
particularly when it has been concurrently accepted by the High Court and the
court or courts below. In other words this Court does not form a fresh opinion as
to the innocence or the guilt of the accused. It accepts the appraisal of the
evidence in the High Court and the court or courts below. Therefore, before this
Court interferes something more must be shown, such as, that there has been in
the trial a violation of the principles of natural justice or a deprivation of the rights
of the accused or a misreading of vital evidence or an improper reception or
rejection of evidence which, if discarded or received, would leave the conviction
unsupportable, or that the court or courts have committed an error of law or of the
forms of legal process or procedure by which justice itself has failed.

4.5.4 Further buttressing the grounds is the contention and observation of the apex court
in the case of Hem Raj v. State of Ajmer,27 Unless it is shown that exceptional
and special circumstances exist that substantial and grave injustice has been done
and the case in question presents features of sufficient gravity to warrant a review
of the decision appealed against, this Court does not exercise its overriding
powers under Article 136(1) of the Constitution. It is therefore, humbly
submitted that there is no ground for invoking this Hon’ble Court’s jurisdiction
under Article 136.

26
Saravanabhavan v. State of Madras AIR1966 SC 1273
27
Hem Raj v. State of Ajmer, 1954 SCR 1133
Page 30 of 55
 ISSUE 2:

WHETHER THE GIRL IS A MINOR AND IF OSSIFICATION TEST AND SCHOOL

BIRTH CERTIFICATE HOLD CONCLUSIVE VALUE

2.1 The concept of Ossification Test

2.1.1 The bone ossification test (ossification test) is a test that determines age based on the
“degree of fusion of bone” by taking the x-ray of a few bones. In simple words, the
ossification test or osteogenesis is the process of the bone formation based on the
fusion of joints between the birth and age of twenty-five years in an individual. Bone
age is an indicator of the skeletal and biological maturity of an individual which
assists in the determination of age.

2.1.2 The most common method used for the calculation of the bone age is radiography of
the hand and wrist until the age of 18 years beyond which the medial age of clavicle
is used for bone age calculation till the age of 22 years as the hand and wrist bone
radiographs cannot be computed beyond 18 years of age as the elongation of the bone
is complete after adolescence. However, it must be noted that the ossification test
varies slightly based on individual characteristics, therefore the ossification test
though is relevant however it cannot be called solely conclusive.28

2.1.3 To perform an ossification test, a trained professional, such as a forensic

anthropologist, will typically obtain x-rays of the relevant bones in the body. These x-
rays are then examined for signs of ossification, such as the fusion of growth plates or
segments. Based on the degree of ossification, the professional can estimate the
person's age within a certain range. It is important to note, however, that this
method is not fool proof, and there can be significant individual variation in the
rate and pattern of bone ossification. Additionally, factors such as disease, injury,
and malnutrition can

Page 31 of 55
28
SCC OnLine, https://www.scconline.com/blog/post/2022/09/13/juvenility-belated-plea-documentary-
evidence-bone-ossification-test-time-supreme-court-legal-research-updates-news/

Page 32 of 55
 all affect the degree of bone ossification, making it more difficult to accurately
estimate a person's age.29

2.2 Precarious Authenticity of the Ossification test for determining the age

2.2.1 In the case of Vinod Katara vs. State of Uttar Pradesh,30 the Hon’ble Supreme Court
held that, The bone ossification test is not an exact science that can provide us with
the exact age of the person and that the individual characteristics such as the growth
rate of bones and skeletal structures can affect the accuracy of this method.

2.2.2 This Court has further observed in the cases of Ram Suresh Singh v. Prabhat
Singh,31 and Jyoti Prakash Rai v. State of Bihar 32, that the ossification test is not
conclusive for age determination because it does not reveal the exact age of the
person, but the radiological examination leaves a margin of two years on either side
of the age range as prescribed by the test irrespective of whether the ossification test
of multiple joints is conducted. The courts in India have accepted the fact that after
the age of thirty years the ossification test cannot be relied upon for age
determination. It is trite that the standard of proof for the determination of age is the
degree of probability and not proof beyond reasonable doubt.

2.2.3 Further in the cases of Babloo Pasi v. State of Jharkhand, 33 and simultaneously
commenting on the evidentiary value of the ossification test in the case of Ramdeo
Chauhan v. State of Assam,34 Justice R.P.Sethi observed that An x-ray ossification
test may provide a surer basis for determining the age of an individual than the
opinion of a medical expert but it can by no means be so infallible and accurate a test
as to indicate the exact date of birth of the person concerned. Too much of reliance
cannot be placed upon textbooks, on medical jurisprudence and toxicology while
determining the age of an accused. In this vast country with varied latitudes, heights,
environment vegetation and nutrition, the height and weight cannot be expected to be
uniform.

29
https://www.theweek.in/news/sci-tech/2023/02/15/ossification-test-your-age-is-in-your-bones.html
Ossification test: your age is in your bones, Para.5.
30
Vinod Katara vs. State of Uttar Pradesh 2022 SCC OnLine SC 120.
31
Ram Suresh Singh v. Prabhat Singh (2009) 6 SCC 681
32
Jyoti Prakash Rai v. State of Bihar 2008 (2) PLJR 717
Page 33 of 55
33
Babloo Pasi v. State of Jharkhand (2008) 13 SCC 133.
34
Ramdeo Chauhan v. State of Assam (2001) 3 SCC 742

Page 34 of 55
2.2.4 Further buttressing the unreliability of the ossification test for determining the age
was the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and
Ors,35 the supreme court held in the context of certificate required under Section 65B
of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossible,
law does not demand the impossible.

2.2.5 ‘The first is lex non cogit ad impossibilia i.e. the law does not demand the
impossible, and impotentia excusat legem i.e. when there is a disability that makes it
impossible to obey the law, the alleged disobedience of the law is excused.’ Thus,
when the ossification test cannot yield trustworthy and reliable results, such test
cannot be made a basis to determine the age of the person concerned on the date
of incident.

2.2.6 By no means can an X-ray ossification test be so perfect and precise as to accurately
calculate a person's lifespan.36 Ossification test revealed a set age of 16 years in the
current case,37 which is impossible. This difference in determining the accurate age
instead of providing a range thereof may have been resolved if the defense had been
given the opportunity to cross-examine the radiologist throughout the trial process.
Thus, guilt cannot be upheld because the radiologist who performed the ossification
test has not been questioned and the victim's age has not been established beyond a
reasonable doubt.38

2.2.7 It is submitted before this Hon’ble Court that while performing ossification test X-
rays help to determine the extent of ossification and the union of epiphytic bones.39 In
girls, epiphyses at elbow, wrist takes place between the age of 13-14 years and 16-17
years respectively.40 Moreover, bones at pelvis unite between the age of 18-22 years.41
When fusions of wrist, elbow and knee joints are complete, the girl is found to be
between 20-21 years in age.42 As no radiologist from the prosecution side came to
certify the

35
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors
36
Chathu v.Govindan Kutty,AIR 1958 Ker 121; State v. Musha & Ors., ILR (1970) Del.198.
37
Moot Proposition, ¶1, para 2, sub-para 2.
38
State of M.P. v. Munna @ Shambhoo Nath, (2016) 1 S.C.C. 696.
39
Smt.Tanno @ Tarawati v. State Of U.P., C.R.A. No. 324/1998. (Allahabad HC)

Page 35 of 55
40
PARIKH’S TEXTBOOK OF MEDICAL JURISPRUDENCE, FORENSIC MEDICINE AND TOXICOLOGY,
(CBS
Publishers, 6 th ed., 2007), Pg-2.10.
41
id

Page 36 of 55
 contents of the report, it left the defence’s case stronger because the status of these X-
rays was not known and it raised questions as to whether the bones were actually
united or not and what led the radiologist to conclude that the deceased was exactly
16 years of age, therefore leading to reasonable doubts on the ossification test
conducted in the present case itself.

2.2.8 It is further submitted before this Hon’ble court that the determination of age by
the radiologist in this case where there took no deposition or cross examination
of the radiologist proves fatal to the case of prosecution for it does not lead to a
proper age and the inference by the radiologist so made therefore stands
irrelevant.

2.3 Variation in the results of the ossification test.

2.3.1 The major reason for ossification tests to not be a strong piece of evidence is because
generally there is a variation of two years on both sides of the given possible age
range.43 The process of ossification may also vary based on factors like the nutrition,
genetic peculiarities, injuries, geographical and climatic conditions, economic
conditions, etc.

2.3.2 The court has also held that a uniform criterion cannot be applicable44 in the entirety
of the country due to its diverse conditions within its various regions itself. It also
held that the process of ossification also varies based on the gender of examinee. The
decision of the court, especially in cases involving the conviction of a person, cannot
be based merely on the approximate date obtained through a test that doesn’t not give
a definitive result.45

2.3.3 There is also a dichotomy in the appreciation of the ossification test results by the
court as the benefit of doubt is given to the accused and the age — lower or upper —
whichever is in favour of the accused is taken.46 The scale of balance favours the

43
R. M. Jhala & V. B. Raju, Medical Jurisprudence 198 (6th ed. 1997).
44
Debaprosad Bose vs The King, AIR 1950 Cal 406
45
State Of M.P vs Munna @ Shambhoo Nath, 2015 SCC OnLine SC 821.
46
Maru Ram Etc. Etc vs Union of Lndia & Anr, 1980 AIR 2147.
Page 37 of 55
 interests of the accused over the interests of the victim. 47 For instance, in the case of
Shweta Gulati v. State Government of the NCT of Delhi,48the age of the victim was
under consideration and the court considered the higher age to be actual age to give
the benefit to the accused.

2.3.4 It is therefore, humbly submitted before this Hon’ble Court that “bone
ossification tests are conducted on a large scale in India but no consistent practice has
been evolved in the courts with respect to its appreciation as well as the exact number
of ossification centers that are to be analyzed. Certain guidelines have to be enacted
in order to ensure that there is no lacuna in the court’s practice and the parties
approaching the court to have a clear conception as to how and what will be court’s
conduct when the test shows a particular type of result.

2.4 School Birth certificate or register is not a conclusive proof for proving the age of the girl

2.4.1 In the case of Sushil Kumar v. Rakesh Kumar the case of Brij Mohan Singh v.
Priya Brat Narain Sinha,49 was referred and this Court, inter alia, observed that in
actual life it often happens that individuals give false age of an individual at the time
of his admission to a school so that later in life they would have an advantage when
seeking public service for which a minimum age for eligibility is often prescribed.
2.4.2 Furthering this was the case of Birad Mal Singhvi,50 the hon’ble court observed that
“To render a document admissible under Section 35, three conditions must be
satisfied, firstly, entry that is relied on must be one in a public or other official book,
register or record; secondly, it must be an entry stating a fact in issue or relevant fact;
and thirdly, it must be made by a public servant in discharge of his official duty, or
any other person in performance of a duty specially enjoined by law. An entry
relating to date of birth made in the school register is relevant and admissible under
Section 35 of the Act but the entry regarding the age of a person in a school register is
of not much evidentiary value to prove the age of the person in the absence of the
material on which the age was recorded.”

47
Smt. Triveniben & Ors vs State of Gujarat & Ors, 1989 AIR 1335
48
Shweta Gulati v. State Government of the NCT of Delhi 2018 SCC OnLine Del 10448.
49
Brij Mohan Singh v. Priya Brat Narain Sinha [AIR 1965 SC 282]
50
Birad Mal Singhvi [1988 Supp SCC 604]
Page 38 of 55
2.4.3 It is further submitted before this hon’ble court that in the case of Chidda Ram
Versus State Respondent,51the pertaining court had observed that A school certificate
or an admission form is not conclusive evidence of the age of the prosecutrix. The
unproved and unexhibited school certificate cannot be treated as evidence and in fact,
the ossification test is also not a sure test as to the age of the prosecutrix. It gives only
an approximate age which may vary by two years on either side. The medical opinion
that the prosecutirx was below 16 years, this fact only gives approximation of the age.
The fact that the prosecutrix could not be more than 16 years cannot be ruled out.
Some of the High Courts have gone to the extent of saying that doctor's evidence is
not more than an opinion regarding the age of a girl gathered from her physical
examination nor can it give her correct age. It is therefore, humbly contended
before this Hon’ble Supreme Court that the girl, Mehsina is not a minor and the
claims relating to her age after having been proven scrupulous cannot be taken
into consideration to inculpate the accused under the POCSO Act, 2012.

51
Chidda Ram Versus State Respondent 1992 SCC OnLine Del 327.
Page 39 of 55
Page 40 of 55
 ISSUE 3:

WHETHER PENETRATIVE SEXUAL ASSAULT TRANSPIRED PROSECUTRIX

3.1 What is Penetrative Sexual Assault under POCSO Act, 2017

3.1.1 The definition of penetrative sexual assault has been laid down in the POCSO act
2017, wherein it defines it as follows: -
A person is said to commit "penetrative sexual assault" if-
i. He penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
child or makes the child to do so with him or any other person; or
ii. He inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of the child or makes the child to do so with
him or any other person; or
iii. He manipulates any part of the body of the child so as to cause penetration into
the vagina, urethra, anus or any part of body of the child or makes the child to do
so with him or any other person; or
iv. He applies his mouth to the penis, vagina, anus, urethra of the child or makes the
child to do so to such person or any other person52

3.1.2 The penetrative sexual assault described under Section 3(a) of the Protection of
Children from Sexual Offences Act, 2012 referred to hereinabove only describes the
modes through which such penetrative sexual assault can be made i.e. by penetrating
his penis to any extent into the vagina, mouth, urethra or anus of a child or makes a
child to do so with him or any other person, in as much as the nature of carnality
punishable under Section 377 of the Penal Code, 1860, is not punishable under
Section 3 of the Protection of Children from Sexual Offences Act, 2012, which rather
punishes all modes of commission of penetrative assault on the minor child.53

52
Section 3 of the Protection of Children from Sexual Offences Act, 2012.
53
Dinesh Chand vs. State (Govt. of NCT of Delhi) 2020 Cri LJ (NOC 236) 73
Page 41 of 55
 3.1.3 As per Section 3 of the Act, a person is said to commit 'penetrative sexual assault' if-
(b) he inserts, to any extent, any object of a part of the body, not being the penis, into
the vagina. Section 4 provides 'punishment for penetrative sexual assault'. Section 5
of the Act defines 'aggravated penetrative sexual assault' and as per Section 5(m)
whoever commits penetrative sexual assault on a child below twelve years it is
aggravated penetrative sexual assault. Section 6 provides 'punishment for aggravated
penetrative sexual assault. It is therefore submitted before this Hon’ble Court that
the accused has not committed penetrative sexual assault and the findings and
this pertinent claim is deliberated further in the sub-issues.

3.2 Test of Presumption and Reversed Burden of proof.

3.2.1 Most presumptions are rules of evidence calling for a certain result in a given case
unless the adversely affected party overcomes it with other evidence. A presumption
shifts the burden of production of evidence or persuasion to the opposing party, who
can then attempt to overcome the presumption. In other words, it reverses the burden
of proof. In order to prove a negative fact, the fact whose opposite is sought to be
established must be proposed first.54 It is, therefore, an essential prerequisite that the
foundational facts of the prosecution case must be established by leading evidence
before the aforesaid statutory presumption is triggered in to shift the onus on the
accused to prove the contrary. To hold otherwise would amount to giving judicial
approval to the prosecution version howsoever imaginary, absurd or farfetched it may
be.55 It has also been held that for invoking the presumption under Section 29, the
prosecution shall prove the foundational facts beyond reasonable doubt, on the other
hand, the defence may rebut the presumption by a preponderance of probabilities.

3.2.2 In Raju v. State of Rajasthan,56where the prosecution failed to indisputably prove

that the victim was under the age of 18 years on the date of commission of crime, the
Rajasthan High Court refused to draw the presumption under Section 29. Therefore,
the position that emerges from the analysis of case law is that while prosecution may
be initiated upon prima facie existence of incriminating facts, presumption of guilt
requires that the foundational facts are proved beyond reasonable doubt. Looking at

54
Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562
55
Ragul v. State, 2017 SCC OnLine Mad 27032.
56
Raju v. State of Rajasthan Criminal Appeal No. 2096 of 2010
Page 42 of 55
 Section 29 in this manner is the only way in which it can be saved from the vice of
unconstitutionality., Wherefore, it is to be proved subsequently that the
prosecution has grossly failed to prove foundational facts.

3.2.3 There is hardly any scope for direct application of Section 29 of the POCSO Act,
even in a case where there is no foundational evidence being led by the prosecution.
The issue was addressed in the case of Subrata Biswas v. The State57, where the ratio
decided was that proof of penetrative sexual assault is sine qua non prior to making
application of the presumption available under Section 29 of the POCSO Act. Section
29 has got no direct and automatic application irrespective of the standard of evidence
adduced in a particular case. Thus, without proof of foundational evidence in a case
under the POCSO Act, the onus to prove the reverse burden of proof does not come
into operation. The statutory presumption therefore cannot be taken to be absolute. In
the case of Sitaram Das v. State of W.B,58 It is only on proof of foundational
evidence being led, the onus gets shifted to accused to prove the contrary in order to
discharge the reverse burden of proof, as contemplated in Section 29 of the POCSO.
It has got no direct and automatic application irrespective of the standard of evidence
adduced in a particular case. The statutory presumption thus cannot be taken to be
absolute. “…mere proof of medical evidence, which is nothing more than a
corroborative piece of evidence, would not by itself pave the way for application of
presumption available under Section 29 of the POCSO Act.

3.2.4 It is one of the fundamental principles of criminal jurisprudence that an accused is

presumed to be innocent, till he is proved to be guilty. It is equally well settled that
suspicion, however, strong can never take the place of proof. There is indeed a long
distance between accused “may have committed the offence and must have
committed the offence” which must be traversed by the prosecution by adducing
reliable and cogent evidence. Presumption of innocence has been recognised as a
human right which cannot be whittled down.59

57
Subrata Biswas v. The State (2019) 3 Crl. (Cal) 331
58
Sitaram Das v. State of W.B, 2020 SCC OnLine Cal 522
59
Narendra Singh v. State of M.P. (2004) 10 SCC 699
Page 43 of 55
3.3 What does tearing of hymen signify and no intelligible reason put forth for delay in
lodging the FIR and Loss of evidence due to delay in lodging of the complaint.

3.3.1 The hymen is a small membranous tissue outside of the vaginal canal that has no
known biological function. With regard to the medical report so far as rupture of
hymen is concerned it is not conclusive proof of sexual assault on a lady. To that
extent we may refer to a few paragraphs from Modi’s Medical Jurisprudence
60
"Normally, the hymen is ruptured by the first act of coitus, though it may persist
even after frequent acts of coitus if it happens to be loose, folded and elastic; or thick,
though and fleshy. Cases have been recorded in which the hymen had to be incised at
the time of delivery, while even prostitutes have been known to possess an intact
hymen.

3.3.2 Besides the act of coitus, the hymen may be ruptured in the following cases.
1. An accident, for example, a fall on a projecting substance, fence, or while playing
on a see-saw. The plea that is usually brought forward by the defence pleader in
the case of alleged rape in mofussil courts is that the hymen was ruptured by an
accidental fall on the sharp and obliquely cut remnant of a stem of an arhar plant
projecting 5 or 8 cm above the ground n field. Modi had known of it lacerating
the sole of the foot after penetrating through a shoe, but rupture of the hymen
alone in this manner is highly improbable. Again, forcible separation of the thighs
will not rupture the hymen, especially in children, unless the perineum is
ruptured. Because of the situation of the hymen, its rupture is not possible by
riding, jumping or dancing.
2. Masturbation, especially if practiced with some large foreign body, may rupture
the hymen. However, the hymen is not destroyed in most cases, as the auto-
manipulation is generally limited to parts anterior to the hymen. In such cases, the
nymphae are elongated and the clitoris is enlarged by the continued practice of
masturbation. The hymen is, however, liable to be ruptured by the forcible
introduction of a stick or finger constituting indecent assault on small girls.
3. The insertion of sanitary tampons, particularly if the hymen is a thin elastic
membrane. Ulceration from diphtheria, coma, or other diseases. In such cases, the

Page 44 of 55
60
Modi's Medical Jurisprudence and Toxicology (24th Edition) (page 625)

Page 45 of 55
 whole hymen is destroyed leaving only a scar. Persistent pruritis due to worm
infestation in children is likely to lead to injury of the hymen.61
3.3.3 An examination of the hymen is not an accurate or reliable test of sexual activity,
including sexual assault, except in very specific situations. Clinicians who perform
forensic sexual assault examinations should avoid descriptions such as “intact hymen”
or “broken hymen” in all cases and describe specific clinical findings using specific
medical terminology. The sociocultural significance of the hymen in certain
communities as “proof” of the absence of sexual activity has even led to an intersection
of culture, religion, politics, law, economics, and medicine in the form of “virginity
testing,” which involves the use of a vaginal examination to evaluate whether or not a
woman’s hymen is “intact,” in an attempt to ascertain whether a woman has had sexual
intercourse.62 There is no evidence that examination of the hymen is an accurate or
reliable test of a previous history of sexual activity, including sexual assault. As
discussed, there are many factors that confound whether clinicians can adequately
assess changes to the hymen tissue at various stages of the life cycle, including genetic,
developmental, endocrine, spontaneous, and external influences.63

3.3.4 Since Given that hymen examinations rarely lead to a determination of whether the
hymen or vagina was penetrated by a penis or other object, they have little to no
diagnostic or forensic value.64 It is largely irrelevant because the hymen can be torn due
to several reasons. A torn hymen does not prove previous sexual intercourse. Hymen
should therefore be treated like any other part of the genitals while documenting
examination findings in cases of sexual assault. Only those that are relevant to the
episode of assault (findings such as fresh tears, bleeding, edema etc.) are to be
documented." Justice Verma Committee, the condition of hymen being torn of the
prosecutrix may not necessarily mean a previous sexual intercourse. In some of the
females hymen can also be missing and in such cases also, mere absence of hymen will
not necessarily prove sexual assault.65

61
Litan Sarkar v/s The State of West Bengal 2020 SCC OnLine Cal 248
62
Independent Forensic Expert Group Statement on virginity testing. J Forensic Legal Med. 2015;33:121–
124. Olson RM, García-Moreno C. Virginity testing: a systematic review. Reprod Health. 2017;14:61.
63
Adams JD, Farst KJ, Kellogg ND. Interpretation of medical findings in suspected child sexual Abuse: an
update for 2018. J Pediatr Adolesc Gynecol. 2018;31(3):225–231
64
Mishori R, Ferdowsian H, Naimer K, Volpellier M, McHale T. The little tissue that couldn't - dispelling
myths about the Hymen's role in determining sexual history and assault. Reprod Health. 2019 Jun
3;16(1):74. doi: 10.1186/s12978-019-0731-8. PMID: 31159818; PMCID: PMC6547601.
65
Beeru vs State Nct Of Delhi 2013 Latest Caselaw 5717 Del

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3.3.5 Furthering the intention of the legislature the hon’ble court in the case of 66, this Court
held that a medical expert's opinion is not conclusive as to the existence of any fact:
“The opinion of the Medical Officer is to assist the court as he is not a witness of fact
and the evidence given by the Medical Officer is really of an advisory character and not
binding. Further it is humbly submitted before this hon’ble court that Tearing of
hymen is attributable to fingering and the tear was old one. Therefore, it cannot
be said that it was the appellant/accused, who had committed the offence of
penetrative sexual assault on the minor female victim.

3.3.6 Everyday activities can wear the hymen down or cause it to break. It's important to
know that the hymen is a flexible piece of tissue that gradually wears to the point of
tearing. Once it does tear, you may feel discomfort or notice blood. Some common
activities that can tear your hymen are: -Riding a bike, Gymnastics, Riding a horse,
Climbing on a jungle gym, Vigorous exercise, Masturbation and other physical
activities.67

3.3.7 The rupture of the hymen is possible by many things like riding on bicycle also. The
hymen may even rupture on account of riding bicycle or on account of many other
factors in that young age.68 In this connection, the rupture of hymen is not essential to
constitute the offence of rape. It must be borne in mind that in order to constitute the
offence of rape.69 Hymen may be ruptured other than sexual intercourse.”

3.3.8 Delay in lodging the FIR- First line of argument of the defence is the delay in lodging
FIR. As per the allegations, the incident occurred on 26.01.2014. However, the
complaint has been made by the victim on 06.02.2014. It is stated that there is a delay
of ten days in lodging the FIR. and there is no explanation of the delay in lodging of
FIR and the benefit of doubt of this delay must be extended to the accused. In one such
case the Mother of the victim admits that victim told the incident to her on the night
of alleged

66
Vishnu v. State of Maharashtra (2006) 1 SCC 283
67
Mishori, R., Ferdowsian, H., Naimer, K. et al. The little tissue that couldn’t – dispelling myths about
the Hymen’s role in determining sexual history and assault. (https://reproductive-health-
journal.biomedcentral.com/articles/10.1186/s12978-019-0731-8#citeas) Reprod Health. 16, 74 (2019). 68
Ashraf Ali v. State of Maharashtra, 2002 SCC OnLine Bom 1355
Page 47 of 55
69
Rajib Bhakat v. State of West Bengal, 2009 SCC OnLine Cal 2819

Page 48 of 55
 incident itself but is un- explained for what reasons she did not report the matter to the
police specially when she herself became aware of the incident and gave beatings to the
accused. The fact remains that the mother of victim did not lodge the complaint against
the accused immediately after coming to know the incident despite having opportunity
to do so.70 the court looks for plausible explanation for the delay in lodging the report.
The reason is obvious. Delay sometimes affords opportunity to the complainant to
make deliberation upon the complaint and to make embellishment or even make
fabrications. Delay defeats the chance of the unsoiled and untarnished the version of
the case to be presented before the court at the earliest instance. That is why, if there is
delay in either coming to the police or before to the court, the court always views the
allegation with suspicion and looks for satisfactory explanation. If no such explanation
is found, the delay is treated as fatal to the prosecution case.

3.3.9 In the case of Thulia Kali vs The State Of Tamil Nadu 71 it was held that the delay in
lodging the first information report quite often results in embellishment as a result of
afterthought. On account of delay the report not only gets bereft of the advantage of the
spontaneity but also danger creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of deliberation and consultation.
That the delay in lodging the report would raise considerable doubt regarding the
veracity of the evidence of two witnesses and point to an infirmity in that evidence and
would render it unsafe to base the conviction of the appellant. The first information
report in a criminal case is an extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at the trial The object of insisting
upon prompt lodging of the report to the police in respect of commission of an offence
is to obtain early information regarding the circumstances in which the crime was
committed.

3.3.10 In the case of Hasmukhlal D. Vora vs State of Tamil Nadu,72 the supreme court
observed that an unexplained or an inordinate delay can be considered very crucial for
quashing a criminal complaint with regards to sexual assault as well. The law is meant
to exist as a shield to protect the innocent rather than it being used as a sword to
threaten them, the bench in the pertaining case observed the aforesaid. The facts
included that “ here has been a gap of more than four years between the initial
investigation and the

Page 49 of 55
70
SC No: 106A/14 State vs . Rajesh Kumar
71
Thulia Kali vs The State Of Tamil Nadu 1973 AIR 501
72
Hasmukhlal D. Vora vs State of Tamil Nadu, 2022 LiveLaw (SC) 1033

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 filing of the complaint, and even after lapse of substantial amount of time, no evidence
has been provided to sustain the claims in the complaint. In fact, the absence of such an
explanation only prompts the Court to infer some sinister motive behind initiating the
criminal proceedings.

3.3.11 The purpose of insisting upon prompt lodging of the F.I.R. before the police with
respect to the commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed. Since the delay in lodging of the
F.I.R. quite often leads to the embellishment, which is a creature of an afterthought,
therefore, it has to be satisfactorily. he delay in lodging the FIR would put the court on
its guard to search if any plausible explanation has been offered and if offered whether
it is satisfactory. It is therefore submitted before this Hon’ble apex court that there
has been a delay of 6 month in lodging the FIR and therefore there is sufficient
chance for embellishment of facts as well as the whole circumstance.

3.3.12 Loss of Evidence - In the case of Pintu vs State Of U.P 73 of 2020 the conviction of the
accused under Section 377 of the Indian Penal Code, 1860 and Section 6 of the POCSO
Act were set aside and one of the reasons was that there was no mark of external injury
around the anus of the victim and the Allahabad High Court opined that in case of a
sexual assault on a boy of 7 years old by a person aged 23 years, there should have
been some kind of external injury. The spermatozoa can be identified only for 72 hours
after assault. So if a survivor has suffered the assault more than three days ago, please
refrain from taking swabs for spermatozoa. In such cases swabs should only be sent for
tests for identifying semen. Evidence on the outside of the body and on materials such
as clothing can be collected even after 96 hours . Forensic evidence is likely to be
found only up to 96 hours after the incident.74

73
Pintu vs State Of U.P Criminal Appeal No. 667
74
State (NCT of Delhi) v. Anil (2016),
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 ISSUE 4:

WHETHER THE ACCUSED IS GUILTY OF THE OFFENCE OF CRIMINAL

INTIMIDATION ENLISTED UNDER THE HINDANIA PENAL CODE, 1860

4.1 Rejecting the claims of criminal intimidation.

4.1.1 Section 506 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) prescribes
punishment for the offence of criminal intimidation. “Criminal intimidation” as
defined in Section 503 IPC is that—Whoever threatens another with any injury to his
person, reputation or property, or to the person or reputation of any one in whom that
person is interested, with intent to cause alarm to that person, or to cause that person
to do any act which he is not legally bound to do, or to omit to do any act which that
person is legally entitled to do, as the means of avoiding the execution of such threat,
commits criminal intimidation. Explanation. —A threat to injure the reputation of any
deceased person in whom the person threatened is interested, is within this section.

4.1.2 The Supreme Court in Manik Taneja and Another v. State of Karnataka and
Another75 held that ‘the threat must be with intention to cause alarm to the
complainant to cause that person to do or omit to do any work. Mere expression of
any words without any intention to cause alarm would not be sufficient to bring in the
application of this section. But material has to be placed on record to show that
the intention is to cause alarm to the complainant. Further in the case of S.
Ramesh v. State Through the Inspector of Police76, the apex court had held that The
only allegation that has been made against the petitioner is an oral threat and nothing
more. Section 503 IPC defines the criminal intimidation. The intention must be to
cause alarm to the victim and materials have to be brought on record to show that the
intention was to cause alarm to the person. A mere threat is not sufficient to attract the
charge of criminal intimidation. In other words, the threat should be a real one and not
just a mere word.

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75
Manik Taneja and Another v. State of Karnataka and Another 2015 SCC Online 51.
76
S. Ramesh v. State Through the Inspector of Police 2018 SCC OnLine Mad 2563.

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4.1.3 Furthering these contentions in the case of G. Paramasivam v. Dy. Commissioner of
Police77 with regards to the alleged offence under Section 506(ii) I.P.C., is concerned,
as rightly submitted by the learned Senior Counsel, a mere threat per se would not
attract the said provision. The allegation is that the petitioners went to the house of the
fourth respondent and threatened orally by showing their hands. A mere outburst
would not attract Section 506(ii) IPC.

4.1.4 Also, going through the provisions of section 503 (IPC), the Hon’ble High Court of
78
Punjab and Haryana in the case of Surinder Suri v. State of Haryana and others
held that- ‘The gist of the offence is the effect which the threat is intended to have
upon the mind of the person threatened. The threat must be one which can be put into
execution by the person threatening. A threat, in order to be indictable must be made
with intent to cause alarm to the complainant. As for instance mere vague allegation
by the accused that he is going to take revenge by false complaints cannot amount to
criminal intimidation. Furthering this it is already well settled that It is well
settled that mere threat is no offence.79

4.1.5 Therefore, it is humbly submitted before this Hon’ble apex court that the
accused merely had shown a threat and had no intent to act upon such threat
and therefore cannot be inculpated under the provisions of this section 328 of the
Hindania Penal Code, 1860.

77
2016 (1) TNLR 489 (MAD),
78
Surinder Suri v. State of Haryana and others 1996 SCC OnLine P&H 582.
79
Amitabh Adhar & Another v. NCT of Delhi & Another, 2000 SCC OnLine Del 292.
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 PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments advanced and
authorities cited, this Hon’ble Court may be pleased to:
Find that:
1. The petition for Special Leave to Appeal under Article 136 of the Indian Constitution, is
not maintainable;
2. The accused is not guilty under Section 4 of the POCSO Act 2012 for, the girl has made
scrupulous claims with regards to her age and the ossification test so conducted holds no
water thereof.
3. The accused has not committed penetrative sexual assault on the prosecutrix and that has
sufficiently been buttressed due to the lack of evidences as well as a gross delay in the
lodging of the FIR without reasonable ratio.
4. The accused has not criminally intimidated the prosecutrix.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: S/d

Date: COUNSEL FOR THE DEFENCE

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