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moot court argument for section 376, Study Guides, Projects, Research of Mock Trial and Moot Court

moot court argument for section 376

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Argument 1: Whether the accused is liable to be punished under Section 376 of Indian
Penal Code, 1860?
Consent was unambiguously given
It is humbly submitted before the hon’ble court that the accused is not punishable for rape under
section 376 of Indian Penal Code, 1860 as the section 375 places focus on “consent” and defines
rape as follows:
375. Rape.—A man is said to commit “rape” if he commits any of the four acts as defined in
Section 375 (a) (b) (c) (d) and under the circumstances falling under any of the following seven
descriptions:
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—
When she is unable to communicate consent.
Consent is defined as “to3agree3to do something, or to3allow3someone to do something”1 Consent
may be express or implied, coerced or misguided, obtained willingly or through deceit.2
1 https://dictionary.cambridge.org/dictionary/english/consent
2 The Indian Penal Code, Ratanlal and Dhirajlal, Lexis Nexis, 36th Edition
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Argument 1: Whether the accused is liable to be punished under Section 376 of Indian Penal Code, 1860? Consent was unambiguously given It is humbly submitted before the hon’ble court that the accused is not punishable for rape under section 376 of Indian Penal Code, 1860 as the section 375 places focus on “consent” and defines rape as follows:

  1. Rape.—A man is said to commit “rape” if he commits any of the four acts as defined in Section 375 (a) (b) (c) (d) and under the circumstances falling under any of the following seven descriptions: First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.— When she is unable to communicate consent. Consent is defined as “to agree to do something, or to allow someone to do something”^1 Consent may be express or implied, coerced or misguided, obtained willingly or through deceit.^2 1 https://dictionary.cambridge.org/dictionary/english/consent 2 The Indian Penal Code, Ratanlal and Dhirajlal, Lexis Nexis, 36th^ Edition

As per the above definition it can be implied that allowance of the prosecutrix is necessary to establish consent. In the case of Uday Singh v. State of Kartnataka, it was held by Justice N. Santosh Hegde & Justice B.P. Singh that “It usually happens when two young persons are madly in love and promise loses all significance, particularly when they are overcome with emotions and passion in weak moments; succumb to the temptation of having sexual relationship. The girl willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. And the appellant for the offence punishable under Section 376 IPC is set aside, and the appellant stands acquitted of the charge.” In the instant case, Riya’s actions clearly portrayed her “will” and “consent” to engage in sexual intercourse as even after learning about Vikram’s marriage, she confessed her love for him^3 then they embraced each other even before Vikram convinced her about his intent to marry her.^4 Hence the consent was unambiguously given to the accused. Non- Applicability of Section 90 of Indian Penal Code, 1860 It is humbly submitted that Section 90 of Indian Penal Code which states “Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.” In the case of Sri Kumaresh Chikkappa Bagodi vs State of Karnatak, the Karnataka High Court clearly stated that: “I am of the view, that the consent in the present nature, based on the promise of marriage does not bring the act of sexual intercourse of the accused with the victim, under the definition of rape under Section 375 Indian Penal Code. Again if we refer to Section 90 Indian Penal Code similar provisions akin to clauses thirdly and fourthly, fifthly are found. It has been interpreted, that if the case falls under any of the clauses, it is not consent at all. Conversely if the 3 Moot Proposition, Page 3, Line 14 4 Moot Proposition, Page 3, Line 22

Kumari who was under the treatment of Dr. Bindu Verma had to buy Cystova Tablet which is used for restoring normal ovulation for infertile women and thus leading to fertility.^5 Hence, it can be proved that Riya Devi was pregnant and that is an act of promiscuity on her part and not an act induced by misconception of facts. Therefore, the accused should not be held liable to be punished under Section 376 of Indian Penal Code, 1860. 5 https://www.netmeds.com/prescriptions/cystova-tablet-10-s