1. That the appeal under Art. 134 of the Constitution of India is not maintainable.

If the certificate does not mention the particular article to appeal, the certificate contemplated
under Article 134-A of the Constitution can only be a certificate which is referred to in clause
(1) of Article 132 or in clause (1) of Article 133 or in sub-clause (c) of clause (1) of Article
134 of the Constitution. This is quite obvious from the language of Article 134-A of the
Constitution. This case falls under sub-clause (c) of Article 134(1) as it is a criminal
proceeding.1
While Sub-clauses (a) and (b) of Article 134(1) of the Constitution confer upon the accused
an absolute right of appeal, Clause (c) confers upon the High Court a discretion to grant a
certificate to the accused to appeal in cases not falling under Sub-clauses (a) and (b). The
grant of certificate under Article 134(1) (c) is not a matter of course. The certificate is granted
only where there has been an infringement of the essential principles of justice or there is
substantial question of law or principle involved; in short the certificate would not be granted
unless there are exceptional and-special circumstances. The Supreme Court has also held that
the conditions pre-requisite for the exercise of the discretionary power to grant a certificate
under Article 134(1)(c) cannot be precisely formulated but it should be exercised sparingly
and not to convert the Supreme Court into an ordinary court of criminal appeal.2
1.1 There has not been violation of essential principle of justice.
The case was heard by the Trial Court initially, the appellants arguments were heard in
conformity with the basic principle of natural justice.3 The accused gave his statement in
presence of Chief Judicial Magistrate of Moba District, Lawyer of Defence and Prosecution
and on oath.4
Natural justice cannot be fixed on a rigid frame and fundamental fairness is not unresponsive
to circumstances. The very fact that the subject matter is not fraught with loss of life or long
incarceration and that the appellate or revisionary authority is a high tribunal which has
examined the materials are an assurance of competent and conscientious consideration of the
facts and the law..5
1.2. There will be wastage of time of the Honourable Court
Further protection at the third deck by calling for the records or launching on long
ratiocination is a waste of judicial time. Our rules of criminal procedure and those of other
countries with mature systems of justice provide for dismissal at the third level without
assigning written reasons, not because there are no reasons, but because the tardy need to
document them hampers the hearing of the many cases in the queue that press upon the time
of the court at that level.6

1
State Bank of India v. S.B.I. Employees' Union, (1987) 4 SCC 370
2
Rajendra Singh Yadav vs Chandra Sen And Ors., AIR 1979 SC 882
3
¶14, Moot Proposition
4
Exibit - III
5
Rajendra Singh Yadav vs Chandra Sen And Ors., AIR 1979 SC 882
6
Rajendra Singh Yadav vs Chandra Sen And Ors., AIR 1979 SC 882
We must clarify that very right of appeal does not carry with it all the length of getting the
record, hearing both sides and giving full reasons for decisions. Then the institutions of
justice will come to a grinding halt.7
1.3 The certificate should be revoked
Going to the basics, an appeal "is the right of entering a superior court and invoking its aid
and interposition to redress the error of the court below.... An appeal, strictly so called, is one
"in which the question is, whether the order of the court from which the appeal is brought
was right on the materials which that court had before it" 8 A right of appeal, where it exists, is
a matter of substance, and not of procedure9 Thus, the right of appeal is paramount, the
procedure for hearing canalises so that extravagant prolixity or abuse of process can be
avoided and a fair workability provided. Amputation is not procedure while pruning may be.
Of course, procedure is within the Court's power but the appeal is a remedial right and if the
remedy is reduced to a husk by procedural excess, the right became a casualty. That cannot
be.10
Article 134-A was enacted to make good the said deficiencies. Article 134-A does not
constitute an independent provision under which a certificate can be issued. It is ancillary to
Article 132(1), Article 133(1) and Article 134(1)(c) of the Constitution. That is the reason for
the use of words “if the High Court certifies under Article 134-A” in Article 132(1) and
Article 133(1) and for the use of the words certifies under Article 134-A in Article 134(1)(c).
The High Court can issue a certificate only when it is satisfied that the conditions in Article
132 or Article 133 or Article 134 of the Constitution as the case may be are satisfied.11
Hence the appeal filed by the appellant does not stand the requirement of appeal under Art.
134 (1) ( c ) of the Constitution of Abibi, 1950. There has not been violation of natural justice
and hence to prevent the precious time of the Honourable Court the appeal should be
dismissed.

Whether Adil is liable under section 124A.

1)It is submitted that the contentious blog posted by Adil targeting other religions especially
Hinduism, questioning the secularity of the Republic of Abibi and rewriting the Constitution
of Abibi amounts to sedition under section 124A of the IPC, 1860.

2)sedition under section 124A IPC, 1860 as follow-

124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, the Government established by law in India shall be
punished with [imprisonment for life, to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added, or with fine.
7
Rajendra Singh Yadav vs Chandra Sen And Ors., AIR 1979 SC 882
8
Lord Davey, Ponnamma v. Arumogam, (1905) A.C. 390
9
(Colonial Sugar Refining Co. v. Irving, (1905) AC 369; Newman v. Klausner, (1922) 1 K.B. 228
10
Rajendra Singh Yadav vs Chandra Sen And Ors., AIR 1979 SC 882
11
State Bank of India v. S.B.I. Employees' Union, (1987) 4 SCC 370
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government
with a view to obtain their alteration by lawful means, without exciting or attempting to
excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of
the Government without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section.

The essentials of the offence under S. 124A are:

1. Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite
disaffection towards, the Government of India.
2. Such act or attempt may be done (i) by words, either spoken or written, or (ii) by signs, or
(iii) by visible representation.12
The descriptions which the Indian Penal Code gives are that the term ―disaffection includes
disloyalty and all feelings of hate.
In Kedar Nath v. state of Bihar13 in which for the very first time scope of sedition as a penal
offence was laid down and it was held that the gist of the offence of sedition is “incitement to
violence” or the “tendency or the intention to create public disorder.
3)In the present case Adil has incited violence by posting seditious contents on his blog
which was only alleged to happen and there was no such valid proof of the alleged incidents.
Adil, in his blog, highly criticised this behaviour against his community and targeted other
religions especially Hinduism14 and in relation to these cases and questioned the
“SECULARITY” of the “Republic of Abibi” 15. He rewrote the Preamble of the Constitution 16
of Abibi removing some of the objectives –‘secular’, ‘social justice’, ‘liberty of thought,
expression and worship’, ‘equality of status and opportunity’, ‘dignity of individual’,
specified in the Preamble. The act of posting such a blog without any reasonable doubt bring
into hatred towards the government establish by law.
4) This Court in the case of Kedar Nath Singh v. State of Bihar 17 understood the term
‘Government establish by law’ in the following way:-
….the expression ‘government established by law’ has to be distinguished from the persons
for the time being engaged in carrying the administration. ‘Government established by law’ is
the visible symbol of the state. The very existence of the state will be in jeopardy if the
government established by law is subverted.
Consequently the ‘government established by law’ referring to party in power, and referring
to the symbol of the state, must be distinguished. The target must now be the institution of
12
Pillai, Criminal Law 1131( K.I.Vibhute Edn. 2009)
13
1962 Supp. (2) S.C.R. 769],
14
¶8, Moot Proposition
15
Id.
16
Id.
17
[1962] SCR Supp. (2) 769
governance, that is, republican democracy, embodied by various elements of the
Constitution’s basic structure18. The objectives specified in the preamble contain the basic
structure of the Constitution, which cannot be amended even in exercise of power under
article 368 of the Constitution.19 Therefore rewriting the constitution and questioning the
secularity, hence targeting the institution of governance leads to bringing hatred with required
intention towards the government established by law.
5) Further Adil’s blog post not only injured the sanctity of the constitution of Abibi by
falsifying the written text, making misleading & ambiguous statements targeting only a
particular community or religion20. Moreover his blog post resulted in national level
communal riots and aggression among the people. 21 In one major communal riot was suffered
by the city of Moba, Abibi on August 21, 2019 in which a mass tried to destroy one of the
oldest temples of Shri Ram Chandra Bhagwan22, leading to a clash between two groups
which resulted in the death of 164 people and left 343 injured. 23 Seeing this amid unrest in
various regions of the country, one of the major regions being the city of Moba, the Executive
Magistrate of the Metropolitan issued a public order on August 23, 2019 under Section 144 of
Criminal Procedure Code, 1973.24 These instances without any reasonable doubt show the
public disorder in the Abibi as a result of the blog posted by the Adil, which is having
tendency to create disorder.
6) A view was taken by the United States Supreme Court in the case of Snyder v. Phelps 25,
wherein Mr. John G. Robert, Chief Justice said:
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow,
and … inflict great pain. Hence, it is to be delivered rightfully.”
Sedition has been described as disloyalty in action, and the law considers as sedition all those
practices which have for their object to excite discontent or dissatisfaction, to create public
disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the
Government, the laws or constitutions of the realm, and generally all endeavours to promote
public disorder.26 The security of the State, which depends upon the maintenance of law and
order is the very basic consideration upon which legislation, with view to punishing offences
against the State, is undertaken. Such legislation has, on the one hand, fully to protect and
guarantee the freedom of speech and expression, which is the sine quo non of a democratic
form of Government that our Constitution has established. … But the freedom has to be
guarded against becoming a licence for vilification and condemnation of the Government
established by law, in words, which incite violence or have the tendency to create public
disorder. A citizen has a right to say or write whatever he likes about the Government, or its

18
Gautam Bhatia, Offend, Shock, or Disturb: Free Spech under the Indian Constitution, 99, (Oxford University
Press, New Delhi, 2016 )
19
Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461, Para. 292, 437, 599, 682, 1164
20
¶ 10, Moot Proposition
21
Id.
22
¶ 11, Moot Proposition
23
Id.
24
Id.
25
562 U.S. 443 (2011)
26
Nazir Khan & Ors. v. State of Delhi, AIR 2003 SC 4427.
measures, by way of criticism or comment, so long as he does not incite people to violence
against the Government established by law or with the intention of creating public disorder.27
7) For any person to be booked under Section 124A it is essential that the act alleged to have
committed has been committed with an intention of creating public disorder or has incited
violence. The relevant part of the Kedar Nath case28 judgment reads thus:
“..The provisions of the sections read as a whole, along with the explanations, make it
reasonably clear that the sections aim at rendering penal only such activities as would be
intended, or have a tendency, to create disorder or disturbance of public peace by resort to
violence. As already pointed out, the explanations appended to the main body of the section
make it clear that criticism of public measures or comment on Government action, however
strongly worded, would be within reasonable limits and would be consistent with the
fundamental right of freedom of speech and expression. It is only when the words, written or
spoken, etc. which have the pernicious tendency or intention of creating public disorder or
disturbance of law and order that the law steps in to prevent such activities in the interest of
public order. So construed, the section, in our opinion, strikes the correct balance between
individual fundamental rights and the interest of public order.29
8) It is also well settled that in interpreting an enactment the Court should have regard not
merely to the literal meaning of the words used, but also take into consideration the
antecedent history of the legislation, its purpose and the mischief it seeks to suppress. The
Bengal Immunity Company Limited v. The State of Bihar 30 and R.M.D. Chamarbaugwalla v.
The Union of India31. Viewed in that light, we have no hesitation in so construing the
provisions of the sections impugned in these cases as to limit their application to acts
involving intention or tendency to create disorder, or disturbance of law and order, or
incitement to violence.”32
9) Hence in the instant case when appreciated in the light of the above cases cited it is clear
that there was seditious speech uttered by the petitioner and also the commotion caused in the
rest of alibi does amount to act with intention to subvert the government and hence there is
case of act prejudicial to security of State arises.

International instrument

27
Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) S.C.R. 769]
28
Id.
29
Id.
30

31

32
Kedar Nath Singh v. State of Bihar, 1962 Supp. (2) S.C.R. 769
WHETHER THE CONVICTION BY THE SESSIONS COURT AND HIGH COURT
WAS VALID OR NOT
10) The counsel contends the alleged offences has been committed by the Appellant and the
High Court of Moba rightly upheld the conviction of the accused.
1. THERE IS REQUIRED CHAIN OF CIRCUMSTANCES
11) ‘Circumstantial evidences and the testimonial presented herein with’ form the required
chain of circumstances to establish the said offence against the appellant. The circumstances
conclusively prove that all the pieces of the puzzle fit so perfectly that they leave no
reasonable ground for a conclusion consistent with the hypothesis of the innocence of the
appellant, rather the same leads to the irrefutable conclusion that it is the appellant who took
away the victim girl to his hostel room 1025 33, raped her and subsequently caused to death.
Consequently, the conviction of the appellant under Sections 300, 362 & 375 of IPC, 1860
was upheld by the High Court of Moba.
12) Circumstantial evidence to be the sole basis of conviction must satisfy the following
conditions.34
1) The circumstances from which guilt is established must be fully proved;
2) That all the facts must be consistent with the hypothesis of the guilt of the accused;
3) That the circumstances must be of a conclusive nature and tendency;
4) That the circumstances should, to a moral certainty, actually exclude every hypothesis
except the one proposed to be proved.
Circumstances establishing guilt is proved
13) In a case, based on circumstantial evidence, the inference of guilt can be drawn only
when all the incriminating facts and circumstances are found to be incompatible with the
innocence of the accused.35
14) In the instant case the girl was found partially naked with the torn kurta, and in the
partially decomposed state and a multi-coloured dupatta, with mud stains and sand particles.
Two crescent shaped nail abrasion marks measuring 1.5 cm were present on the left side of
the neck and diffused bruises were present obliquely on the right side of the neck. Ligature
marks were present. The hymen was found to be torn. Mucosa of the stomach, small intestine
and large intestine were found congested. 20cm of cylindrical rod has been inserted into it
which has caused the hymnal tear into 3 ‘o’ clock to 8 ‘o’ clock in position.
As per the post mortem report of the dead body the death Expected time was 1-2 days prior to
the date of admission i.e prior to 26.08.2019. The mucosa of the stomach, small intestine and
large intestine were found congested, which establish the highest probability of the death
caused on 24. 08. 2019. As per the statement 1, 2 and 3 of the witness testimonials on 24. 08.
2019 Adil was present in his hostel room. If an offence takes place inside the privacy of a
33
¶12, Moot Proposition
34
Bodha and Ors v State of Jammu & Kashmir, [2002] 8 SCC 45, (SC), [13]
35
Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681
house and in such circumstances where the assailants have all the opportunity to plan and
commit the offence at the time and in circumstances of their choice, A Judge does not preside
over a criminal trial merely to see that no innocent man is punished. A Judge also presides to
see that a guilty man does not escape. Both are public duties.36
Where an offence like murder is committed in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the prosecution, but the nature and amount of
evidence to be led by it to establish the charge cannot be of the same degree as is required in
other cases of circumstantial evidence. The burden would be of a comparatively lighter
character. In view of Section 106 of the Evidence Act there will be a corresponding burden
on the inmates of the house to give a cogent explanation as to how the crime was committed.
The inmates of the house cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to establish its case lies entirely upon
the prosecution and there is no duty at all on an accused to offer any explanation.37
In Gajanan Dashrath Kharate Vs. State of Maharashtra 38 accused and his father Dashrath
were in the house and when the father of the accused was found dead, it was for the accused
to offer an explanation as to how his father sustained injuries. When the accused could not
offer any explanation as to the homicidal death of his father, it is a strong circumstance
against the accused that he is responsible for the commission of the crime."
All the facts must be consistent with the hypothesis of the guilt of the accused
The facts that the two crescent shaped nail abrasion marks measuring 1.5 cm were present on
the left side of the neck and diffused bruises were present obliquely on the right side of the
neck. Ligature marks were present. The hymen was torn and 20cm of cylindrical rod has been
inserted into it which has caused the hymnal tear. These circumstances undoubtedly establish
the abduction with intend rape on the victim and the death was caused with the intention of
causing bodily injury as is likely to cause death39.
Direct testimony of witnesses which is in general material circumstances cannot be discarded
for not being in strict conformity with medical evidence. Minor discrepancies are not material
since they occur due to individual differences. Where minor discrepancies, not going to the
root of the matter, are found in the evidence of the natural and probable witnesses, the
discrepancies should not be over- emphasised.40
That the circumstances are of conclusive nature and circumstances only proposed to
prove the guilt of appellant
It is well settled that in a case based on circumstantial evidence, the circumstances from
which an inference of guilt is sought to be drawn must be cogently and firmly established and
that those circumstances must be conclusive in nature unerringly pointing towards the guilt of
the accused. Moreover all the circumstances taken cumulatively should form a complete
chain and there should be no gap left in the chain of evidence. Further the proved

36
Stirland v. Director of Public Prosecution 1944 AC 315
37
Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 (10) SCC 681.
38
2016 (4) SCC 604
39
Illustarion (a) to section 300, IPC, 1860
40
Balbir Singh v. State of Punjab, AIR 1994 SC 969
circumstances must be consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.41
Appellant in the testimonial before the Chief Judicial Magistrate that he was not in the hostel
for a week, went to my Uncle's place, and in the midst of all this someone is trying to frame
me for these charges. I am nowhere connected to the girl; I've never seen her and I do not
know who she is. All the statements in the witness testimony provide that on 24. 09. 2019
appellant was in his hostel room and the day the charged offences took place. In this way the
appellant’s statements found to be untrue.
In a case based on circumstantial evidence where no eye- witness account is available, there
is another principle of law which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said accused either offers no
explanation or offers an explanation which is found to be untrue, then the same becomes an
additional link in the chain of circumstances to make it complete.42

2. OFFENCES OF ABDUCTION, RAPE HAS BEEN COMMITED

1. THERE IS REQUIRED INTENTION FOR THE ABDUCTION

Abduction is defined under section 362 of the IPC, 1860, that whoever by the force compels,
or by any deceitful means induces, any person to go from any place, is said to abduct that
person. Abduction pure and simple is not an offence. It is an auxiliary act not punishable in
itself, but when it is accompanied by a certain intention to commit another offence, it per se
becomes punishable as offence.43
It is clear from the facts of this case that the victim has been forcefully abducted to the
appellant’s room with intend to rape and subsequently murder. The victim was partially
nacked wearing a white kurta which was torn and a multi-coloured dupatta, with mud stains
and sand particles. Two crescent shaped nail abrasion marks measuring 1.5 cm were present
on the left side of the neck and diffused bruises were present obliquely on the right side of the
neck. Ligature marks were present. The hymen was found to be torn. 20cm of cylindrical rod
has been inserted into it which has caused the hymnal tear into 3 ‘o’ clock to 8 ‘o’ clock in
position. These circumstantial evidences in the post mortem report establish that the victim
has been forcefully abducted to the appellant’s room with intend to rape and subsequently
murder.
The highly probable time for the upheld offences is on 24. 09. 2019 and the appellant were
present at the place of occurrence as per the statement of all witness testimonials. Theory of
‘last seen alive’ comes into play when the time gap between when the accused and the
deceased were last seen together, and the deceased were found dead was so small, that the
possibility of any other person committing the murder becomes impossible. 44Thus on the
principle that the person who is last found in the company of another is dead or missing, the
41
Sharad Viridhi Chandra Sharda Vs. State of Maharashtra 1984 (4) SCC 116.
42
State of Tamil Nadu v. Rajendran (1999) 8 SCC 679
43
K D Gaur, Textbook on Indian Penal Code, 856 (6 th edition Lexis Nexis, 2018)
44
Shakil Ahmed Khan, Ratanlal & Dhirajlal : The Law of Evidence, 562, ( 26th edition, Lexis Nexis, 2017)
person with whom he was last found alive has to explain the circumstances in which he
parted company.45
The prosecution is exempted to prove the exact happening of the incident, as the accused
himself would have special knowledge of the incident thus, would have burden of proof as
per s. 106 of the Evidence Act, 1872.46Though this theory itself is not a conclusive proof but
along with other circumstances surrounding the incident, like non- explanation of the death of
the deceased, may lead to a presumption of guilt.47
The pristine rule that the burden of proof is on the prosecution to prove the guilt of the
accused should not be taken as a fossilised doctrine as though it admits no process of
intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it
impair the temper of the rule. Presumption is a course recognised by the law for the court to
rely on in conditions such as this.48
Presumption of fact is an inference as to the existence of one fact from the existence of some
other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law
of evidence that a fact otherwise doubtful may be inferred from certain other proved facts.
When inferring the existence of a fact from other set of proved facts, the court exercises a
process of reasoning and reaches a logical conclusion as the most probable position. The
above principle has gained legislative recognition in India when Section 114 is incorporated
in the Evidence Act.49
Applying these rules of presumption, Allahabad High Court, in Ashok Kumar & Others v.
State Of U.P.50, observed that, In order to substantiate the conclusion of a valid presumption
against the accused-husband, the onus is on the husband to explain the case of death of a
house wife who is normally residing in the same living place with her husband. This
presumption in terms of Section 106 shifts the burden on the husband as he is in exclusive
possession of the premises and there is no involvement of any outsider. The fact of the
happening of an incident inside the premises is presumed to be in the special knowledge of
the occupier, and it therefore is an onus on the occupier to divulge information about the
incident or otherwise reasonably explain his absence or ignorance about the same.
In Ram Gulam Chaudhary & Ors. v. Sate of Bihar 51, the accused after brutally assaulting a
boy carried him away and thereafter the boy was not seen alive nor his body was found. The
accused, however, offered no explanation as to what they did after they took away the boy. It
was held that for the absence of any explanation from the side of the accused about the boy,
there was every justification for drawing an inference that they have murdered the boy. It was
further observed that even though Section 106 of the Evidence Act may not be intended to
relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases like the present, where the prosecution has
succeeded in proving facts from which a reasonable inference can be drawn regarding death.

45
Kirti Pal v. State of W. B., (2015) 11 SCC 178
46
Shakil Ahmed Khan, Ratanlal & Dhirajlal : The Law of Evidence, 563, ( 26th edition, Lexis Nexis, 2017)
47
(2001) 8 SCC 311
48

49

50

51
(2001) 8 SCC 311
The accused by virtue of their special knowledge must offer an explanation which might lead
the Court to draw a different inference.

2. RAPE HAS BEEN COMMITED BY THE APPELANT

A person inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the uthera or anus of a women or makes her to do so with him or any other person, 52
against her will53, is said to commit rape. The word ‘will’ implies the faculty of reasoning
power of mind that determines whether to do an act or not. 54 This court in State of Uttar
Pradesh v. Chottey Lal,55 held that the expression “against her will” would ordinarily mean
that the intercourse was done by the man with a women despite her resistance and opposition.
Every act done ‘against her will’ is obviously ‘without the consent’. 56 The essence of rape is
the absence of consent. Consent means an intelligent, positive concurrence of the ‘will’ of the
women.57
It is found after post mortem that the victim was partially nacked wearing a white kurta which
was torn and a multi-coloured dupatta, with mud stains and sand particles. Two crescent
shaped nail abrasion marks measuring 1.5 cm were present on the left side of the neck and
diffused bruises were present obliquely on the right side of the neck. Ligature marks were
present. The hymen was found to be torn. Mucosa of the stomach, small intestine and large
intestine were found congested. 20cm of cylindrical rod has been inserted into it which has
caused the hymnal tear. Hymen is a membrane which partially closes the opening of the
vagina58 , which has been torn.
These facts without any reasonable doubt establish that the resistance and opposition was
made by the victim but against her will and without her consent 20 cm cylindrical rod
inserted into the vagina causing the hymen torn and hymnal tear. These circumstances
undoubtedly fulfil the essential under section 375(b) and 375 (1) of the Indian Penal Code,
1860.
The fact of the happening of an incident inside the premises is presumed to be in the special
knowledge of the occupier, and it therefore is an onus on the occupier to divulge information
about the incident or otherwise reasonably explain his absence or ignorance about the same.59
In a case based on circumstantial evidence where no eye- witness account is available, there
is another principle of law which must be kept in mind. The principle is that when an
incriminating circumstance is put to the accused and the said accused either offers no
explanation or offers an explanation which is found to be untrue, then the same becomes an
additional link in the chain of circumstances to make it complete.60

52
Section 375 (b), Indian Penal Code, 1860
53
Clause (1), section 375, Indian Penal Code, 1860
54
Hari Singh Gaur, Penal Law of India, 3611, (11 th edition, Vol. IV, 2000)
55
(2011) 2 SCC 550
56
K D Gaur, Textbook on Indian Penal Code, 887 (6th edition Lexis Nexis, 2018)
57
K D Gaur, Textbook on Indian Penal Code, 889 (6th edition Lexis Nexis, 2018)
58
https://www.lexico.com/en/definition/hymen
59
Ashok Kumar & Others v. State Of U.P.,
60
State of Tamil Nadu v. Rajendran (1999) 8 SCC 679
Hence the appellant’s conviction was rightly upheld for the rape on the victim under section
375 of the IPC, 1860.

3. HOMICIDE COMMITTED AGAINST THE VICTIM AMOUNTS TO

MURDER
The manner of death is homicide.61 Homicide is the highest order of bodily injury that can be
inflicted on a human body. It has from earliest times been considered the most heinous of
offences.62Homicide means the killing of a human being by a human being.63If the death is
most probable result, it is murder.64 If the homicide is caused with the intention of causing
bodily injury as is likely to cause death, to any person, and the bodily injury intended to be
inflicted is sufficient in the ordinary course of time to cause death.65
The expected time of death was highly probable on 24. 09. 2019, on that day appellant was
present at the place of occurrence according to the witness testimonials. Appellant Adil Khan
was arrested from his uncle's house on the same day when after a preliminary search, the
police found a dead body of a girl, partially naked and in a decomposed state, in his hostel
room 1025. ‘When A is accused if a crime. The relevant fact that, soon after the commission
of the crime, A absconded from his house, is relevant, under section 8 of the ‘The Indian
Evidence Act, 1872’, as conduct subsequent to and affected by the facts in issue.’66
The victim was partially necked, wearing a white kurta which was torn and a multi-coloured
dupatta, with mud stains and sand particles. Two crescent shaped nail abrasion marks
measuring 1.5 cm were present on the left side of the neck and diffused bruises were present
obliquely on the right side of the neck. Ligature marks were present. The hymen was found to
be torn. Mucosa of the stomach, small intestine and large intestine were found congested.
20cm of cylindrical rod has been inserted into it which has caused the hymnal tear into 3 ‘o’
clock to 8 ‘o’ clock in position.
Appellant’s, attacking the deceased forcibly and due to insertion of 20 cm rod was pulled out
to the mucosa of the stomach, small intestine and large intestine in the most savage and
inhuman manner that caused grave injuries which ultimately annihilated her life.
R.F. NARIMAN, J.( his lordship at that time), in Manoharan v. State by Inspector of Police,
Variety Hall Police Station, Coimbatore67, emphasised that the accused may not be hardened
criminals; but the cruel manner in which the gang rape was committed in the moving bus;
iron rods were inserted in the private parts of the victim; and the coldness with which both
the victims were thrown naked in cold wintery night of December, shocks the collective
conscience of the society. The present case clearly comes within the category of the rarest of
rare cases where the question of any other punishment is unquestionably foreclosed. If at all
there is a case warranting award of death sentence, it is the present case. If the dreadfulness

61

62
K D Gaur, Textbook on Indian Penal Code, 542, (6th edition Lexis Nexis, 2018)
63
Stephen, A History of the Criminal Law of England, Vol. III, P.1, (1883)
64
Illustration ( d), section 300, IPC, 1860
65
Section 300, IPC, 1860
66
Justice M. R. Mallick, Criminal Manual, The Indian Evidence Act, 1872, section 9, illustration C, 08,
(Professional Book Publishers, New Delhi, 2018)
67
Criminal Appeal Nos. 1174-1175 of 2019 [Arising out of SLP (Criminal) Nos.7581-7582 of 2014)
displayed by the accused in committing the gang rape, unnatural sex, insertion of iron rod in
the private parts of the victim does not fall in the rarest of rare category, then one may
wonder what else would fall in that category. On these reasonings recorded by me, I concur
with the majority in affirming the death sentence awarded to the accused persons.
This Court has held that age of the accused or family background of the accused or lack of
criminal antecedents cannot be said to be the mitigating circumstance. It cannot also be
considered as mitigating circumstance, particularly taking into consideration, the nature of
heinous offence and cold and calculated manner in which it was committed by the accused
persons.68
Society's reasonable expectation is that deterrent punishment commensurate with the gravity
of the offence be awarded. When the crime is brutal, shocking the collective conscience of
the community, sympathy in any form would be misplaced and it would shake the confidence
of public in the administration of criminal-justice system. The Court must respond to the cry
of the society and to settle what would be a deterrent punishment for what was an apparently
abominable crime.69

68
Maharashtra [Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri)
326
69
Om Prakash v. State of Haryana, (1999) 3 SCC 19 : 1999 SCC (Cri) 334