MOOT COURT AND INTERNSHIP

(CLINICAL PAPER II)

2018-2023
SUBJECT CODE: CLAW 224
Satyarupa
180401410044
B.A. LL.B. (2018-2023)
SESSION: AUGUST 2021-MAY 2022
SUBJECT CO-ORDINATOR: PROF. ABHISHEK SRIVASTAVA

ALLIANCE SCHOOL OF LAW

ALLIANCE UNIVERSITY

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 MCI Moot Problem III Satyarupa
180401410044
B.A. LL.B. (2018-23)
Moot Court and Internship (CLAW 224)
BEFORE THE HON’BLE SUPREME COURT OF INDIA

APPELLATE JURISDICTION
APPEAL NO. ______/2021

UNDER THE ARTICLE 136 and ARTICLE32 OF THE CONSTITUTION OF INDIA.

IN THE MATTER OF

THE CHAIRMAN, RAILWAY BOARD AND ORS…………….......………APPELLANT

V
MRS. CHANDRA BOSE & ORS……………………………………………….RESPONDENT

COUNSEL APPEARING ON BEHALF OF THE APPELLANTS

MEMORIAL ON BEHALF OF THE APPELLANTS

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TABLE OF CONTENTS Page No.

1) INDEX OF AUTHORITIES 6

I. TABLE OFCASES 6

II. STATUTES 7

III. DATABASES 7

2) STATEMENT OF JURISDICTION 8

3) BRIEF FACTS 9

4) STATEMENT OF ISSUES 11

5) SUMMARY OF ARGUMENTS 12

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 6) ARGUMENTSADVANCED:
1. WHETHER HEENA IBRAHAM WHO IS A FOREIGNER AND NOT AN INDIAN
CITIZEN IS ENTITLED TO ANY RELIEF / COMPENSATION UNDER 13
CONSTITUTION OF INDIA? 13
1.1.THE CONSTITUTION AND THE FOREIGN NATIONAL 14
1.2 CONSENT OF RAPE UNDER IPC
15
1.3 REMEDY IN PRIVATE LAW NOT IN PUBLIC LAW

2. WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE 17

PERSON CONCERNED, WOULD MAKE THE RAILWAY OR THE UNION OF

INDIA LIABLE TO PAY COMPENSATION TO THE VICTIM OF THE OFFENCE 17
ON THE GROUND OF VICARIOUS LIABILITY? 17
2.1. COMMISSION OF OFFENCE IS AN INDIVIDUAL ACT
2.2. ESSENTIALS OF VACARIOUS LIABILITY
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2.3. AN ILLEGAL ACT DOES NOT MAKE EMPLOYER LIABLE
3. WHETHER THE ACCUSED SUNIL SHARMA (AGE 16 YEARS BOY) CAN BE
TREATED AS AN ADULT FOR THE OFFENCE OF GANG RAPE?
3.1. THE AGE OF THE ADULT REDUCED TO 16 IN THE CASE OF 20
HEINOUS CRIME 21
3.2. DIFFERENTIATION OF AGES UNDER DIFFERENT LAWS

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7) PRAYER 23

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INDEX OF AUTHORITIES

I. Table ofCases:

Tukaram v. State of Maharashtra 1979 AIR 185, 1979 SCR (1) 810

The Chairman, Railway Board &Ors 2000

vs Mrs. Chandrima Das &Ors

Dharangandhara Chemical Works v 1957 AIR 264, 1957 SCR 152

State of Saurashtra

Lakshmi Prasad &Anr. vs. Shiv Pal & AIR 1974

Others

Sk. Md. Soleman vs. State of West AIR 1965

Bengal and Another

Anwar vs. State of J & K AIR 1971

Sk. Md. Soleman vs. State of West AIR 1965

Bengal and Another

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Armstrong v. Food Lion SC 271(2006)

State vs . Ram Singh And Another S C 114/2013

II. Statutes:

1. Constitution of India,1950
2. Indian penal code 1860.
3. The Juvenile Justice (Care And Protection Of Children) Act, 2015

III.Databases:

1. www.casemine.com
2. www.indiankanoon.com

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zz

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction to entertain this under art 132 (1) An
appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court
in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under article 134A that the case involves a substantial question of law as to the
interpretation of this Constitution.

(2) Where such a certificate is given, any party in the case may appeal to the Supreme Court on
the ground that any such question as aforesaid has been wrongly decided.

The Appellant most humbly submits to this jurisdiction

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STATEMENT OF FACTS

1. HeenaIbraham, a citizen of Bangladesh came to India on official duty in the month of

December 2016. Before returning to Bangladesh, she wanted to visit Ajmer Sharif. With
that intent in mind, she arrived at Calcutta on 24th December, 2016 and stayed at a hotel
at 10, Sudder Street, Police station Taltola.
2. She arrived at Howrah Railway Station on 1st Jan, 2017 at about 14.00 hours to avail
Jodhour Express at 23.00 Hours for paying a visit to Ajmer Sharif. She had, however, a
wait listed ticket and so the approached a Train ticket Examiner at the Station for
confirmation of berth against her ticket. The Train ticket Examiner asked her to wait in
the Ladies Waiting room.
3. She accordingly came to the ladies waiting room and rested there. At about 17.00 hours
on 1st Jan, 2017, two unknown persons (later identified as one Ashoke Singh, a tout who
posed himself as a very influential person of the Railway and Siya Ram Singh a railway
ticket broker having good acquaintance with some of the Staff of Howrah Station)
approached her, took her ticket and returned the same after confirming reservation in
Coach No. S-3 (Berth No.17) of Jodhpur Express.
4. At about 20.00 hours Siya Ram Singh came again to her with a boy named Kashi and
told her to accompany the boy to a restaurant if she wanted to have food for the night.
Accordingly at about 21.00 hours she went to a nearby eating house with Kashi and had
her meal there. Soon after she had taken her meal, she vomited and came back to the
Ladies Waiting room.
5. At about 21.00 hours Ashoke Singh along with Rafi Ahmed a parcel Supervisor at
Howrah Station came to the Waiting Room before boarding the train. She appeared to
have some doubt initially but on being certified by the lady attendants engaged on duty at
the Waiting Room about their credentials she accompanied them to Yatri Niwas. Sitaram

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 Singh, a khalasi of electric Department of Howrah Station joined them on Yatri Niwas.

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6. She was taken to room No.102 on the first floor of Yatri Niwas. The room was booked in
the name of Ashoke Singh against Railway Card pass no. 3638 since 30th Dec, 2016. In
room no.102 two other persons namely, one Lalan Singh, Parcel Clerk of Howrah
Railway Station and Awdesh Singh, Parcel Clearing Agent were waiting.
7. HeenaIbraham suspected something amiss when Ashoke Singh forced her into the room.
Awdesh Singh bolted the room from outside and stood on guard outside the Sunil Sharma
(Age 16 years boy helper in railway on contract basis) took liquor inside the room and
also forcibly compelled her to consume liquor.
8. All the five persons who were present inside the room brutally violated, and committed
gang rape on HeenaIbraham, who was in a state of shock and daze. When she could
recover, she managed to escape from the room of Yatri Niwas and came back to the
platform where again she met Siya Ram Singh and found him talking to Ashoke Singh.
9. Seeing her plight Siya Ram Singh pretended to be her saviour and also abused and
slapped Ashoke Singh. Since it was well past midnight and Jodhpur Express had already
departed, Siya Ram requested HeenaIbraham to accompany him to his residence to rest
for the night with his wife and children.
10. He assured her to help entrain Poorva Express on the following morning. Thereafter
Siyaram accompanied by Ram Samiram Sharma, a friend of siyaram took her to the
rented flat of Ram Samiram Sharma at 66, pathuriaghata Street, Police Station Jorabagan,
Calcutta. There Siyaram raped HeenaIbraham and when she protested and resisted
violently Siyaram and Ram Samiran Sharma gagged her mouth and nostrils intending to
kill her as a result Heena bled profusely.
11. On being informed by the landlord of the building following the hue and cry raised by
HeenaIbraham, she was rescued by Jorabagan Police.”

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STATEMENT OF ISSUES

ISSUE I

Whether Heena Ibrahim who is a foreigner and not and Indian citizen is entitled to any
relief/ compensation under Constitution of India?

ISSUE II

Whether the commission of an offence like rape by the person concerned would make the
railway or the Union of India liable to pay compensation to the victim of the offence
on the ground of vicarious liability?

ISSUE III

Whether the accused Sunil Sharma (age 16 years boy) can be treated as an adult for the
offence of gang rape?

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SUMMARY OF ARGUMENTS

ISSUE ONE: WHETHER HEENA IBRAHAM WHO IS A FOREIGNER AND NOT AN

INDIAN CITIZEN IS ENTITLED TO ANY RELIEF / COMPENSATION UNDER
CONSTITUTION OF INDIA?

It is humbly submitted to the court that fundamental rights are mostly granted to the citizens of
India but certain rights are granted to both the citizens and foreign nationals not an enemy alien.
The victim cannot get compensation under public law like constitution because it was an act of
individual person so he may liable to pay compensation.

ISSUE TWO: WHETHER THE COMMISSION OF AN OFFENCE LIKE RAPE BY THE

PERSON CONCERNED, WOULD MAKE THE RAILWAY OR THE UNION OF INDIA
LIABLE TO PAY COMPENSATION TO THE VICTIM OF THE OFFENCE ON THE
GROUND OF VICARIOUS LIABILITY?

It is humbly submitted that the commission of rape is an individual act of the employee, it is out
of the scope of employment there is no vicarious liability of railway or union India. They were
not responsible for payment of compensation. Even the victim was not forced by any persons to
come with yatri niwas. It was a willful act of the victim.

ISSUE THREE: WHETHER THE ACCUSED SUNIL SHARMA (AGE 16 YEARS BOY)
CAN BE TREATED AS ANDULT FOR THE OFFENCE OF GANG RAPE?

It is humbly submitted to the court that the age of adult reduced in JJ Act 2015 to 16 years but in
practical most of provisions said the majority Age is 18, in JJ Act also the definition of child is
below eighteen years. So the age eighteen was considered mostly number there were no maturity
in the person. The offence of crime done by the juvenile cannot be same as adults.

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ISSUE ONE: WHETHER HEENA IBRAHAM WHO IS A FOREIGNER

AND NOT AN INDIAN CITIZEN IS ENTITLED TO ANY RELIEF /
COMPENSATION UNDER CONSTITUTION OF INDIA

It is humbly submitted to the honourable court that the foreign national does have
the same rights as citizens of India have and validate the sec.375(2) and sec 90 of
IPC consent of rape.

[1.1] The constitution and the foreign national:

According to Indian constitution not all fundamental rights are available to foreign
national like art-15, 16, 19 29 that are available only to citizens of India. The
foreigner cannot file a writ petition in respect of those rights which are guaranteed
only to the citizens of India.Anwar vs. State of J & K1,it was held that non-citizen
could not claim Fundamental Rights under Article19.  Lakshmi Prasad &Anr. vs.
Shiv Pal & Others2, it was held that Article 19 does not apply to a "foreigner".
The Calcutta High Court in Sk. Md. Soleman vs. State of West Bengal and
Another3, held that Article 19 does not apply to a Commonwealth citizen. There
1
Anwar vs. State of J & K, AIR 1971 SC 337.
2
Lakshmi Prasad &Anr. vs. Shiv Pal & Others, AIR 1974 Allahabad 313
3
Sk. Md. Soleman vs. State of West Bengal and Another, AIR 1965 Calcutta 312

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are certain fundamental rights are available to both the citizens and the foreign
national. Like art-14, 20, 21, 21-A, 22, 23, 24,25, 26,27 and 28 are available to

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available to all persons whether citizens or foreigners.

[1.2] Consent of Rape under IPC:

Section 90 of the Indian penal Code defines consent broadly and negatively,
whereas Section 375 defines it specifically for the offense of rape. In cases of rape,
both sections must be read together, with the latter specific provision superseding
the former according to established statutory interpretation rules.

According to Indian Penal code Section 90 states that “Consent is not consent in
the sense intended by any section of this Code if it is given by a person under fear
of injury or under a misconception of fact, and the person doing the act knows or
has reason to believe, that the consent was given as a result of such fear or
misunderstanding.”

Explanation 2 of Section 375 states that, “Consent means an unequivocal voluntary

agreement when the woman communicates her willingness to participate in the
specific sexual act via words, gestures, or any other form of verbal or nonverbal
communication. In this case Tukaram v. State of Maharashtra4 the Supreme
Court held that the essence of the victim’s consent had to be decided by the
circumstances, and the circumstances clearly showed that the consent was not
“passive.” There was no harm or injury on the girl’s body, and it was impossible to

4
Tukaram v. State of Maharashtra 1979 AIR 185, 1979 SCR (1) 810

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conclude that she had been subjected to or was under some fear or compulsion that
would justify a conclusion of “passive submission.” The accused’s appeal against

the high court’s judgment was accepted, and the Supreme Court overturned the

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High Court’s decision, as well as the appellants’ conviction order. The Supreme
Court upheld the Session Judge’s opinion, ruling that this was a case of voluntary
sexual intercourse. Like the same was happened in the present case also facts
clearly shows that her berth was confirmed and the time of the train at 23:00 hrs.
but at 21:00 why she was going along with her credentials with Ashok sigh. No
one is forced her to come with ashok sigh she voluntarily expressed his consent in
the way of gestures. It was a voluntary non fit injuria so she cannot claim under
tort also.

[1.3.] Remedy in private law not in public law

In this case The Chairman, Railway Board &Ors vs Mrs. Chandrima Das
&Ors5 stated that the remedy lay in the domain of Private Law and not under
Public Law and, therefore, no compensation could have been legally awarded by
the High Court in a proceeding under Article 226 of the Constitution and, that too,
at the instance of a practising advocate who, in no way, was concerned or
connected with the victim. In the light of the above case laws clearly stated that
express consent was given by the respondent and also she could not get remedy
under public law i.e. constitution. Further, She cannot claim any relief under
constitution reason because it was an individual act of the person not an public
body held be liable.
5
The Chairman, Railway Board &Ors vs Mrs. Chandrima Das & Ors on 28 January, 2000

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It humbly requested that the Hon’ble court to seek the respondent fault and to
secure and deliver justice by grant relief to the appellant.

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ISSUE TWO: WHETHER THE COMMISSION OF AN OFFENCE LIKE

RAPE BY THE PERSON CONCERNED, WOULD MAKE THE RAILWAY
OR THE UNION OF INDIA LIABLE TO PAY COMPENSATION TO THE
VICTIM OF THE OFFENCE ON THE GROUND OF VICARIOUS
LIABILITY.

It is humbly submitted to the Hon’ble court validate the commission of offence

was done by individual act and union of India was not held liable.

[2.1.] Commission Of Offence Is an Individual Act:

Every person is liable for acts, the person commits and not liable for the acts done
by others but in some situations when a person is liable for the acts of another
person is known as vicarious liability. So, for this to happen there must be a
specific kind of relationship between both the people and the act must be
connected with the relationship. These relationships can be of a master and servant
or principal and agent.

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[2.2.] The essentials of vicarious liability are:

 There must be a certain type of relation between the parties.

 The wrongful act must be committed by another person.
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 The wrongful act must happen during the course of employment.

 The actions of the employees related to the term of his employment are
considered as the scope of employment. The scope changes through the
requirements of the job and the number of people are required to do the job.
There are situations where a worker is not working under the scope of
employment.
[2.3.] An Illegal Act Does Not Make Employer Liable:

Any illegal act is not under the scope of employment. So, any harm caused by the
illegal act is mostly not considered as the employer’s liability.

When an employee performs an activity that is neither directed nor controlled by

the employer, the employee is not in the scope of employment. In this situation, if
the employee engages in any wrongful tortious activity, the employer is not liable
for the damages.

For example, A is the driver of B, after dropping B to his office A left the office
premises to meet his friend C with B’s car. A picked up C, they went for a drive
and had an accident. Z was injured in the accident. In this situation, B is not liable
for any damages because B had no idea of A’s plan and A was not in any course of
employment given by B. In the instant case Dharangandhara Chemical Works v
State of Saurashtra6, it was held that sometimes this condition needed to be
6
Dharangandhara Chemical Works v State of Saurashtra 1957 AIR 264, 1957 SCR 152

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diluted because it was not always possible to fulfill all the conditions
simultaneously. But the control of the master wouldn’t be diluted, and he’ll be
liable for the acts of the servant.

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In the case of Armstrong v. Food Lion7, 371 S.C. 271, 639 S.E.2d 50 (2006), the
Supreme Court held a supermarket retailer was not liable for an attack upon a
customer by employees while the customer was in the store. The Court determined
that while the employee was on duty at the time of the incident, his actions were
outside the scope of his employment. Accordingly, the store was not responsible
via the doctrine of respondent superior or vicarious liability. T

In this case The Chairman, Railway Board &Ors vs Mrs. Chandrima Das
&Ors8held that the Central Govt. cannot be held vicariously liable for the offence
of rape committed by the employees of the Railways. It was contended that the
liability under the Law of Torts would arise only when the act complained of was
performed in the course of official duty and since rape cannot be said to be an
official act, the Central Govt. would not be liable even under the Law of Torts.

In the light of the above-mentioned case laws the railway or union of India was not
held liable to pay compensation to victim. It is an individual act the accused may
be punished or given compensation to victim.

7
Armstrong v. Food Lion , 371 S.C. 271, 639 S.E.2d 50 (2006)
8
The Chairman, Railway Board &Ors vs Mrs. Chandrima Das & Ors 2000

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It is humbly requested the Hon’ble court to take into consideration and seek the
respondent fault and to secure and deliver justice by grant relief to the appellant.

ISSUE THREE: WHETHER THE ACCUSED SUNIL SHARMA (AGE 16

YEARS BOY) CAN BE TREATED AS AN ADULT FOR THE OFFENCE
OF GANG RAPE

It is humbly requested the hon’ble court to validate the The Juvenile Justice (Care
And Protection Of Children) Act, 2015 defines the child is person who has not
attained the age of 18 years.

[3.1.] The Age of Adult Is Reduced To 16 In The Case Of Heinous Crime:

The amended Act distinguishes children in the age group 16-18 as a category
which can be tried as adults if they are alleged to have committed a heinous
offence — one that attracts a minimum punishment of seven years. The Act does
not, however, make it mandatory for all children in this age group to be tried as
adults.

“There should be no change in the age of juveniles. If a juvenile commits crime

(like rape or murder), it is the failure of the system. Punishing a child like an adult
can’t be approved. Crimes of a monstrous nature are never committed by a juvenile

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alone. He/she has the support of adults,” says Nina P Nayak, member of the
National Commission for Protection of Child Rights (NCPCR). According to the

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child rights activist, YaminiAbde “the urge to do something different,

daring,extraordinary filled with thrill is one of the driving forces behind the minors
getting involved in heinous crimes like rape and murder. Peer pressure, desire for
easy money, access to internet videos on crimes, and pornographic material.
Increase in aggression and sexual activity in youngsters and the knowledge of the
fact that they will not be punished under the criminal system for them being
juveniles. This absence of fear with regards to punishment has led to an increase in
the crime rate among juveniles.”

[3.2.] Differentiation Of Ages Under Different Laws:

In terms of the definition of a child, India doesn’t have uniformity even though it is
a signatory to the Convention on the Rights of the Child (CRC), 1989, Article 1,
which clearly states a child means every human being below the age of 18 years. In
India, majority is attained at 18. But, a child labourer is a person below the age of
14. The Constitution of India, in the Fundamental Rights and the Directive
Principles of State Policy, prohibits child labour below the age of 14 years.

In the case of nirbaiya9The Supreme Court upheld the capital punishment for the
four convicts – Akshay Thakur, Vinay Sharma, Pawan Gupta, and Mukesh
labelling the act as barbaric and devilish. The fifth accused member of the
gangrape accused, Ram Singh was found hanging in his cell in Tihar jail in 2013
while the sixth minor member was just sent to the reformation facility for 3 years.
9
State vs . Ram Singh And Another S.C. 114/2013

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In the case of kairana, A 15 year old boy on 12 February, 2018 raped a 6 year old
girl who was his neighbour in Shamli district by luring her. Juvenile Court at
Kairana held the accused to be guilty and sent him to a correction home for 3 years
with no imposition of fine as he was below 16 years old, under Section 376 of the
Indian Penal Code along with Section 7 of the Protection of Children from Sexual
Offences Act.

In light of the case laws the child is between the age of 16-18 can be treated as
adults but they did got enough maturity to do that act. In the present case the age of
the juvenile is not completed the age 16. So, he cannot treated as adults.

It is humbly requested the hon’ble court to take into consideration and to seek the
respondent fault and to secure and deliver justice by grant relief to the appellant.

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PRAYER

WHEREFORE, in the light of the issues raised, arguments advanced and authorities
cited, it is most humbly prayed before this Hon’ble Supreme Court of Hind that it
may be pleased to:

1. Uphold the appellant petition was maintainable under 132 of appellant

jurisdiction.
2. Observe and uphold the rape was by the consent of respondent.
3. Reject the validity of the judgments issued by the Hon’ble High Court.
4. Reject the respondent’s claim of vicarious liability of the union of India.
5. Reject the Respondent defense of art-21 right to live and protection of life and
personal liberty was affected and allow appellant was not liable to pay compensation
to the victim.
6. Grant the costs of this case and the damages incurred by the Respondent.

AND/OR
Pass any other order, which this Hon’ble Court may deem fit in light of justice,
equity and good conscience.

All of which is most humbly and respectfully submitted

The chairman, Railway Board &ors

(Petitioner)

THROUGH

Satyarupa

(Counsel for the Petitioner)

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