BEFORE THE HONOURABLE HIGH COURT OF BOMBAY AT GOA

CASE NUMBER 69/2024

UNDER SECTION 415 OF THE BHARATIYA NAGARIK SURAKSHA SANHITA,

2023

GAURAV

(The Appellant)

V.

THE STATE OF GOA

(The Respondent)

MEMORIAL FOR THE APPELLANT

COUNSEL ON BEHALF OF THE APPELLANT

AARAV D. PANGAM

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 TABLE OF CONTENTS

I. LIST OF ABBREVIATIONS. 3

II. INDEX OF AUTHORITIES. 4

III. STATEMENT OF JURISDICTION. 5

IV. STATEMENT OF FACTS. 6

V. ISSUES RAISED. 8

VI. SUMMARY OF ARGUMENTS. 9

VII. ARGUMENTS ADVANCED. 10

VIII. PRAYER. 19

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I
LIST OF ABBREVIATIONS

Full Form
Abbreviation
AIR All India Reporter

SCC Supreme Court Reporter

Cri LJ Criminal Law Journal

No. Number

Const. Constitution

Sec Section

Edn. Edition

BNS The Bharatiya Nyaya Sanhita, 2023

BNSS The Bharatiya Nagarik Suraksha Sanhita, 2023

U.T Union Territory

SC Supreme Court

v. Versus

IPC Indian Penal Code

NCT National Capital Territory

P&H Punjab and Haryana

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 INDEX OF AUTHORITIES

a. Cases

Suraj v. State of Haryana 2020(2) RCR (Criminal) 405 (P&H).

Kartar Singh v. State of Punjab (1994) 3 SCC 569.

Sanjay Kumar v. State of NCT of Delhi (2009) SCC Online Del 1996.

State of Madhya Pradesh v. Bablu Natt (2009) 2 SCC 272

Shailesh Jasvantbhai v. State of Gujarat (2006) 2 SCC 359

b. Statutes

1. The Bharatiya Nyaya Sanhita, 2023

2. The Bharatiya Nagarik Suraksha Sanhita, 2023

c. Books

1. Bharatiya Nyay Sanhita: Law & Practice by Prof. Vageshwari Deswal and Adv. Saurabh
Kansal, Taxmann, 2024.

2. Gaur K.D,. Cases and Materials on Criminal Law

3. Srivastava, Elements of Criminal Law

d. Online Database

1. https://advance-lexis-com-vmslaw.knimbus.com/
2. SCC Online® | The Surest Way To Legal Research
3. https://indiankanoon.org/
4. Casemine | Legal & Case Research | US, UK, Indian Judgments and Law | CaseMine

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 STATEMENT OF JURISDICTION

The respondent submits before this Honourable High Court of Bombay under Section 415 of
the Bharatiya Nagarik Suraksha Sanhita, 2023, which grants appellate jurisdiction over matters
involving criminal convictions.

Section 415 Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

(1) Any person convicted on a trial held by a High Court in its extraordinary

original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions

Judge or on a trial held by any other Court in which a sentence of imprisonment for more

than seven years has been passed against him or against any other person convicted at the same trial, may appeal
to the High Court.

(3) Save as otherwise provided in sub-section (2), any person, —

(a) convicted on a trial held by Magistrate of the first class, or of the second class, or

(b) sentenced under section 364, or

(c) in respect of whom an order has been made or a sentence has been passed

under section 401 by any Magistrate, may appeal to the Court of Session.

(4) When an appeal has been filed against a sentence passed under section 64,

section 66, section 67, section 68, section 70 or section 71 of the Bharatiya Nyaya

Sanhita, 2023, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.

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 STATEMENT OF FACTS

1. Professional Relationship and Assignment

The appellant, Gaurav, and the complainant, Ashiba , were colleagues in an advertising
agency with a proven track record of success. they had worked together harmoniously for
over two years and were highly regarded for their innovative advertising campaigns. both
were assigned the task of location scouting for a two-wheeler advertisement in Goa,
showcasing their expertise and mutual trust.

2. Circumstances Leading to the incident

During their stay in Goa, the colleagues were accommodated in separate rooms at
the Nova International Hotel. On the first day, after an unsuccessful location
scouting session, Gaurav offered Ashiba coffee to relax. When Ashiba expressed a
need to use the restroom, Gaurav, acting out of convenience and goodwill, offered
his room key as it was closer to the cafeteria. Despite initial hesitation, she
accepted the offer, and Gaurav accompanied her to the room to alleviate her
discomfort.

3. Nature of the Incident

While in the room, Gaurav engaged in a casual, lighthearted conversation with no

malicious intent. He informed Ashiba about the bathroom door's faulty lock, a fact he had
earlier reported to hotel staff. His subsequent actions, though inappropriate, lacked
premeditation. When Gaurav opened the bathroom door, he immediately retreated,
apologising profusely and demonstrating remorse. His reaction indicates an absence of
intent to harm or invade Ashiba’s privacy maliciously

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 .

4. Aftermath and Conduct of the Appellant

Following the incident, Gaurav made repeated attempts to seek forgiveness from Ashiba,
displaying genuine regret for his actions. His behavior before and after the event
underscores the absence of criminal intent. Gaurav was promptly suspended from work
and was arrested and later convicted of one year’s imprisonment. Gaurav is charged under
Sec 74, Sec 75, Sec 76, Sec 77, Sec 78, and Sec 79 of the BNS. The appellant's appeal
emphasizes the contextual and situational factors that led to his actions, advocating for a
reconsideration of the charges and sentence.

5. Legal Context and Grounds for Appeal

The appellant contends that the incident qualifies as an exception under the law, arguing
that his actions stemmed from a combination of unfortunate circumstances and a lack of
intent. His genuine remorse, prior professional conduct, and the contextual nuances
warrant a reevaluation of both the charges and the quantum of punishment imposed.

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 ISSUES RAISED

1. WHETHER THE APPELLANT IS GUILTY OF THE OFFENCES AS

CHARGED UNDER THE BHARATIYA NYAYA SANHITA, 2023?

2. WHETHER THE SENTENCE IMPOSED BY THE TRIAL COURT IS

JUSTIFIED?

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 SUMMARY OF ARGUMENTS

1. Whether the appellant is guilty of the offences as charged under the Bharatiya
Nyaya Sanhita, 2023?

The appellant does not constitute the charges of sexual harassment, voyeurism and stalking
under the BNS, 2023. It is argued that the circumstances surrounding the alleged offences
warrant a thorough review to determine whether the actions were intentional or arose from
a misunderstanding.

2. Whether the Appellant had the intention to commit the offences u. Sec 74, Sec 76
and Sec 79 of the Bharatiya Nyaya Sanhita?

The appellant did not have the intention to commit the offences u. Sec 74, Sec 76 and Sec
79 of the Bharatiya Nyaya Sa

3. Whether the sentence imposed by the trial court is justified?

The one-year sentence given to the appellant should be reconsidered, taking into account
mitigating circumstances and the possibility of acquittal as the appellant has already
suffered enough due to the charges.

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 ARGUMENTS ADVANCED

I] WHETHER THE APPELLANT IS GUILTY OF THE OFFENCES AS CHARGED

UNDER THE BHARATIYA NYAYA SANHITA, 2023?

1.1. Sexual Harassment

2. It is humbly submitted to this Hon’ble High Court that the present case does not warrant
a conviction for the alleged offence, as the conduct of the Appellant does not fulfill the
criteria or standards of sexual harassment. Furthermore, the respondent has leveled false
allegations against the Appellant.

3. Sec.75 of the Bharatiya Nyaya Sanhita, 2023- (1) A man committing any of the
following acts:-

i. Physical contact and advances involving unwelcome and explicit sexual

overtures; or
ii. A demand or request for sexual favours; or
iii. Showing pornography against the will of a woman; or
iv. Making sexually coloured remark.

Shall be guilty of the offence of sexual harassment.

4. From the aforementioned essentials of sexual harassment, it can be inferred that the
Appellant’s conduct does not fall within any of the four acts or sub-clauses that
constitute sexual harassment. Therefore, it is respectfully requested that this Hon’ble
Court set aside these accusations, as they are false and malicious in nature.

5. Furthermore, Gaurav’s statement including “That’s the trick baby” , “ You don’t like to
see the bedroom without me?” and “ You are a sitting duck,” cannot be seen as sexually

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 coloured remarks as it was said in a friendly manner considering the usual conversations
and friendly relations between the Gaurav and Ashiba.

6. The statement “You are a sitting duck” was made by Gaurav to inform Ashiba about the
faulty bathroom door which was considered by Ashiba as sexually coloured remark. The
statement was made in casual manner without any intention to cause apprehension in the
mind of Ashiba.

7. The statement “You don’t like to see the bedroom without me?” was made by Gaurav in
joking manner when Ashiba was hesitant to go to Gaurav’s room without the actual
occupier. Gaurav made the statement indicating that he can accompany her to his room.

8. Also, the word ‘baby’ used by Gaurav in one of his statement cannot be termed as
sexually coloured as the word is commonly used to refer to a friend. Similarly, if we go
according to a dictionary the word literally refers to a Child. The incident which
happened after saying the word, may have resulted in Ashiba thinking it was sexually
coloured. The appellant had no intention to make a sexually coloured remark and made
the statement as a friend in a joking manner.

9. These instances provides us that the statements made were in no manner sexually
coloured remarks and thus does not fall into any of the essentials of sexual harassment.

1.2. Stalking and Voyeurism

10. Sec.77 of the Bharatiya Nyaya Sanhita, 2023:- Whoever watches, or captures the image
of a woman engaging in a private act in circumstances where she would usually have the

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 expectation of not being observed either by the perpetrator or by any other person at the
behest of the perpetrator or disseminates such image shall be punished on first
conviction with imprisonment of either description for a term which shall not be less
than one year, but which may extend to three years, and shall also be liable to fine, and
be punished on a second or subsequent conviction, with imprisonment of either
description for a term which shall not be less than three years, but which may extend to
seven years, and shall also be liable to fine.

11. In the context of Voyeurism, the term ‘Private Act’ is critical element. The appellant did
not observe or watch the respondent engaging in any private acts, nor was the respondent
in circumstances where she would have a reasonable expectation of privacy, as outlined
in the definition.

12. To elaborate more on the words Private Act, the explanation 1 of the section defines it
as- Whoever watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed
either by the perpetrator or by any other person at the behest of the perpetrator or
disseminates such image shall be punished on first conviction with imprisonment of
either description for a term which shall not be less than one year, but which may extend
to three years, and shall also be liable to fine, and be punished on a second or subsequent
conviction, with imprisonment of either description for a term which shall not be less
than three years, but which may extend to seven years, and shall also be liable to fine.

13. In this case, the respondent was just retouching her makeup. The appellant did not see or
watch the respondent doing any private act or in circumstances where she would usually
have the expectation of not being observed by the perpetrator as given in the definition.

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14. To be more accurate, the appellant opened the door washroom door while they were
having a conversation and flirting. It should also be understood that any person of
normal prudence would not speak to someone outside while engaged in a private act as
that would make them feel uncomfortable and awkward.

15. Furthermore the Appellant and the Respondent have been working together since past
Two years, where they have been travelling together and were in close contact and were
quite familiar with each other.

16. Intention plays a crucial role in determining whether a person is guilty or not, which was
overlooked by the Trial Court. It should be noted that the Appellant rushed out of the
bathroom with his eyes closed when the Respondent started screaming as he understood
that his actions made her uncomfortable. If the Appellant had the intention to do so he
had several other ways to do, but he did not have any intention to do such an act. It was
due to their friendly relations, Appellant’s witty nature and the flow of the conversation
that the Appellant did the act.

17. It is respectfully submitted to this Hon’ble High Court that the conviction under
Voyeurism should also be set aside, as the act in question resulted from
misunderstanding. The circumstances leading to the act indicate that the Appellant’s
conduct does not satisfy the essentials elements or legal standards required for a
conviction of Voyeurism.

18. Sec. 78 of the Bharatiya Nyaya Sanhita, 2023:- Any man who—

1. follows a woman and contacts, or attempts to contact such woman to foster personal
interaction repeatedly despite a clear indication of disinterest by such woman; or
2. monitors the use by a woman of the internet, e-mail or any other form of electronic
communication, commits the offence of stalking;

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 Provided that such conduct shall not amount to stalking if the man who pursued it
proves that,

i. it was pursued for the purpose of preventing or detecting crime and the man
accused of stalking had been entrusted with the responsibility of prevention
and detection of crime by the State; or

ii. it was pursued under any law or to comply with any condition or requirement
imposed by any person under any law; or

iii. in the particular circumstances such conduct was reasonable and justified.

19. It is humbly reiterated before this Hon’ble High Court that the conviction for stalking is
based on misunderstandings and does not meet the essential legal requirements to
constitute the offence. The Appellant neither followed the Respondent nor monitored her
through the internet, emails, or social media. On the contrary, they were colleagues who
worked closely in shared spaces, traveled together on occasions to finalize and shoot
locations, and met clients jointly to discuss their work.

20. Suraj v. State of Haryana 2020(2) RCR (Criminal) 405 (P&H)

The Punjab and Haryana High Court acquitted the convict, emphasising the lack of credibile
evidence to support the allegations. The Court reiterated that accusations must be
substantiated by concrete proof rather than solely relying on the victim’s statements.
Therefore such conviction should be set aside by this Hon’ble Court and free the Appellant
with his dignity.

II] WHETHER THE APPELLANT HAD THE INTENTION TO COMMIT THE SAID
OFFENCES?

2.1. To Assault or to use Criminal force to disrobe a Woman or Outrage her modesty.

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21. Sec 76 states that:- Whoever assaults or uses criminal force to any Woman or abets such
act with the intention of disrobing or compelling her to be naked, shall be punished with
imprisonment of either description for a term which shall not be less than three years but
which may extend to seven years, and shall also be liable to fine.

22. Sec 74 states that:- Whoever assaults or uses criminal force to any woman, intending to
outrage or knowingly it to be likely that he will thereby outrage her modesty, shall be
punished with imprisonment of either description for a term which shall not be less than
one year but which may extend to five years, and shall also be liable to fine.

23. Sec 130 defines Assault as:- Whoever makes any gesture, or any preparation intending
or knowing it to be likely that such gesture or preparation will cause any person present
to apprehend that he who makes that gesture or preparation is about to use criminal force
to that person, is said to commit an assault.

24. Even the definition of assault specifies that intention is required to prove the commission
of Assault. Also Gaurav did use any criminal force against Ashiba.

25. To prove the conviction under the aforementioned Sections of the BNS, Intention needs
to proved. The definition of Intention is as- Intention is the foreknowledge of the act
coupled with the desire of it. Intention has the following elements of crime which are as
follows

▪ Human Being
▪ Mens Rea (State of mind, guilty mind)
▪ Actus Reus (Human Conduct)
▪ Injury (Harm to some other)

The Doctrine of Mens Rea is as follow:-

It is one of the principle of the English Criminal Law that to constitute guilt there must be
guilty intent along with the act itself and that the crime is not committed if the mind of the

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person doing the act in question be innocent. In crimes, requiring Mens Rea as well as Actus
Reus, the physical act must be contemporaneous with guilty mind.

26. Applying the above mentioned Doctrine, we can see that Gaurav opened the bathroom
door with absolutely no intentions of any sexual endeavours or touching her
inappropriately or assaulting her in any manner. Gaurav had already warned Ashiba that
the door lock is faulty. Despite having this knowledge, she went ahead to say that “Even
if it’s not locked, you won’t open it; you’re not daring enough” and laughed about this.

27. If we see this in accordance with the Doctrine of Mens Rea, we can see that Gaurav had
not committed the act voluntarily but was provoked my Ashiba. Also, Gaurav’s entry
into the bathroom was not motivated by intention to cause harm or intimidate Ashiba.
His actions although inappropriate, were in nature of joke or moment of carelessness,
which was a result of their friendly relations and daily banter.

28. In the case of Kartar Singh v. State of Punjab 1994, the Supreme Court held that the
penal provision must be read with the elements of Mens Rea unless a statute either
expressly or by necessary implication rules it out.

29. In the present case, Gaurav’s mind never went in the direction of assaulting her nor did
he have any sexual intentions or intentions to outrage her modesty and did the action
only to prove Ashiba wrong and prove his statement, which proves lack of Mens Rea.
Therefore Gaurav should not be made criminally liable for the act as his act is justified.

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 2.2.Use Words, Gestures, Acts to insult Modesty of a Woman.

30. Sec 79 of the BNS states that:- Whoever, intending to insult the modesty of any woman,
utters any words, makes any sound or gesture, or exhibits any object in any form,
intending that such word or sound shall be heard, or that such gesture or object shall be
seen, by such woman, shall be punished with simple imprisonment for a term which may
extend to three years, and also with fine.

31. The words used by Gaurav while talking to Ashiba, were used with no intention of
insulting her modesty nor did he make any gesture which could be seen by her. Also the
act committed by Gaurav had no criminal motive to it.

32. In the case of Sanjay Kumar v. State of NCT of Delhi, the accused was alleged to have
made hand gestures towards a woman, which she interpreted as offensive and filed a
complaint under Sec 509 IPC. However, there was no evidence that the gestures were
intended to insult her modesty. The accused was acquitted as the prosecution failed to
establish that the gestures were of such a nature as to insult the modesty of the
complainant. The Court observed that the woman’s perception of insult, in this case, was
subjective and not necessarily reflective of the accused’s intent.

33. Hence the Counsel on behalf of the Appellant humbly contends that the charges levied
upon Gaurav do not stand true when assessed in light of the facts and circumstances of
the of the case. It has been conclusively established that Gaurav neither intended to nor
violated any of the relevant provisions of law. The incident lacked any malicious intent
and was marked by a sense of playfulness, which regrettably led to a significant
misunderstanding between the two parties.

34. Thus it is humbly submitted that the Appellant cannot be convicted for his act to have
violated the above sections of the BNS.

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III] WHETHER THE SENTENCE IMPOSED BY THE TRIAL COURT IS
JUSTIFIED?

It is most humbly submitted to this Hon’ble Court that the conviction imposed on the
Appellant by the Trial Court is arbitrary & unreasonable because the act or conduct of the
Appellant as mentioned earlier does not constitute to the offences convicted under Sec
74,75,76,77,78,79 of the BNS.

When determining the quantum of sentences in criminal cases, courts take into account
various factors such as the seriousness of the offence, aggravating and mitigating
circumstances, the impact on the victim, the motive of the crime, and the criminal record of
the accused.

In the case of State of Madhya Pradesh v. Bablu Natt (2009) 2 SCC 272, the court
emphasised that while deciding the quantum of sentence, the punishment must fit the crime,
and the gravity of the offence must be reflected in the sentence.

In the case of Shailesh Jasvantbhai v. State of Gujarat (2006) 2 SCC 359, the Supreme
Court held that while mitigating circumstances (such as age of the accused or lack of prior
criminal record) can influence sentencing, they cannot outweigh the seriousness of crime.

In the present case, Gaurav has not committed a serious offence, as he lacked any initial
intent, which significantly reduces the burden of proof. Furthermore, Gaurav has no prior
accusations or offences on record; this was the first complaint ever filed against him. Also
due to the conviction, Gaurav has already lost his job and his image has been tarnished in the
society. The Court should have taken these factors into account before imposing a harsh
sentence of one year of imprisonment.

Hence the quantum of sentence should have been much more lenient which would have
reduced the seriousness of the conviction.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
most respectfully prayed before this Honourable Court that it may be pleased to adjudge, hold
and declare that,

1. The Trial Court has erred in its judgement and hence the judgement must
be set aside.

2. The appellant is not guilty of committing offence of Criminal Force and

Assault against woman under Sec 74, 75, 76, 77, 78 and 79 of the BNS and
hence must be acquitted.

And pass any such orders as the court may deem fit in the light of the poignant facts of
the instant case as well in the light of Equity, Justice, and Good Conscience for which
the Appellant will forever remain obliged.

Place: Porvorim sd/-

Date: 10-12-2024 ADV for the Appellant

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