Moot memorial 123455, Papers of Criminal Law

Download Moot memorial 123455 and more Papers Criminal Law in PDF only on Docsity!

TEAM CODE: R

2 ND^ DME NATIONAL MOOT COURT COMPETITION, 2018

BEFORE THE HON’BLE HIGH COURT OF GONDHIA

IN THE MATTER OF SECTIONS 147, 153A & B, 295A, 326, 354, 426, 506, r/w 34 AND 120B OF THE GONDHIAN PENAL CODE. STATE OF GONDHIA…………………………...……………………PETITIONER V. SANSKRITI SUDHAR DAL...............................................................RESPONDENT BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON’BLE HIGH COURT MEMORIAL ON BEHALF OF THE RESPONDENTS

Memorial on behalf of the Respondent I

TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................................... I

STATEMENT OF JURISDICTION ..................................................................................... II

SUMMARY OF ARGUMENTS .......................................................................................... III

ISSUE 1. WHETHER THE ACQUITTAL OF THE ACCUSED PERSONS INCLUDING

THE SSD CHIEF UDIT KUMAR WAS JUSTIFIED......................................................... III

ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER

§161 CRPC IS ADMISSIBLE IN THE COURT OF LAW ................................................ III

ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC

WITNESS.............................................................................................................................. III

ARGUMENTS ADVANCED ................................................................................................. 1

ISSUE 1. WHETHER THE ACQUITTAL OF THE ACCUSED PERSONS INCLUDING

THE SSD CHIEF UDIT KUMAR WAS JUSTIFIED........................................................... 1

1.1 THE ACCUSED PERSONS CAN BE PUNISHED FOR RIOTING UNDER § 147 OF THE GPC ............. 1

1.2 THE ACCUSED PERSONS CAUSED GRIEVOUS HURT BY DANGEROUS WEAPONS UNDER § 326 OF

GPC ...................................................................................................................................... 2

1.3 THE ACCUSED PERSONS OUTRAGED THE MODESTY OF A WOMAN UNDER § 354 OF GPC ....... 2

1.4 THERE WAS AN INTENTION TO INSULT THE FEELINGS OF NATIONAL INTEGRITY OF THE

PETITIONER UNDER § 153A AND 153B AND WAS THERE A DELIBERATE AND MALICIOUS ACT

UNDER § 294A OF GPC........................................................................................................... 2

1.5 THE ACCUSED HAS ABETTED THE SUICIDE OF THE DECEASED UNDER § 306 OF GPC ............ 4

ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER

§161 CRPC IS ADMISSIBLE IN THE COURT OF LAW .................................................. 5

2.1 THE STATEMENT OF POOJA KUMARI RELATED TO THE CIRCUMSTANCES OF THE

TRANSACTIONS WHICH RESULTED IN THE ABETMENT OF HER SUICIDE RESULTING IN HER DEATH 6

ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC

WITNESS................................................................................................................................ 6

3.1 THAT KKRISHNA PAHALWAN IS NOT AN ACCOMPLICE TO THE CRIME. ................................. 7

3.2. THAT KRISHNA PAHALWAN’S STATEMENT WAS NOT ADMISSABLE IN THE COURT ............... 7

PRAYER ................................................................................................................................. 9

Memorial on behalf of the Respondent II

STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for the petition filed before this Honourable Court. The petition invokes the jurisdiction of this court on matters against acquittal. It sets forth the facts and the laws on which the claims are based.

378. Appeal in case of acquittal. (1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal. (3) No appeal under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub- section (2).

Memorial on behalf of the Respondent III

SUMMARY OF ARGUMENTS

ISSUE 1. WHETHER THE ACQUITTAL OF THE ACCUSED PERSONS INCLUDING

THE SSD CHIEF UDIT KUMAR WAS JUSTIFIED

It is submitted that the various sections of the Gondhian Penal Code that Udit Kumar and others were charged under could not be proved by the prosecution beyond reasonable doubt. The prosecution even failed to produce enough witnesses to corroborate the alleged criminal charges even though it is alleged to have taken place in a public place in broad day light. They were further wrongfully charged for charge of abetting suicide of one Pooja Kumari who in her statement did not even talk about that crime. Therefore, it is humbly submitted that the acquittal by the session’s court is completely justified from a legal point of view. ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER §161 CRPC IS ADMISSIBLE IN THE COURT OF LAW It is submitted before this court that the statement of Pooja Kumari recorded under 161 Cr.P.C is admissible. The subsequent death of Pooja Kumari makes her statement a dying declaration that deals with the transaction at the Select Metro Mall that lead to her suicide which is admissible under section 32 of the Evidence Act. ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC WITNESS In the sessions court proceedings, no weightage was given to Krishna Pahalwan’s statements and it was stated that he was unworthy of credit. Krishna Pahalwan cannot be proved as an authentic accomplice and it is contended that his statement was undoubtedly not admissible in the court.

ARGUMENTS ADVANCED

ISSUE 1. WHETHER THE ACQUITTAL OF THE ACCUSED PERSONS INCLUDING

THE SSD CHIEF UDIT KUMAR WAS JUSTIFIED

It is humbly submitted before this honourable court that the acquittal of the accused persons by the honourable session’s court is justified as the accused persons can be proved to be not guilty of the offences under GPC that they were charged for [1.1-1.3]. 1.1 The accused persons can be punished for rioting under § 147 of the GPC To be punished under §147 for rioting the primary pre-requisite is to commit the offence of rioting under § 146 which requires a number of conditions to be fulfilled including the following: A. There must be an unlawful assembly under §141 of the GPC. For rioting to take place an important ingredient is unlawful assembly. 1 And unlawful assembly requires at least five people.^2 The Supreme Court has established that mere presence in assembly is not sufficient to prove membership of the unlawful assembly. 3 It needs to be shown that each of the members did some overt act that is wrongful and in consonance with the common intention of the assembly.^4 It is submitted that on the 14th^ of February, 2002 no such incident occurred that can conclusively prove an unlawful assembly. The following paragraph discusses the same. In the narration of the given incident there is no clear description of five or more people doing overt acts individually which are wrongful. This proves that there was no unlawful assembly and thus no rioting under §146 of GPC and hence the accused cannot be punished under §147 of GPC. (^1) Hazara Singh v. State of Punjab, (1971) 3 SCR 647. (^2) Section 141 of the GPC (^3) Baladin v State of Uttar Pradesh, AIR 1956 SC 181. (^4) Baladin v State of Uttar Pradesh, AIR 1956 SC 181.

1.2 The accused persons caused grievous hurt by dangerous weapons under § 326 of GPC The GPC defines eight different types of hurt that can be classified as “grievous hurt”.^5 There is no evidence or narration of any incident where the accused person caused grievous hurt, as defined in GPC, to any person present there in the mall on the 14th^ of February, 2002. 1.3 The accused persons outraged the modesty of a woman under § 354 of GPC Not every criminal act involving a woman amounts to outraging her modesty. 6 For the purposes of this section the act must be done with the intention or knowledge that it is likely to outrage the modesty of the person concerned.^7 Acts which would otherwise amount to outraging the modesty of a woman may not be viewed in the same light when it becomes a part of a heated transaction. 8 Pooja Kumari alleged that she was pushed by one of the accused persons.^9 Even though her statement has not been corroborated and even if it is assumed that she was in fact pushed by the accused that does not prove any mens rea on the accused person’s part to outrage her modesty as such an act has to be judged in the context of the then circumstances, that is, all of it happened in the middle of a quarrel and in such a situation a mere push does not amount to outraging the modesty of Pooja Kumari. Therefore, it shall be gross injustice if the accused persons are punished for an offence under this section. The prosecution has failed to prove the guilt of the accused persons under the various sections beyond reasonable doubt and thus the acquittal of the accused persons was justified and in furtherance of the cause of justice. 1.4 There was an intention to insult the feelings of national integrity of the petitioner under § 153A and 153B and was there a deliberate and malicious act under § 294A of GPC. It is submitted before this Hon’ble court that intention to cause disorder or incite the people to violence is the sine qua non of the offence under § 153A of GPC.^10 The prosecution has to (^5) Section 320 of the Gondhiyan Penal Code (^6) Government of Assam v. Kantila, AIR 1927 Cal 505. (^7) Government of Assam v. Kantila, AIR 1927 Cal 505. (^8) Rajesh Swarupchand Kankaria and Ors. V State of Maharshtra , 2017 SCC Bom 316. (^9) Annexure II (^10) Section 153 B of Gondhian Penal Code

prove prima facie the existence of mens rea which was established in the case of Manzar Sayeed Khan v. State of Maharshtra. As in this case also the prosecution has failed to prove mens rea beyond reasonable doubt. In Ramesh Chotalal Dalal v. Union of India & Others^11 , this Court held that TV serial "Tamas" did not depict communal tension and violence and the provisions of § 153A of IPC would not apply to it. It was also not prejudicial to the national integration falling under §153B of GPC.^12 These sections are violative of the fundamental right of free speech, and were penalising people even when they remained well within the reasonable restrictions on free speech in Article 19(2)^13 of the Constitution^14. It is also claimed that these sections curbed a vibrant and vigorous public discourse that is essential to a lively democracy.^15 Udit Kumar believes in preserving the culture of Gondhu religion. Acts done by the moral police and the activists were in the best interest to save the religion and not to hurt the sentiments of the citizens. Again in Bilal Ahmed Kaloo v. State of A.P.^16 , it is held that promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. There have been some aberrations, few and far between, at times pointing to the presence of committed judges or those influenced by particular religion-political ideologies. Such aberrations can of course be, and have often been, freely criticized by conscientious objectors and legal critics.^17 Further, it was observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract the Section. Udit Kumar doesn’t talk about another community, the intention here is protecting the Gondhian culture and not insulting or attempting to insult another community. To ascertain whether an offence as defined under § 153(A) of GPC has been committed or not, it is for the court to examine the words either spoken or written or by signs or by visible (^11) Ramesh Chotalal Dalal v. Union of India & Others AIR (1988) SC 775 (^12) Section 153 B of Gondhian Penal Code (^13) Subramanian Swamy v. Unioun of India (2016) (8) SCC 31 (^14) Article 19(2) of Constitution of Gondhia (^15) Master Tara Singh vs State Of Punjab And Anr (1961) CriLJ 547 (^16) Bilal Ahmed Kaloo v. State of A.P. (1997) 7 SCC 431 (^17) RELIGION & LAW REVIEW (Tahir Mahmood ed., 1992–2000), and TAHIR MAHMOOD, AMID GODS AND LORDS: MY LIFE WITH THE VOTARIES OF RELIGION AND LAW (2005).

representations and come to a conclusion whether they have a tendency to promote or attempts to promote on grounds of religion, race, place of birth, residence, language, caste or community or any other group etc. disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities.^18 In this case, the prosecution has not been able to establish any mens rea on the part of the appellants, as envisaged by the provisions of § 153A GPC, by their raising causally the three slogans a couple of times. The offence under § 153A GPC is, therefore, not made out. It appears that raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can neither attract the provisions of § 124A^19 or § 153A IPC^20. 1.5 The accused has abetted the suicide of the deceased under § 306 of GPC It is humbly submitted that the law regarding offence of abetment to commit suicide is clear. A person can be said to instigate another when he incites or otherwise encourages another, directly or indirectly, to commit suicide.^21 The word ‘instigate’ means to goad or urge forward or provoke, incite, urge or encourage to do an act.^22 Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet, a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. In a recent case Sanjay Singh v. State of Madhya Pradesh^23 it was held that (^18) Mohd. Khalid Hussain vs. The State, through S.H.O : 2000 (1) ALD Cri 482, 2000 (1) ALT Cri 561, 2000 CriLJ 2949 (^19) Section 124A of Gondhian Penal Code (^20) Balwant Singh vs. State of Punjab and Anr. (18.02.1994 - SC) 1995 (1) SCR 411 (^21) Asha Shukla v. State of U.P. (2002) CriLJ 2233 (^22) Parimal Chatterji v. Emperor 140 Ind. Cas.787. (^23) Sanjay Singh v. State of Madhya Pradesh (2002) 5 SCC 371: 2000 Supp sc 2246

phrases like “ to go and die ”, cannot be taken to be uttered with mens rea. Similarly, in the present case statement like “ tie or die ” made by the activists doesn’t amount to abatement. To constitute 'instigation', a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or 'urging forward'. The dictionary meaning of the word "goad" is "a thing that stimulates someone into act ion; provoke to action or reaction, to keep irritating or annoying somebody until he reacts.^24 The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything. The abetment may be by inaligation, conspiracy or intentional aid as provided in the three clauses of the section.^25 Instigate means the active role played by a person with a view to stimulate another person to do the thing. In order to hold a person guilty of abetting it must be established that he had intentionally done something which amounted to instigating another to do a thing.^26 It is submitted that there is no direct or indirect evidence which proves that there was an instigation by the accused. Therefore, there is no case of abetment to suicide against the accused. Mere suspicion of abetment of suicide doesn’t mean that the accuse is guilty. ISSUE 2. WHETHER THE STATEMENT OF PUJA KUMARI RECORDED UNDER §161 CRPC IS ADMISSIBLE IN THE COURT OF LAW It is humbly submitted before this court that Since Pooja Kumari died subsequently after giving her statement^27 it can be considered as a dying declaration. This makes way for § 32 of the evidence act to be attracted. An important ingredient for a statement under this section to be admitted as a substantive piece of evidence under § 32 of the Evidence Act is that it has to relate to cause of death or the circumstances of the transaction which resulted in the person’s death [2.1].^28 Dying declaration recorded by a police officer if found to be true may base (^24) Chitresh Kumar Chopra v. State (Government of NCT of Delhi), AIR 2010 SC 1446; Kishangiri Mangalgiri Goswami v. State of Gujarat , (2009) 4 SCC 52 : (2009) 1 SCR 672 : AIR 2009 SC 1808 : 2009 0 Cri.L.J 1720. (^25) Goura Venkata Reddy v. State of A.P ., (2003) 12 SCC 469. (^26) Rajib Neog v. State of Assam, 2011 CrLJ 399(Gau) (^27) Moot proposition, Page 1, Para 4 (^28) Clause 1 of section 32 of the Evidence Act; Gunanidhi Sundara v. State of Orissa, 1984 CrLJ 1215 (Ori); Pakala Narayana Swami v. The Emperor, AIR 1939 PC 47

conviction.^29 In the past dying declaration was accepted and conviction was based solely on the basis of the declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused.^30 Further, under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under expectation of death.^31 Nemo moriturus praesumitur mentire- It implies that a man who is on death bed would not tell a lie to falsely implicate innocent person.^32 Where the dying declaration is believed to be true, consistent and coherent, it can be relied upon for conviction, even if there was no corroboration.^33 2.1 The statement of Pooja Kumari related to the circumstances of the transactions which resulted in the abetment of her suicide resulting in her death Pooja Kumari clearly stated in her statement that she was assaulted by one of the members of the mob (later identified as Krishna Pahalwan)^34 who pushed her hard and snatched her belongings and shouted “save Gondhiyan culture” and “tie or die”.^35 Such unwanted physical contact and unwarranted violence (both mental and physical) caused immense humiliation to her. Abetment to suicide involves a mental process of instigating a person to do a thing.^36 Each person’s suicidability pattern is different from others. Each person has his or her own idea of self-esteem and self-respect.^37 Unable to handle such a violent interaction Pooja Kumari committed suicide on the 14th^ of February, 2002. Therefore, it is very humbly submitted that exclusion of her statement would tend to defeat the ends of justice. ISSUE 3. WHETHER AN ACCOMPLICE CAN BE CONSIDERED AN AUTHENTIC WITNESS (^29) Urgeu Sherpa v. State of Sikkim , (1985) 1 SCC 278. (^30) Lallubhai Devchand Shah v. State of Gujarat , AIR 1972 SC 1776. (^31) Rajindra Kumar vs. TheState, Air 1960 P&H 310(1); State vs. Kanchan Singh ; Tehal Singh vs. State of Punjab;Sharad vs. State of Maharashtra (^32) Sharda v. State of Rajasthan, AIR 2010 SC 408. (^33) Khushal Rao v. State of Bombay , AIR 1958 SC 22: 1958 Cr LJ 106; Ram Nath Madhoprasad v. State of Madhya Pradesh , AIR 1953 SC 420: 1953 Cr LJ 1772; State of Assam v. Mafizuddin Ahmed , AIR 1983 SC

(^34) Anexure II, III (^35) Annexure II (^36) Sohan Raj Sharma v. State of Hariyana, AIR 2008 SC 2108. (^37) Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605.

The sessions court did not give weightage to his statements and stated that he was unworthy of credit. The fact that Krishna Pahalwan cannot be called an accomplice has been proved in (3.1) and whether his statement is admissible in court is proven in (3.2). 3.1 That Kkrishna Pahalwan is not an accomplice to the crime. In Haroon Haji Abdulla v. State of Maharashtra^38 it was held that: The case against Haroon stands mainly on the basis of the statement of the accomplice Kashinath (PW 1). Kashinath must be held to be a competent witness in view of our decision in the Chauraria case^39. The use of the statements is objected to generally and in particular on the following grounds that the statements are not confessions proper to which § 30 of the evidence act^40 can be made applicable and an accomplice’s statement cannot be used to corroborate him as an accomplice cannot corroborate himself. Therefore, it is contended that Krishna Pahalwan is not an accomplice to the crime as there was no corroboration to the crime by him^41. Pooja Kumaris’s short “ glimpse ” is not a ground on which the evidence can be recorded^42. Moreover, Pooja Kumari’s statement as a deceased^43 ,^ is not admissible^44 in the court^45 and there is no proof^46 of Krishna Pahalwan being involved in the crime.^47 The court must acquit the accused of charges as the witnesses are not admissible and the authenticity of the witnesses are highly questionable in the court. 3.2. That Krishna Pahalwan’s statement was not admissable in the court In Bhuboni Sahu v. The Emp^48 , The appellant was acquitted by the court. The Court Observed that : (^38) Haroon Haji Abdulla vs. State of Maharashtra (14.12.1967 - SC) 1968 AIR 832, 1968 SCR (2) 641 (^39) Lal Chand Chauraria vs. Hari Chand Kharar (08.03.1939 - CALHC) : MANU/WB/0325/ (^40) Section 30 of the Indian Evidence Act 1872 (^41) Rameshwar Singh v. State of Rajasthan (SB Civil Misc. Writ Petition No. 110 of 1967) (^42) Annexure 2 (^43) In The High Court Of Jammu And Kashmir vs Mahabaleshwar Gourya Naik 1992 ... on 11 December, 2015 (^44) Antonio v Barugahare v R (1957) EA 149 (CA) (^45) Mohamed Warsama v R .(1956) 23 EACA 576. (^46) Chonampara Chellappan v. State Of Kerala on 30 March, (1979) AIR 1979 SC 1761, 1979 CriLJ 1335, (1979) 4 SCC 312 (^47) Haroon Haji Abdulla vs. State of Maharashtra (14.12.1967 - SC) 1968 AIR 832, 1968 SCR (2) 641 (^48) Bhuboni Sahu vs The King on 17 February, (1949) 51 BOMLR 955

The combine effect of § 133 and 114^49 , states that the former is a rule of law an accomplice and is competent to give evidence and the latter is a rule of practice and it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the court will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particular. It was already proved in the first sub issue that Krishna Pahalwan was not the accomplice^50 in the crime with SSD and that there was no corroboration^51 by him in the crime committed. The above cases prove that when there was no corroboration by the accomplice with the accused^52 , the evidence taken by him will not be admissible in the court,^53. Therefore, it is contended that Krishna Pahalwan’s statements be ignored in this Hon’ble High Court. Hence, it is contended that Krishna Pahalwan is not an accomplice to the crime and his statement cannot be considered in the court. (^49) Section 114 of Gondhian Evidence Act 1872 (^50) Bhuboni Sahu vs The King on 17 February, (1949) 51 BOMLR 955 (^51) B.D Patil v. State of Maharashtra (1963) 3 SCR 830, (^52) Bhiva Doulu Patil v. State Of Maharashtra [AIR 1963 SC 599; 1963 3 SCR 830] (^53) Md. Hussain Umar Kochra v. K.S Dalipsinghji ( 1969) 3 SCC 429

PRAYER

Therefore, it is prayed, in light of the issues raised, arguments advanced, and authorities cited, that this Hon'ble Court may be pleased to declare/ adjudge/ hold that:

1. DECLARE that the acquittal of the SSD chief Udit Kumar along with other members of SSD by the honourable session’s court was justified.
2. DECLARE that the statement by Pooja Kumari recorded under 161 Cr.P.C is not admissible.
3. DECLARE that the witness of the accomplice is unworthy of credit and holds no legal weightage.
4. DECLARE that the SSD chief Udit Kumar and other accused persons are not guilty of the offencesVdescribed under sections 147, 153A & B, 295A, 326, 354, 426, 506 read with 34 and 120 B and 306 of the Gondhian Penal Code, 1860 AND/OR Pass any other Order, Direction, or Relief that this Hon’ble Court may deem fit in the Best Interests of Justice, Equity and Good Conscience. For This Act of Kindness, the Appellant Shall Duty Bound Humbly Pray. (Counsel for the Respondent)