PROBLEM 2

B-001

BEFORE THE HON’BLE PRINCIPAL DISTRICT & SESSIONS JUDGE, IMAGINARY CITY

S.C. No. XXX OF 2019

TRIAL UNDER SECTION 177 R/W 209 OF CRIMINAL PROCEDURE CODE, 1908

IN THE MATTER OF:

STATE OF IMAGINARY CITY …PROSECUTION

V.

UNKNOWN …ACCUSED/
DEFENCE

FOR OFFENCE CHARGED UNDER SECTION 302 INDIAN PENAL CODE, 1860

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENCE

MEMORIAL ON BEHALF OF THE DEFENCE

 2
MEMORIAL ON BEHALF OF THE DEFENCE
 TABLE OF CONTENTS

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

I. THE CHAIN OF CIRCUMSTANCES DOES NOT PROVE THE GUILT OF THE ACCUSED.
1
A. That the actus reus of the act does not stand proved...................................................................1

B. Means Rea does not get established............................................................................................2

II. THE EVIDENCES ADDUCED BY THE PROSECUTION ARE NOT RELIABLE..............2

A. The testimony of child –witnesses is not reliable.........................................................................2

B. The testimony of the complainant is not reliable.........................................................................3

C. Seizure Mahazar is not valid.......................................................................................................3

III. PROSECUTION HAS NOT BEEN ABLE TO ESTABLISH THE CASE BEYOND
REASONABLE DOUBT..............................................................................4
A. There are serious contradictions between prosecution case and testimonies of witnesses.........4

B. Prosecution has not established alleged motive of the accused..................................................5

PRAYER............................................................................................. 6

MEMORIAL ON BEHALF OF THE DEFENCE

 ARGUMENTS ADVANCED
I. THE CHAIN OF CIRCUMSTANCES DOES NOT PROVE THE GUILT OF THE
ACCUSED.
1. It is submitted before this Hon’ble court that the accused is charged u/s 302 IPC in the present
matter, however by keeping the facts and circumstances of the present case in mind the charge
doesn’t get proved against the accused.
A. That the actus reus of the act does not stand proved.
2. It is submitted that for an offence of murder u/s 300 to stand the prosecution must prove the
actus reus, i.e. the commission of the act. However in the present matter the same does not
stand proved. In the absence of any act having been committed by the accused no charge can
stand against him. The circumstantial evidences do not get proved.
3. That in the present matter there is no eye-witness. The two witnesses, PW2 and PW3 who
were present at the crime scene have not seen the commission of the crime by the accused.
When they heard the cries of their mother they got up and saw that their mother was lying
stabbed in a pool of blood and their father was there.
4. That every criminal trial is based on direct and circumstantial evidence. Whereas, the former
directly establishes the commission of offence while the later does so by placing unbroken
chain of circumstances which can lead to irresistible inference of guilt. In the facts of the
present case there is no direct evidence to prove the commission of crime of murder by the
accused and therefore the case primarily rests upon the circumstantial evidence only.
5. The circumstances should be of conclusive nature and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show that within all human
probability the act must have been done by the accused.1
6. In the present case the prosecution has failed to establish the chain of circumstances that
would point only towards the guilt of the accused. The prosecution case is that on the night of
the incident the deceased, accused and their two sons were sleeping inside the house in the
same room. The two children got up when they heard the cries of their mother and saw that
their mother has already been stabbed and the accused was there. However it must also be
noticed that at the time of the incident the front door was open. Here, two possibilities, viz.
a) That someone was already inside the house who stabbed the deceased and then fled away.
1
Kamlesh Singh v. State, (2013) 15 SCC 460.
1
MEMORIAL ON BEHALF OF THE DEFENCE
 b) That someone from outside came inside house, stabbed the deceased and then fled away.
7. That when even a link breaks away, the chain of circumstances gets snapped and other
circumstances cannot in any manner establish the guilt of the accused beyond all reasonable
doubts.2 The court must be firmly satisfied upon the three things:
i. The circumstances, from which the inference of guilt is to be drawn, must have fully been
established by unimpeachable evidence beyond a shadow of doubt, ii. the circumstances
are of determinative tendency, unerringly pointing towards the guilt of the accused, iii. the
circumstances taken collectively are incapable of explanation on any reasonable
hypothesis except that of the guilt sought to be proved against him. 3
8. That the prosecution has failed to establish as to how it is only the accused who has committed
the murder and not and third person. The chain of circumstances does not conclusively
establish the guilt of the accused and therefore, the prosecution cannot shift its burden on the
accused to satisfactorily prove his innocence.
B. Means Rea does not get established.
9. It is submitted that in the present case no direct evidence is pointing towards the intention of
the accused to cause death of the accused. Mens rea is considered as guilty intention4, which is
proved or inferred from the acts of the accused. 5 In the present case, no act is done by the accused.
10. The intention to kill cannot be inferred from the mere possibility of offence been taken place,
but it should portray some act in furtherance of the guilty intention. 6 As prosecution is not able to
establish the commission of offence by the accused beyond reasonable doubt, therefore, it is submitted
that the accused does not possess any guilty intention.
II. THE EVIDENCES ADDUCED BY THE PROSECUTION ARE NOT RELIABLE.
11. The prosecution in the present matter has adduced oral as well as documentary
evidences to establish the guilt of the accused. However it is submitted that the evidences
adduced are not cogent and reliable as there are major contradictions in the same.
A. The testimony of child –witnesses is not reliable
12. It is submitted that children are not competent witnesses as per section 118 of the
Indian Evidence Act. However it is still the discretion of the judges to admit the minor as
witnesses provided that he is satisfied about his level of understanding.

2
Janar Lal Das v. State of Orissa, 1991 (3) SCC 27
3
Mahmood v. State of UP AIR 1976 SC 69
4
Commissioner of Income Tax v. Patranu Dass Raja Ram Beri, AIR 1982 PH 1, 4.
5
State of Maharashtra v. Meyer Hans George, AIR 1965 SC 722.
6
Laxman v. State of Maharashtra, AIR 1974 SC 1803
2
MEMORIAL ON BEHALF OF THE DEFENCE
 13. In the present matter as per the story of the prosecution when the children got up, they
saw that the accused was in the room and their mother had already been stabbed. It means
children never saw accused assaulting the deceased, however, in their testimony instead of
narrating the incident they had stated that their father murdered their mother which was never
seen by them.
14. The evidence of child is required to be evaluated carefully because he is an easy prey
to tutoring.7 In the present case, it is significant to mention that since 2 years children were
living with PW1 who was taking care of all their needs. Since PW2 and PW3 are children of
tender age, there is strong possibility of their tutoring by PW1.
15. In the present matter the two children were aged 7 years and 9 years at the time of the
incident and their statements have been recorded exactly two years after the incident, therefore
these raises a question regarding the memory of such a tender mind. Furthermore the version
of statement of the two children is word to word similar which raises the doubt of them being
tutored by someone. Thus keeping the above law and fact in mind the testimonies of the
children cast a doubt about their reliability.
B. The testimony of the complainant is not reliable.
16. That PW1 i.e. maternal uncle who himself is the complainant in the present matter
can’t be believed and his testimony against accused is liable to be rejected. To be a reliable
witness an individual has to prove his presence on the crime scene 8 and that he had seen the
incident. However, in present case PW1 was never present at the murder site. He was
informed by PW3 about death of his sister, on the basis of which he presumed that accused is
the murderer of victim. It is well settled legal principle that suspicion, however strong it may
be cannot take the place of proof.9 Therefore, testimony of PW1 is not reliable and should be
rejected.
17. That the complainant, PW1 has stated in his testimony that the two children came
running to him on that fateful night. However the children in their testimony have stated that
one of them went directly to the beat police officer. This fact is corroborated by the testimony
of PW7 who has stated in testimony that one of children came running to him on the night of
the incident.
18. In the present matter the prosecution has failed to adduce any evidence that would
point towards the guilt of the accused and therefore the testimonies should not be admitted.

7
7Bhagwan Singh & Ors.v. State of MP, AIR 2003 SC 1088.
8
Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1.
9
Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67.
3
MEMORIAL ON BEHALF OF THE DEFENCE
 C. Seizure Mahazar is not valid.
19. In the present case MO6 & MO7 which are two knives are introduced by prosecution
as murder weapons. These weapons do not have connection to the injuries caused i.e.,
lacerated cuts to the deceased as affirmed by Ex. 4. Now, what kind of weapons cause
lacerated wound.
20. Medical Classification of wound says,10
(i) Blunt forces injuries- can be abrasions, contusions or lacerations, (ii) Injuries caused by
sharp cutting weapons are incised wounds, (iii) Injuries caused by piercing weapons are called
stab wounds. There are incised stab wounds which are caused by sharp pointed weapons like
dagger or pen knife. Lacerated stab wounds are caused by blunt pointed weapons like cycle
spokes, umbrella ribs and screw drivers.
21. In Ganga Prasad v. State of UP,11 the Supreme Court held, “Injuries on the nature of
lacerated wound could not be caused by an impact of a sharp-edged weapon. Such injuries
are only possible by the use of a hard and blunt object.”
22. In the present case, it is to be considered that PW11 who is a witness and signatory to
seizure memo is an illiterate person and he informed the court that he signed the seizure memo
without reading it. Consequently, it can be inferred that PW11 has not proved mahazar as he is
totally unaware of the content of seizure memo prepared by the police. Therefore, it can be
safely concluded that the seizure mahazar in the present case is invalid. Thus, it raises a doubt
on the recovery of weapons from the house of the accused.
III. PROSECUTION HAS NOT BEEN ABLE TO ESTABLISH THE CASE BEYOND
REASONABLE DOUBT.
23. It is humbly submitted that prosecution has not been able to establish their case beyond
reasonable doubt. There are serious contradictions between the prosecution case and
testimonies by the witnesses. In addition to this, prosecution has completely failed to establish
the alleged motive behind the incident in question which is material in the present case
because prosecution story is wholly based upon the chain of evidences.
This argument is threefold:
A. There are serious contradictions between prosecution case and
testimonies of witnesses.
24. It is a settled position of law that the circumstances from which an inference as to the

10
Modi Jaising, Medical Jurisprudence And Toxicology, 23rd Ed., Lexis Nexis Butterworths, 2006.
11
(1987) 2 SCC 232.
4
MEMORIAL ON BEHALF OF THE DEFENCE
 guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact sought to be inferred from these
circumstances.12
25. In the present case, the principal fact is the presence of the accused at the crime scene
which is disputable because PW2 & PW3 have never stated his name either to PW1 or PW7
while narrating the incident. Now, there is a need to connect prosecution story to the principal
fact.
26. As per prosecution case location of the victim`s body is ambiguous. Prosecution has
stated that when the victim was stabbed she started moving towards the front door but she
could not get out of the house. However, the body of the victim was found by PW1 and the
police in front of neighbor’s house from where she was shifted to the hospital. Since, the body
is found in front of neighbors’ house, therefore, there is high possibility of occurring incident
outside the house.
27. Furthermore, prosecution has also stated in its case that on the night of the incident
both PW2 & PW3 rushed to the house of PW1, who resides in the immediate vicinity of the
house of the accused. PW7 has also stated in his testimony that one child aged around 6 years
came to him on the night of the incident and he was taken to the crime scene by PW2. PW1 on
the other hand has stated in his testimony that both PW2 & PW3 came running to his house on
the night of the incident, which is contrary to establish facts, thus, raises serious doubt on the
prosecution story. In such circumstances, witnesses may not inspire confidence and it may
create a reasonable doubt favoring the accused.13
28. It`s the duty of the prosecution to provide reliable and truthful evidences to confirm
accused involvement in the matter as it is a settled position of law that findings based on
conjectures and surmises which does not complete the chain of evidences would lead to
acquittal.14 Therefore, in the present case, it is a prudent conclusion that there are serious
contradictions between case and testimonies which should be ground for disbelieving their
evidences.
B. Prosecution has not established alleged motive of the accused.
29. It is a settled position of law that motive has to be established by the prosecution in
cases wherein the guilt of the accused is dependent upon the chain of evidences.15 Proving of
12
Krishna Ghosh v. State of West Bengal, 2009 Cri LJ 2820 (SC).
13
Mahendra Pratap Singh v. State of UP (2009) 11 SCC 334.
14
Sudama Singh v. State of Bihar, 2007 Cri LJ (NOC) 765; See also: Liyakat v. State of Uttarakhand, AIR 2008 SC
2819; State of U.P. v. Desh Raj, AIR 2006 SC 1712; Ramesh Chand v. State of U.P., 1985 Cri. LJ 530.
15
Wakkar v. State of UP, (2011) 3 SCC 306; See also:Tomaso Bruno v. State of UP, Cr. A. No. 142 of 2015.
5
MEMORIAL ON BEHALF OF THE DEFENCE
 motive is necessary and just mentioning motive by itself is not sufficient to prove the guilt.16 In
the present case, prosecution has alleged that the motive behind the crime was that the accused
doubted chastity of his wife. However, nowhere prosecution has been able to establish the
alleged motive. On the contrary, PW2 & PW3 have stated in their testimony that their parents
used to live harmoniously. Therefore, it is safe to conclude that motive alleged by prosecution
is fabricated and holds no ground.
30. That the Hon’ble Supreme Court observed that the golden thread which runs in
Indian Criminal Justice system is that if two views are possible on the evidence adduced in
the case, one pointing to the guilt of the accused and the other to his innocence, the view
which is favorable to the accused should be adopted. 17 The benefit of every reasonable doubt
should be given to the accused.18
31.

16
State of MP through CBI & Ors.v. Paltan Mallah & Ors., 2005 Cri LJ 918.
17
Supra note.
18
State Of Punjab v. Jagir Singh, (1974) 1 S.C.R. 328.
6
MEMORIAL ON BEHALF OF THE DEFENCE
 PRAYER
It is therefore, prayed that, your lordships may graciously be pleased in the light of the facts stated,
issues raised, authorities cited & arguments advanced, the counsel on behalf of Prosecution humbly
submits that the this Hon`ble Principal District and Sessions Court may be pleased to adjudge &
declare that:

The accused person is NOT to be held guilty of the offence under section 302 of Indian Penal
Code, 1860.

AND

Pass any other order that it may deem fit in the interest of justice, equity & good conscience.

ALL OF WHICH IS MOST HUMBLY PRAYED

ON BEHALF OF THE ACCUSED

------------------------------------

------------------------------------

COUNSEL FOR THE DEFENCE

Sd/

7
MEMORIAL ON BEHALF OF THE DEFENCE