WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT

TC – 18

BEFORE

THE HONOURABLE PRINCIPAL DISTRICT & SESSIONS JUDGE

BANGALORE RURAL DISTRICT, BANGALORE

2015

TRIAL UNDER SECTION 177 r/w 209 OF CRIMINAL PROCEDURE CODE

IN THE MATTER OF:

STATE OF KARNATAKA - - - - - - PROSECUTION

V.

UNKNOWN - - - - - - - - DEFENDANT

WRITTEN SUBMISSION ON BEHALF OF THE DEFENDANT

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TABLE OF CONTENTS

1. INDEX OF ABBREVIATIONS - - - - - - II
2. INDEX OF AUTHORITIES - - - - - - - IV
3. STATEMENT OF JURISDICTION - - - - - - VII
4. STATEMENT OF FACTS - - - - - - - VIII
5. QUESTIONS PRESENTED - - - - - - - X
6. SUMMARY OF ARGUMENTS - - - - - - XI
7. PLEADINGS AND AUTHORITIES - - - - - - 1
I. WHETHER PW1, PW2 AND PW3 ARE RELIABLE WITNESS. - - 1
A. THERE IS NO DIRECT EVIDENCE IN PRESENT CASE.
B. TESTIMONY OF PW1 IS NOT RELIABLE.
C. TESTIMONIES OF PW2 AND PW3 ARE NOT RELIABLE.
II. WHETHER SEIZURE MAHAZAR IS VALID. - - - - 3
III. WHETHER THE PROSECUTION HAS BEEN ABLE TO ESTABLISH THE CASE BEYOND
REASONABLE DOUBT. - - - - - - - 4
A. THERE ARE SERIOUS CONTRADICTIONS BETWEEN PROSECUTION CASE AND
TESTIMONIES OF WITNESSES.
B. PROSECUTION HAS NOT ESTABLISHED ALLEGED MOTIVE OF THE ACCUSED.
8. PRAYER - - - - - - - - - XII

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INDEX OF ABBREVIATIONS

¶ Paragraph

& And

A./App. Appeal

AIR All India Reporter

A.P. Andhra Pradesh

All. Allahabad

Anr. Another

Art. Article

Bom. Bombay

CBI Central Bureau of Investigation

CrPC Criminal Procedure Code

Crl. Criminal

Dr. Doctor

DRJ Dispute Resolution Journal

Edn. / Ed. Edition / Editor

FIR First Information Report

Guj. Gujarat

Govt. Government

Hon`ble Honourable

HP Himachal Pradesh

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I.L.R Indian Law Reporter

Id. Ibid

J&K Jammu & Kashmir

Jhar. Jharkhand

L.J. Law Journal

Mr. Mister

Mad. Madras

MP Madhya Pradesh

No. Number

HC High Court

Ors. Others

P.C. Privy Council

Pvt. Ltd. Private Limited

R. Reporter

SCC Supreme Court Cases

SCR Supreme Court Reporter

SC Supreme Court

Sd/ Signed

St. State

U.P. Uttar Pradesh

UOI Union Of India

V. Versus

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INDEX OF AUTHORITIES

CASES REFERRED:-

SUPREME COURT

1. Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67.

2. Babuli v. State of Orissa, AIR 1974 SC 775.

3. Bhagwan Singh & Ors. v. State of MP, AIR 2003 SC 1088.

4. Ganga Prasad v. State of UP,(1987) 2 SCC 232.

5. Krishna Ghosh v. State of West Bengal, 2009 Cri LJ 2820 (SC).

6. Kiran Bedi & Ors v. Committee of Inquiry & Anr., (1989) 1 SCC 494.

7. Liyakat v. State of Uttarakhand, AIR 2008 SC 2819.

8. Mahndra Pratap Singh v. State of UP, (2009) 11 SCC 334.

9. Mujeeb & Anr. v. State of Kerela, (2000) 10 SCC 315.

10. Neel Kumar v. State of Haryana, (2012) 5 SCC 766.

11. Reddy Sampath Kumar v. State of AP, 2005 Cri LJ 4131.

12. Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

13. State of MP v. Ramesh & Anr., (2011) 4 SCC 786.

14. State of UP v. Desh Raj, AIR 2006 SC 1712.

15. State of UP v. Satish AIR 2005 SC 1000.

16. State of M.P. through CBI & Ors. v. Paltan Mallah & Ors., 2005 Cri LJ 918.

17. Tomaso Bruno & Anr. v. State of UP, Cri. App. no. 142 of 2015.

18. Wakkar v. State of UP, (2011) 3 SCC 306.

HIGH COURT

1. Basant Agarwaal v. State, (2006) 1 Crimes 115 (MP).

2. Dushyant v. State of Gujarat, CR.MA/15361/2011.

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3. Prakash Sen v. The State, 1988 Cr LJ 1275.

4. Raj Kishor Rai vs. State of Bihar, Cri. App. (SJ) No. 128 of 2011, MANU/BH/0038/2014.

5. Ramesh Chand v. State of UP, 1985 Cri. LJ 530.

6. State of Maharashtra v. Shriram Gangaram Ghoderao, 1997 Bom CR (Cri) (A) 549.

7. State of HP v. Roshan Lal, AIR 1989 HP 67.

8. Sudama Singh v. State of Bihar, 2007 Cri LJ (NOC) 765 (Jhar.)

9. Sudir Engineering Company v. Nitco Roadways Ltd.,1995 (34) DRJ 86.

STATUTES AND OTHER AUTHORITIES:-

1. Indian Penal Code, 1860

2. Code of Criminal Procedure, 1973

3. Indian Evidence Act, 1872

JOURNALS REFERRED:-

1. All India Reporters

2. Supreme Court Cases

3. Criminal Law Journal

4. Crimes

BOOKS REFERRED:-

1. K. Takwani & M.C. Takwani, Criminal Procedure (3rd Ed., Lexis Nexis

Butterworths Wadhwa, Nagpur, 2011)

2. Dr. K. I. Vibhute, P S A. Pillai Criminal Law (11th Ed., Lexis Nexis Butterworths

Wadhwa, Nagpur)

3. John Woodroffe, Commentaries On Code Of Criminal Procedure, 1972 (Law

Publishers (India) Pvt. Ltd., 2009)

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4. Justice C.K. Thakkar, Encyclopedia Law Lexicon, (Ashoka Law House, New Delhi,

2010)

5. Justice GP Singh, Principles Of Statutory Interpretation (13th Ed., Lexis Nexis

Butterworths Wadhwa, Nagpur)

6. K.D. Gaur, Criminal Law Criminology and Administration of Criminal Justice

(3rdEd.,Universal Law Publishing Co Pvt Ltd., 2015)

7. K.D. Gaur, Commentary on the Indian Penal Code (2nd Ed., Universal Law

Publishing Co Pvt Ltd., 2013)

8. M.R. Mallick, R.K. Bag, A.N. Saha Criminal Reference (6th Ed., Eastern Law

House, 2009)

9. Modi Jaising, Medical Jurisprudence and Toxicology (23rd Ed., Lexis Nexis

Butterworths, 2006).

10. R. P Kathuria`s, Law of Crimes and Criminology (3rd Ed., Vinod Publications,

2014)

11. S.C. Sarkar, P.C. Sarkar & Sudipto Sarkar, The Code Of Criminal Procedure (11th

Ed., Lexis Nexis Butterworths Wadhwa, 2015)

12. Underhill`s Criminal Evidence, Fifth Ed. Vol. I, page. 664.

DATABASE REFERRED:-

1. http://www.scconline.com (last visited on 15th January, 2016).

2. http://www.manupatra.com (last visited on 15th January, 2016).

3. http://www.westlaw.org (last visited on 15th January, 2016).

4. http://www.indiankanoon.com (last visited on 15th January, 2016).

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STATEMENT OF JURISDICTION

The counsels representing the prosecution have endorsed their pleadings before the Hon`ble
Principal District & Sessions Court, Bangalore, under Section 1771 r/w 2092 of the Code of
Criminal Procedure, 1973 in which the Hon`ble Court has the jurisdiction.

The present memorandum sets forth the facts, contentions and arguments.

1
177. Ordinary place of inquiry and trial—Every offence shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed.
2
209. Commitment of case to Court of Session when offence is triable exclusively by it—When in a case
instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall—
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to
the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody
until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the
conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in
evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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STATEMENTS OF FACTS

For the sake of brevity and convenience of the Hon`ble Court the facts of the present case are
summarized as follows:

RELEVANT INCIDENT
On 26.07.2008 at about 1:15 am, the accused committed murder of his wife, Sheela, in his
house in Varthur by stabbing her with a knife, when she cried out for help, both the children
got up and saw that the accused was there and that their mother had already been stabbed. On
being stabbed, the deceased started moving toward the front door but she could not go out of
the house.
INFORMATION TO POLICE
The children rushed to the house of their maternal uncle, Shankara, who is the complainant
and resides in the immediate vicinity of the house of the accused. However, the children also
stated in their testimony that one of them had gone directly to the beat police stationed around
500 metres away from their house and alerted them. The complainant, along with other
relatives, came to the scene and saw the deceased lying in a pool of blood in front of the
neighbour’s house. The beat police were also present at the scene by the time the complainant
came there. The deceased was shifted by the complainant and the police in an injured
condition to the hospital, where she died at 6:20 am while undergoing treatment.
FIR AND ARREST
The statement of Shankara was recorded by the police at the hospital on the basis of which the
first information report was prepared at 5:30 am. The accused was arrested and investigation
was conducted by the police into the said incident. The police completed investigation and
submitted the charge sheet with 42 witnesses.
POLICE INVESTIGATION
MO6 and MO7 which are two knives recovered from the house of the accused. Prosecution
introduced these as the murder weapon. At the time the police seized MO6 and MO7 from the
scene of the crime, a seizure mahazar Ex. P4 was drawn up. One of the witnesses to the
seizure, PW11, who also signed the mahazar, on his cross examination, states that he did not
read the contents of the mahazar. He also stated that he was illiterate and only knew how to
write his name (signature).

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RECORDING OF EVIDENCE
Shankara was examined as PW1 and stated that the accused had stabbed the deceased thereby
killing her. Shankara further states that after the death of his wife, her two children are living
with him and his family. He said that on the night of the murder, the two children came
running to his house at around 1:30 am and said that their mother had been murdered. The
prosecution examined the two children as PW2 and PW3 who stated that their father and
mother used to live harmoniously. However, the witnesses also stated that the accused
murdered the victim.
PW7 is the driver of the police jeep which was parked at the beat police check post 500
meters away from the scene of the crime. He testifies that one child aged around 6 years came
running to him on the night of the murder. He said that the child was crying and managed to
tell him to come to his house because his mother had been murdered. Thereafter, PW7
immediately left with the child to reach the scene of the crime, where some people had
already assembled. He states that the murder victim was lying in a pool of blood in front of a
house. Thereafter, he immediately contacted the jurisdictional police station, Varthur and
informed the SHO on duty of the occurrence of a cognisable offence within the police station
limits. This was around 1:45 am.
PW8 is the SHO on duty at the time the murder was committed. He admits to having received
the wireless communication from PW7 and states that he immediately dispatched 2 police
constables and another police jeep to go to the murder scene and guard the area. Thereafter, at
around 4:30 am, he himself proceeded to the hospital to record the dying declaration of the
victim and the complaint.
PW12 is the treating doctor at the hospital who treated the victim, He testifies that the victim
was in a fit condition to make a statement till 12 around 4 am and after that she lost
consciousness until she died at around 6:20 am. He states that the cause of the death was
excessive haemorrhage and trauma due to lacerated cuts which had penetrated portions of the
colon, stomach and liver of the victim. His version is verified by the post mortem report, Ex
P3.
FINAL ARGUMENTS
The present case is now before the Hon`ble Principal District & Sessions Judge, Bangalore
Rural District, Bangalore for the Final Arguments.

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QUESTIONS PRESENTED

The following questions are presented before this Hon`ble court for adjudication in the instant
matter:

I. WHETHER PW1, PW2 AND PW3 ARE RELIABLE WITNESSES.

II. WHETHER SEIZURE MAHAZAR IS VALID.
III. WHETHER THE PROSECUTION HAS BEEN ABLE TO ESTABLISH THE CASE BEYOND

REASONABLE DOUBT.

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SUMMARY OF ARGUMENTS

I. PW1, PW2 AND PW3 ARE NOT RELIABLE WITNESS.

Firstly, PW1 is not a reliable witness because he was never present when murder was
committed.
Secondly, PW 2 and PW3 are not reliable witness as they were tutored by PW1.
Thirdly, PW 2 and PW3 were not admitted oath at the time of recording of evidences which
establish that judge was having doubt in the credibility of child witnesses.

II. SEIZURE MAHAZAR IS NOT VALID.

Firstly, injuries caused to the deceased were the result of a blunt weapon.
Secondly, seizure mahazar is not valid as the signatory to it was unaware about the contents
of it and was not able to prove the contents and whatever happened at search location is
irrelevant.

III. PROSECUTION HAS BEEN ABLE TO ESTABLISH THE CASE BEYOND REASONABLE DOUBT.
Firstly, prosecution has not been able to establish its case beyond reasonable doubt as there
are serious contradictions between prosecution story and testimonies of witnesses.
Secondly, prosecution was also not able to establish the alleged motive of the accused.
Thirdly, accused is not liable to give any explanation under section 313 of CrPC, 1973
because prosecution could not establish its case.

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PLEADINGS AND AUTHORITIES

I. PW1, PW2 AND PW3 ARE NOT RELIABLE WITNESSES.

1. It is humbly submitted before this Hon’ble Court that PW1, PW2 and PW3 are not reliable
witnesses. There is no eye witness in this case which is very important in establishing the
case prima facie. 3 Judge himself omitted the oath in examination of PW2 and PW3 which
means credibility of such witnesses is dubious. Testimony of PW1 against the accused is also
not reliable because he was never present at the murder site and was informed about the death
of his sister by PW3. Finally, testimony of PW2 and PW3 is not reliable because they were
tutored by PW1. This argument is threefold:
A. THERE IS NO DIRECT EVIDENCE IN THE PRESENT CASE.
2. 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. It is significant
to mention that a witness has to state only those facts which he has seen. A witness can’t infer
anything from the circumstances, such power lies only with court.4 Prosecution in its story
nowhere established that Children saw accused assaulting the deceased. Thus, Prosecution
has failed to produce any direct evidence.
B. TESTIMONY OF PW1 IS NOT RELIABLE.
3. PW1 i.e. maternal uncle 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 5
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 murdererof victim. It is well settled legal principle that
suspicion, however strong it may be cannot take the place of proof.6 Therefore, testimony of
PW1 is not reliable in present case and should be rejected.

3
Dushyant v. State of Gujarat, CR.MA/15361/2011.
4
Babuli v. State of Orissa, AIR 1974 SC 775.
5
Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1.
6
Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67; See also: Reddy Sampath Kumar v. State of A.P., 2005
Cri LJ 4131; Basant Agarwaal v. State, (2006) 1 Crimes 115 (MP).

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C. TESTIMONIES OF PW2 AND PW3 ARE NOT RELIABLE.

4. Both the children PW2 and PW3 have specifically mentioned in their testimony that accused
had murdered the victim. It is questionable that how they came to this conclusion that
accused murdered the deceased, despite of the fact that they had never seen accused
committing the murder. As per the story of the prosecution mother had been already stabbed
when children awake from their sleep. It means that children could not have seen accused
assaulting the victim but in their testimony, they have named accused as murderer of victim.
5. Aforementioned proposition can be affirmed through two instances which occurred soon after
the death. Firstly, PW2 soon after the death of the victim ran to PW7 and stated that his
mother has been murdered. Secondly, PW3 soon after the death of the victim ran to PW1 and
he also stated only that his mother has been murdered. Both of them did not take the name of
their father as murderer to PW7 and PW1 respectively. Both the children stated the same
thing at the same time at different places soon after the death of victim which means
whatever both had seen they had only stated that thing. However, at the time of recording of
evidences, both the children narrated entirely different story from what they have stated to
PW1 and PW7 and stated that accused had murdered the victim. In reality PW2 & PW3 had
never seen accused at the crime scene. They had seen only the stabbed body of the mother.
This serious variance in statements of PW2 & PW3 leads to this prudent conclusion that both
the children were tutored by PW1 who himself is untrustworthy witness in this case.
6. 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. It is settled proposition of law
that a child must explain the relevant events of the crime without improvements or
embellishments, and the same should inspire confidence of the Court then only such child
witness can be relied.8
7. Furthermore, Judge had also doubt regarding the credibility of the children that is why he did
not administer oath to both the children. It is pertinent to mention here that omission of oath
directly affects credibility of the child witness. 9
8. It is also important to mention that in the present case children were administered the oath at
the time of cross examination. However, administration of oath at the time of cross

7
Bhagwan Singh & Ors.v. State of MP, AIR 2003 SC 1088.
8
State of MP v. Ramesh & Anr., (2011) 4 SCC 786.
9
Rameshwar v. State of Rajasthan, AIR 1952 SC 54; See also: Raj Kishor Rai v. State of Bihar, Cri. App. (SJ)
No. 128 of 2011, MANU/BH/0038/2014.

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examination is only relevant to extract truth or false from the mouth of the witness and
nothing more than that.10 This oath is different from the oath which is administered at the
time of examination in chief because at the time of examination in chief, it is expected from
the witness that he would narrate the scene without any change. However, in cross
examination, witness is required to give true answers regarding his own testimony and no
question can be asked beyond his testimony. Thus, administration of oath at the time of cross
examination is irrelevant to determine credibility of the child witness.
9. Hence, serious variances in the statements of the child witnesses and the lack of faith by
judge in them clearly establish that both children were tutored.

II. SEIZURE MAHAZAR IS NOT VALID.

10. 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, it has to be seen that what kind of weapons
can cause lacerated wounds.
11. Medical Classification of wound says, 11-
 Blunt forces injuries- can be abrasions, contusions or lacerations.
 Injuries caused by sharp cutting weapons are incised wounds.
 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.
12. In Ganga Prasad v. State of UP12, 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.”
13. Thus, the above facts and case law establish that the injuries caused to the deceased were the
result of using a blunt weapon or the blunt side of the sharp weapon and not by MO6 & MO7
which are two knives.
14. Furthermore, it is submitted that circumstances of the present case indicate that well settled
principles regarding proof of seizure memo are not corresponded, thus, renders it invalid in
eyes of law.

10
Kiran Bedi & Ors v. Committee Of Inquiry & Anr., (1989) 1 SCC 494.
11
Modi Jaising, Medical Jurisprudence And Toxicology, 23rd Ed., Lexis Nexis Butterworths, 2006.
12
(1987) 2 SCC 232.

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15. As per the settle position of the law it is required that the contents of the seizure memo have
to be proved by the person signatory to it. 13 Section 61 of the Evidence Act also states that
contents of document should be proved by way of primary evidence or by way of secondary
evidence. Thus, seizure mahazar has to be proved through the signatory and whatever
happened at search location is irrelevant unless it is affirmed through seizure mahazar.
16. As per the above principle laid down by Court it is to be ensured that the facts of the
panchnama or seizure memo are proved by the panch himself. However, that has not
happened in the instant matter.
17. 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.
18. Therefore, it can be safely concluded that the seizure mahazar in the present case is invalid
and not deserved to be considered by court for deciding present matter. 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.
19. 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.

20. It is a settled position of law that the circumstances from which an inference as to the 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.14
21. 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.

13
State of Himachal Pradesh v. Roshan Lal, AIR 1989 HP 67; See also: Sudir Engineering Company v. Nitco
Roadways Ltd., 1995 (34) DRJ 86.
14
Krishna Ghosh v. State of West Bengal, 2009 Cri LJ 2820 (SC); See also: Mujeeb & Anr. v. State of Kerela,
(2000) 10 SCC 315; and State of UP v. Satish, AIR 2005 SC 1000.

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22. 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 neighbour`s house from where she was shifted to the hospital. Since, the body is
found in front of neighbour`s house, therefore, there is high possibility that the incident in
question occurred outside the accused house.
23. 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. This part of the story of prosecution is contradictory to the testimonies of PW2,
PW3 & PW7. Both PW2 & PW3 have stated in their testimony that one of them had gone
directly to the beat police stationed around 500 meters away i.e. to PW7. 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. 15
24. 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.16
25. Therefore, in the present case, it is a prudent conclusion that there are serious contradictions
between prosecution case and witnesses testimonies which should be a ground for
disbelieving and discrediting their evidences.
B. PROSECUTION HAS NOT ESTABLISHED ALLEGED MOTIVE OF THE ACCUSED.
26. 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. 17 Proving of
motive is necessary and just mentioning motive by itself is not sufficient to prove the guilt. 18
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

15
Mahendra Pratap Singh v. State of UP (2009) 11 SCC 334; See also: State of Maharashtra v. Shriram
Gangaram Ghoderao, 1997 Bom.CR (Cri) (A) 549.
16
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.
17
Wakkar v. State of UP, (2011) 3 SCC 306; See also:Tomaso Bruno v. State of UP, Cr. A. No. 142 of 2015.
18
State of MP through CBI & Ors.v. Paltan Mallah & Ors., 2005 Cri LJ 918.

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establish the alleged motive. On the contrary, PW2 & PW3 have stated in their testimony that
their parents used to live harmoniously.
27. Therefore, it is safe to conclude that the motive alleged by the prosecution is fabricated and
holds no ground.
C. DENIAL TO GIVE ANY EXPLANATION REGARDING OFFENCE ALLEGED AGAINST HIM

UNDER SECTION 313 OF Cr.P.C. DOES NOT LEAD TO ANY CONCLUSION.

28. In the present case, denial of accused to give any explanation regarding the incriminating
circumstances which were put before him does not lead to any conclusion because as per the
position of law first of all prosecution has to prove its case, then only if accused fails to give
explanation, such failure can be used as additional link in the chain of evidences. 19
However, in present case accused was examined under section 313 of CrPC only after
recording of the evidences and no arguments were made. It means at the time of examination
under section 313 of CrPC incriminating circumstances were never proved by the
prosecution. It is established position of law that mere silence on part of a person or absence
of explanation shall not lead to the inference that the person is guilty of offence. 20 Therefore,
his refusal to give explanation at the time of examination has no adverse effect on the case of
the defence.
29. Hence, PW1, PW2 & PW3 are not reliable witnesses, seizure mahazar is not valid and
prosecution has not been able to establish the case beyond reasonable doubt.

19
Neel Kumar v. State of Haryana, (2012) 5 SCC 766.
20
Prakash Sen v. The State, 1988 Cr LJ 1275.

-MEMORANDUM FOR THE DEFENDANT- Page 6

 31ST ALL INDIA INTER-UNIVERSITY MOOT COURT COMPETITION – 2015

PRAYER FOR RELIEF

Wherefore, in light of the facts stated, issues raised, authorities cited & arguments advanced

may this Hon`ble Court be pleased to adjudge & declare that:

1. PW1, PW2 and PW3 are not reliable.

2. Seizure Mahazar is invalid.

3. Prosecution is failed to establish the case beyond reasonable doubt.

4. Accused is granted acquittal.

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

ACCUSED

Counsel for the Defendant

Sd/

-MEMORANDUM FOR THE DEFENDANT- Page XII