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 PROSECUTION

MEMORIAL ON BEHALF OF THE PROSECUTION

 TABLE OF CONTENTS

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

I. PROSECUTION HAS BEEN ABLE TO ESTABLISH CHAIN OF

CIRCUMSTANCES...............................................................................1

A. MURDER WAS COMMITTED INSIDE THE ACCUSED HOUSE..............................................1

B. MURDER WAS COMMITTED BY MO6 & MO7 AND SEIZURE MAHAZAR IS VALID...........1

C. CONDUCT OF THE ACCUSED IS INCRIMINATING AGAINST HIM.....................................2

D. EXCLUSIVE OPPORTUNITY TO MURDER WAS WITH THE ACCUSED...............................3

II. TESTIMONIES OF PW2, PW3, AND PW1 ARE CREDIBLE..................3

A. NON-ADMINISTERING OF OATH TO PW2 & PW3 DOES NOT UNDERMINE THEIR

CREDIBILITY....................................................................................................................................4

B. THERE IS NO TUTORING OF PW2 AND PW3..........................................................................4

C. PW1 IS A RELIABLE WITNESS...................................................................................................5

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

MEMORIAL ON BEHALF OF THE PROSECUTION

 ARGUMENTS ADVANCED

I. PROSECUTION HAS BEEN ABLE TO ESTABLISH CHAIN OF

CIRCUMSTANCES.
1. It is humbly submitted before this Hon’ble Court that accused can be declared guilty if prosecution
establishes chain of circumstances.1 In the present case circumstantial evidences are very clear.
Victim was murdered inside the accused house, weapons were recovered in house of the accused,
accused failed to give any explanation under section 313 of Cr.P.C. and most importantly he could
be the only one who could have murdered the victim. 2 Thus, in present case chain of evidence can
be established through above propositions, which are following:

A. MURDER WAS COMMITTED INSIDE THE ACCUSED HOUSE.

2. It is humbly submitted before this Hon`ble Court that PW2 & PW3 have stated that their mother
was murdered by their father, which confirms their presence at the murder site. However, they have
not stated anything regarding the location of the body because soon after the incident they only saw
deceased crying for help then they ran away from the scene. This omission regarding the location of
the body in the statement of the PW2 & PW3 affirms story of prosecution because prosecution has
only stated that soon after the stabbing deceased started moving towards the front door but she
could not go out of the house.

3. Therefore, after the departure of both the children, what happened, prosecution has not included that
in their story. It is evident that she would have struggled to go out of the house to save her from
accused but could only managed to go to front of the neighbor’s house.

4. Thus, after correlating prosecution`s story and statement of PW2 & PW3, it can be easily inferred
that deceased was murdered in the room where PW2, PW3, accused and deceased were sleeping.

5. In addition to the aforementioned submissions, it is imperative to note that if deceased would have
been murdered outside the house of the accused so first person to hear her voice or to observe her
body would be neighbors because she was lying outside their house. However, they were PW2 &
PW3, who came to know about the incident which further establishes that murder was certainly
committed inside the accused house.

B. MURDER WAS COMMITTED BY MO6 & MO7 AND SEIZURE MAHAZAR IS VALID.

6. In the present case prosecution has introduced MO6 & MO7 as murder weapons which are two
1
Harish Ramesh Pulekar v. The State Of Maharashtra, C.A. no.1035 of 2008.
2
Ajit Savant Majagvai v. State of Karnataka, AIR 1997 SC 3255.
1
MEMORIAL ON BEHALF OF THE PROSECUTION
 knives, recovered from the house of the accused. Since it has been established that stabbing took
place inside the house and the only weapons recovered from the house are MO6 & MO7, then this
directly can be related to the fact that these two weapons have direct connection with the injuries
caused to the victim.3

7. It is significant to mention here that victim was found lying in a pool of blood which confirms that
bleeding was external instead of internal. It is also imperative to note that in the lacerated cuts there
were penetrated portions of colon, stomach and liver which means that cuts were deep. In various
celebrated cases also experts have established that weapons like MO6 & MO7 have caused
lacerated cuts.4

8. Hence, it establishes that on the night of the incident due to penetration of MO6 & MO7 into liver,
stomach and colon there was excessive external hemorrhage from the body of the victim which
resulted in her death.

9. In addition to the aforementioned submission, it is submitted before this Hon`ble court that, where
witness to the seizure mahazar on his cross examination states that he did not read the contents of
the mahazar, it will not be enough to disbelieve the prosecution version.5

10. It is also submitted that in the case of Kadiya Kanbi Bhavan Monju v. Ismail Mamad,6 it was
held, ―A panchnama cannot be treated as substantive evidence of the fact recorded therein. The
facts have to be proved independently of the panchnama by the testimony on oath of the panch who
had seen these facts and who is a party to the panchnama.

11. Furthermore, prosecution case is also affirmed by duty on the police officer to read out the
contents of the mahazar to the witness of the seizure mahazar as it is an obligatory duty on the part
of police officials to read out the contents of the mahazar as per Karnataka State Police Manual
which is a mandate as it is framed under Karnataka Police Act, 1963.

C. CONDUCT OF THE ACCUSED IS INCRIMINATING AGAINST HIM.

12. In cases of circumstantial evidence conduct of the accused before the crime and after the crime
is very significant.7 In present case conduct of the accused during the trial has raised serious doubts

3
Vikas Alias Vicky Alias Ponga v. State Govt. of NCT Delhi Crl. A. 992/2011, MANU/DE/0242/2015.
4
Sudalaimani v. State, II (2015) CCR 218 (Mad.).
5
State v. Paramasivam, CRL.A.No.15 of 2002 (Madras HC), MANU/TN/2056/2009
6
AIR 1955 SAU 32; See also: Kanubhai Virjibhai v. State, 2014 (1) GLR 655.
7
State of Maharashtra v. Kunda Zaverchand Sheth & Amit Sheth, 2013 (3) ABR 1348.
2
MEMORIAL ON BEHALF OF THE PROSECUTION
 regarding his innocence as he has failed to give explanation under section 313 of Cr.P.C. regarding
his presence on the night of the incident, statement of the PW2 & PW3 and recovery of the weapons
from his house. Apex Court of India has confirmed this proposition that it is the duty of the accused
to explain the incriminating circumstances put before him while making a statement under section
313 of Cr.P.C.8 Thus, failure to give explanation regarding incriminating circumstance put before
him under section 313 of Cr.P.C is an additional link in the chain of circumstances to sustain the
charges against him.9

D. EXCLUSIVE OPPORTUNITY TO MURDER WAS WITH THE ACCUSED.

13. In cases of circumstantial evidences it is very important to establish chain of circumstances and one
of the most important aspects of this chain is to establish that only accused had final opportunity to
murder the victim.10 It has been established that accused was present at the murder scene on the
fateful day, murder was also committed inside the house of the accused and MO6 & MO7 are also
recovered from the house of the victim. Apart from this, another instance has to be taken into
consideration that soon after the murder of victim, PW2 and PW3 rushed to the house of PW1
instead of going to the accused. Therefore, except accused no one had exclusive opportunity to
murder the victim.11

14. Hence, prosecution has been able to establish chain of evidence because no other inference 12 can
be drawn except that accused murdered the victim 13 which is the most important variable in cases
based on circumstantial evidence.14

15. In addition to this, it is important to mention that once chain of evidence is established then there
is no need to show motive.15 Motive remains in the mind of the person that is why in cases of
circumstantial evidences it is not relevant to prove motive once chain of circumstances has been
established.16 Thus, motive loses its importance when chain of evidence is established.17

II. TESTIMONIES OF PW2, PW3, AND PW1 ARE CREDIBLE.

16. In the present case testimonies of PW2, PW3 and PW1 are valid and omission of oath is

8
Neel Kumar v. State of Haryana, (2012) 5 SCC 766.
9
Holiram Bordoloi v. State of Assam, AIR 2005 SC 2059.
10
State of Karnataka v. Haji Mohamed Ibrahim, ILR 1990 Karnataka 1973.
11
Sirima Narasimha Rao etc. v. State of AP, 2010 Cri LJ 769.
12
Bodh Raj v. State of J & K, AIR 2002 SC 3164.
13
Geejaganda Somaiah v. State of Karnataka, 2007 Cri. LJ 1792 (SC).
14
Umed v.State of Gujaarat, AIR 1978 SC 424.
15
Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106.
16
State of UP v. Kishanpal & Ors., 2008 16 SCC 73.
17
Hari Shankar v. Stat of UP, (1996) 9 SCC 40.
3
MEMORIAL ON BEHALF OF THE PROSECUTION
 irrelevant. There was no tutoring of PW2 and PW3 by PW1 as there were major variances in the
statement of children and maternal uncle; if children would have been tutored then there could not
be such major variances. PW1 is also a reliable witness because in given circumstances he
understood the situation correctly and soon after the crime in FIR he named accused as killer which
establishes that there was no ill will behind the statement of the PW1.

A. NON-ADMINISTERING OF OATH TO PW2 & PW3 DOES NOT UNDERMINE THEIR

CREDIBILITY.
17. It is humbly submitted before this Hon’ble Court that non-administration of oath by the Hon’ble
judge at the time of examination does not undermine the credibility of their testimonies. In the
present matter, Court intentionally omitted to administer the oath to the child witnesses PW2 and
PW3 as they could not understand its nature or sanctity, but still continued to take their evidence,
shows that Court was satisfied that the child witnesses have sufficient intelligence to understand an
obligation to state truth before the Court.18

18. As per sections 4 and 7 of Indian Oaths Act, 1969, in cases of child witness under twelve years
of age, absence of an oath or affirmation shall not render inadmissible any evidence given by such
witness nor affect the obligation of the witness to state the truth. 19 In simpler words, even in the
absence of oath the evidence of a child witness can be considered under Section 118 of the evidence
Act. The evidence of a child witness and credibility thereof would depend upon the circumstances
of each case.20

19. In the present case, PW2 was having knowledge to approach beat police just after the incident as
he was aware of the fact that police protect the people. Furthermore, the conduct of PW3 to rush to
the home of PW1 and managing to tell the incident establishes his credibility. Thus, from the
immediate action of the PW2 and PW3 in such circumstances, it can be easily inferred that the
children had basic understanding to realize the act of murder 21 which establishes their credibility22
and non-administration of oath to them by Court at the time of examination has no relevance with
the credibility of their testimonies.

B. THERE IS NO TUTORING OF PW2 AND PW3.

20. It is humbly submitted that in the present case, there is no tutoring of PW2 and PW3 by PW1. It
18
State of Punjab v. Hari Singh, AIR 1974 SC 1168.
19
Sections 4 & 7, Oaths Act.
20
Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.
21
State of U.P. v. Krishna Master, (2010) 12 SCC 324; See also: State of Karnataka v. Shariff, (2003) 2 SCC 473.
22
Ghasi Ram v. State, 1952 CriLJ 1366 (MP HC).
4
MEMORIAL ON BEHALF OF THE PROSECUTION
 is a settled position of law that an inference as to whether child has been tutored or not, can be
drawn from the contents of his deposition.23

21. In the present case, PW2 & PW3 were living with PW1 for two years after the incident.
However, this fact does not establish that children were tutored. It was natural for them to live with
their maternal uncle as he was their closest relative after the death of their mother. There are various
other facts and circumstances which have to be taken into consideration to determine credibility of
PW2 & PW3.24

22. Firstly, there are variances in the testimonies of PW2 & PW3 and the testimony of PW1 in
relation to the movement of both PW2 & PW3 after the incident, which logically suggests that there
is no tutoring of PW2 and PW3 by PW1 because if there have been so, it would be natural for PW2
& PW3 to state same instance in their testimony.

23. Secondly, PW2 and PW3, in their testimony have stated that accused and victim were having
harmonious relationship. It is imperative to note that, if there have been tutoring of the above
witnesses; their answer to the above point would be in direct conflict to the above part of the
testimony.

24. Considering all the above points, competency and credibility of PW2 and PW3 is proved beyond
any doubt. Further, the possibility of tutoring is also ruled out in the present case.

C. PW1 IS A RELIABLE WITNESS.

25. In the present case PW1 has stated in his testimony as well as in FIR that the accused had
stabbed the deceased thereby killing her. Victim was alive when FIR was lodged by the PW1. Now,
it is important to note the relation between PW1 and the deceased. When his sister is on the death
bed, he would think about her life rather than creating a false story against the accused particularly
when time between the incident and death is very less. 25 If PW1 would have any ill will towards the
deceased, he would have tutored PW2 and PW3 in the two years period. However, it has already
been established that children were never tutored by PW1. Statement of the PW1 can be
corroborated with the FIR26 because in both he named accused as the murderer.

26. In addition to above, PW 1 stated in his testimony that her sister was stabbed which was later on

23
State of MP v. Ramesh & Anr, (2011) 4 SCC 786.
24
Supra note 6.
25
Underhill’s Criminal Evidence, Fifth d. Vol. I, p. 664.
26
Section 157, Cr.P.C, 1973.
5
MEMORIAL ON BEHALF OF THE PROSECUTION
affirmed in post mortem report. It is imperative to understand that PW1 was closest relative of the
victim which means certainly he would have this knowledge that only four persons would be at
home. Therefore, he rightly inferred in his statement that accused murdered the victim. Thus, PW1
is credible witness and his testimony is valid.

6
MEMORIAL ON BEHALF OF THE PROSECUTION
 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 to be held guilty of the offence under section 302 of Indian
Penal Code, 1860.

AND/OR

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 STATE

COUNSEL FOR THE PROSECUTION

Sd/

MEMORIAL ON BEHALF OF THE PROSECUTION