IN THE COURT OF HON'BLE SESSIONS JUDGE

STATE PROSECUTION

VERSUS

Bobby etc. ACCUSED

MEMORIAL FOR THE ACCUSED

SUBMITTED TO SUBMITTED BY

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 TABLE OF CONTENTS

Proposition……………………………………………………………………

List of Abbreviations………………………………………………………...

Index of Authorities ……………………………………….......................

Jurisdiction……………...………………………………………………....

Statement of Facts……….. …………………………………………...........

Question of law …………………………………………………………….

Arguments…… ………………………………………………………..

Prayer………………………………………………………. ………… …..

Relevant Sections…..……………………………………………………….

Power of Attorney…………………………………………………….

Authorities……………………………………………………………..

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 PROPOSITION

On 24.05.1998, the police reached the crime scene at about 3.15 am and the first
information report was lodged by Sohan after consulting his family members. Sohan stated that
at 12.15 am, about 14 to 15 unknown person committed dacoity in his and his uncle's house that
is adjacent to his house. The dacoits looted cash, gold chains, gold rings and other household
items from the two houses. Ishwar and Govind sustained injuries from sticks used by the
assailants while Madhukant, informant's uncle, ageda bout 75 years was fired at by one of the
assailants and he died on the spot. The first information report did not provide any of the names
of the dacoits but Sohan claimed that he and the family members of his deceased uncle could
identify the dacoits. After investigation charge sheet was filed against Pintu Pal, Bobby and
Kishore under Section 396 and 412 of IPC.

Only Pintu Pal was subjected to Test Identification Parade (TIP) during
investigation and was identified only eyewitnesses of the dacoity. However, Pintu Pal was
found to be juvenile on the date of offence, so his case was forwarded to the board constituted
to deal with juvenile Justice. For identification of Bobby and Kishore no TIP was held but they
were identified in the Court by Mohan Only. Mohan belongs to the family of deceased and
name of Mohan as eyewitness was not mentioned in the FIR. Family of deceased knew the
names of Bobby and Kishore as the deceased had some animosity with them.

The police did not make recovery of any weapon used to commit the offences.
Any cash, old chains, gold rings or other household articles were also not recovered by the
police. Only a dhoti, a blouse and a nose stud was recovered and each was identified by a
separate witness. The two accused, Bobby and Kishore were charged under Section 396 and
412 of IPC.

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 .LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

Cri L J CRIMINAL LAW JOURNAL

Cr.P.C CRIMINAL PROCEDURE CODE

HC HIGH COURT

Hon’ble HONORABLE

PW PROSECUTION WITNESS

SC SUPREME COURT

U/S UNDER SECTION

V. VERSUS

C.P.C. CIVIL PROCEDURE CODE

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 INDEX OF AUTHORITIES

Cases Referred

 Kanta Prashad v. Delhi Administration, 1958 CrilJ 698

 Vaikuntam Chandrappa & Ors. v. State of Andhra Pradesh, AIR 1960 SC 1340].

Statute Referred

 CRIMINAL PROCEDURE CODE

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 JURISDICTION

The Offences under Sections 396 & 412 of IPC are triable by the Court of

Hon'ble Sessions Judge, therefore this Hon'ble Court has got the jurisdiction to entertain

and decide the present case.

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 STATEMENT OF FACTS

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

On 24.05.1998, the police reached the crime scene at about 3.15 am and the first
information report was lodged by Sohan after consulting his family members. Sohan stated that
at 12.15 am, about 14 to 15 unknown person committed dacoity in his and his uncle's house that
is adjacent to his house. The dacoits looted cash, gold chains, gold rings and other household
items from the two houses. Ishwar and Govind sustained injuries from sticks used by the
assailants while Madhukant, informant's uncle, ageda bout 75 years was fired at by one of the
assailants and he died on the spot. The first information report did not provide any of the names
of the dacoits but Sohan claimed that he and the family members of his deceased uncle could
identify the dacoits. After investigation charge sheet was filed against Pintu Pal, Bobby and
Kishore under Section 396 and 412 of IPC.

Only Pintu Pal was subjected to Test Identification Parade (TIP) during
investigation and was identified only eyewitnesses of the dacoity. However, Pintu Pal was
found to be juvenile on the date of offence, so his case was forwarded to the board constituted
to deal with juvenile Justice. For identification of Bobby and Kishore no TIP was held but they
were identified in the Court by Mohan Only. Mohan belongs to the family of deceased and
name of Mohan as eyewitness was not mentioned in the FIR. Family of deceased knew the
names of Bobby and Kishore as the deceased had some animosity with them.

The police did not make recovery of any weapon used to commit the offences.
Any cash, old chains, gold rings or other household articles were also not recovered by the
police. Only a dhoti, a blouse and a nose stud was recovered and each was identified by a
separate witness. The two accused, Bobby and Kishore were charged under Section 396 and
412 of IPC.

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 QUESTION OF LAW

Q. Whether any omission of recording name of eyewitness in the FIR, is fatal for the
prosecution case?
Q. Whether non-conduction of Test Identification Parade could be fatal for proving the
prosecution case?
Q. Whether no recovery of any weapon used in offence is fatal for the prosecution case?

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 ARGUMENT

Q. Whether any omission of recording name of eyewitness in the FIR, is fatal for the

prosecution case?

Ans. Yes, we need to concentrate concerns non-reporting of essential facts which were

known to the informant in the FIR. The entire materials on record has affirmatively

concluded that Prosecution witness belong to the same family of the deceased and reside

in the same house. It may be of some significance to note that the informant of this case

lives in an adjacent house to that of the deceased. In the FIR, informant has failed to

mention the name of Mohan is a significant person as per the prosecution as he had

allegedly identified the accused Bobby and Kishore, who were the dacoits responsible

for the aforesaid crime. Such non-mentioning of presence of Mohan, who was a material

witness in this case, creates suspicion on the hypothesis portrayed by the prosecution.

For this reason it can be concluded that the informant was aware of the names of dacoits

who had killed the deceased but failed to name them in the FIR. In this context it may

note that the incident is alleged to have taken place at 12:15 AM whereas the FIR came

to be registered at 3.15 a.m., after a lapse of 3 hours. Despite sufficient time for the

informant to gather necessary information, which he did, the names of two accused

respondents have conspicuously been missing, which also formed an additional factor.

Q. Whether non-conduction of TEST Identification Parade could be fatal for proving the

prosecution case?

Ans. Yes, it is a case of the prosecution that the dacoits were armed with a gun, the country

made pistol, lathis and bamboos etc., but none of these weapons were recovered from

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 the accused persons except a piece of dhoti, blouse and nose stud, other articles alleged

to have been stolen by the dacoits were not recovered. It is borne out of the record that

the accused-Bobby and Kishore were not subjected to T.I.P. The only person who was

subjected to T.I.P. was a minor (Pintu Pal). It may be of some relevance to note that

aforesaid Pintu Pal who has identified during the T.I.P. was referred to Juvenile Justice

Board, as he was found to be a Juvenile. In cases like present one T.I.P. acquires

significance and lack of conduction of the same cannot be ignored. It is well settled that

non-conduction of T.I.P. may not itself be fatal to the prosecution case but certainly it

must be weighed in by the Court while considering the facts and circumstances of each

case.As per the well settled law By Hon’ble Supreme Court in case titled as Kanta

Prashad v. Delhi Administration, 1958 CrilJ 698 and Vaikuntam Chandrappa & Ors.

v. State of Andhra Pradesh, AIR 1960 SC 1340].

Q. Whether no recovery of any weapon used in offence is fatal for the prosecution case ?

Ans. Yes, It is already mentioned above that the recovery of the stolen article was limited to

one dhoti, a blouse and a nose stud. These articles were recovered from accused which

have been identified by separate witnesses Although, number of witnesses including the

family members witnessed the aforesaid dacoity, persons could individually identify

three different objects separately which the Court finds suspicious to believe in. In the

light of facts and circumstances it cannot lend any credibility to the alleged allegations

regarding dacoity.

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 PRAYER

It is therefore respectfully prayed that the accused may kindly be

acquitted in above said FIR or pass any other order that court may deem fit so that injustice be

done.

Counsel for the Accused

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 RELEVANT SECTIONS

Section 396 in The Indian Penal Code

396. Dacoity with murder.—If any one of five or more persons, who are conjointly committing
dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.
Section 412 in The Indian Penal Code
412. Dishonestly receiving property stolen in the commission of a dacoity.—Whoever
dishonestly receives or retains any stolen property, the possession whereof he knows or has
reason to believe to have been transferred by the commission of dacoity, or dishonestly receives
from a person, whom he knows or has reason to believe to belong or to have belonged to a gang
of dacoits, property which he knows or has reason to believe to have been stolen, shall be
punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.
Section 379 in The Indian Penal Code
379. Punishment for theft.—Whoever commits theft shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.
Section 302 in The Indian Penal Code
302. Punishment for murder.—Whoever commits murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine.

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