-Table of Contents-

TABLE OF CONTENTS

1.

ABBREVIATIONS... II

2.

INDEX OF AUTHORITIES.......IIIIV
i. Statutes iii ii. Books iii iii. Websites ..iii iv. List of Indian Cases..iv

3. 4. 5.

STATEMENT OF JURISDICTION...............V CHARGES FRAMED AGAINST THE ACCUSED.............................................VI STATEMENT OF FACTS....VIIIX

i. Entities Involved..vii ii. Events leading to the dispute.vii-ix

6.

SUMMARY OF ARGUMENTS........X
MEMORANDUM for the ACCUSED -i-

-Table of Contents7.

ARGUMENTS ADVANCED...........1i. Circumstantial Evidence 1 ii. Plea of Alibi i.e., the Accused was not present at the time of occurrence...2 iii. Drawing another hypothesis according to the facts...................................3-8 iv. Regarding Motive i.e., Who is to be benefitted out of this murder?..........9-12 v. On the Question of Sentencing...............................................................12-14

8.

PRAYER... ...............................15

MEMORANDUM for the ACCUSED -ii-

-Table of Abbreviations-

1B

TABLE OF ABBREVIATIONS

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
12.

& /... AIR..All All ER..All England Anr.. Bom. Cal Cr.P.CCode CR CRL A.. of

And Section Paragraph(s) India Reporter Law Reports .Another ..Bombay ..Calcutta Criminal Procedure Criminal Reports .Criminal Appeal CLT.Crimina CrLJ..Criminal DB... Edn. .. l Law Times 13. 14. 15. Law Journal Division Bench ...edition MEMORANDUM for the ACCUSED -iii-

-Table of Abbreviations16.

Guj Ibid. IPC.Indian LJ.. Mad. No.

Gujarat 17. 18.

19.

..Ibidem Penal Code Law Journal 20. 21. r 22. 23. 24. 25. 26.
27.

Madras ..Numbe Ors.... P & H...Punjab Raj SC...... SCC........Supreme Sd/-...... U/s..... v. Vol. ....... .......

.Others and Haryana .Rajasthan ...Supreme Court Court Cases ..Signed 28. 29. 30. Under Section Versus ..Volume

MEMORANDUM for the ACCUSED -iv-

-Index of Authorities-

INDEX OF AUTHORITIES

[STATUTES] 1. Indian Evidence Act, 1872. 2. Indian Penal Code.

3. Code of Criminal Procedure.

[BOOKS]

1. Sarkar, Law of Evidence, Lexis Nexis Butterworths Wadhwa, Vol.1,

Seventeenth Edn., 2010.

2. Ratanlal & Dhirajlal, The Law of Evidence, Lexis Nexis Butterworths Wadhwa,

Nagpur, Twenty-third Edn., Reprint 2011.

3. Kesava Rao, V., Sir John Woodroffe And Syed Amir Alis Law of Evidence, Lexis

Nexis Butterworths Wadhwa, Nagpur, Vol. 1, Eighteenth Edn. 2008.

4. Subrahmanyam, B.V., Modis Medical Jurisprudence and Toxicology, Lexis

Nexis Butterworths, Twenty-Second Edn., Reprint 2003.

5. Gaur, K.D., Criminal Law :Cases and Materials, LexisNexis Butterworth

Wadhwa Nagpur, 6th edition

6. Vibhuti, K.L., PSA Pillais Criminal Law, Lexis Nexis Butterworths Wadhwa,

Nagpur, Tenth Edn. Reprint 2010.

7. Allen, Christopher, Practical Guide to Evidence, Routledge Cavendish, Fourth

Edn.
8. Subrahmanyam, B.V., Modis Medical Jurisprudence and Toxicology, Lexis

Nexis Butterworths, Twenty-second Edn.

[WEBSITES]
1. www.manupatra.com 2. http://www.lexisnexis.com/hottopics/lnacademic/ 3. http://www.indiankanoon.com/ MEMORANDUM for the ACCUSED -v-

-Index of Authorities-

[LIST OF CASES]

INDIAN CASELAWS:
1. Antu Mahadu Dhavade v. State of Maharashtra (1983) 2 Bom CR

414.................10
2. Babu Raveendran v. Babu Bahuleyan & Anr (2003) 7 SCC 37

13
3. Bachan

Singh v.

v. State v. v.

State of State

of Kerala of

Punjab (1964) Punjab (1983)

AIR 1

1980 Cr

SC LJ CrLJ

898.12
4. Joseph

4939
5. Kuldipsham

1980 8 R

71............................................................9
6. Kundan

Lal

State

of

Rajasthan

Cr

281.9
7. Machhi Singh v. State of Punjab AIR 1983 SC 957

12
8. Panchhi & Ors. V. State of Uttar Pradesh AIR 1998 SC 2726

13
9. Radha

Krishna

Nandaji

v.

State

of

MP

(1926)

CrLJ

694...9
10. Ram Anup Singh v. State of Bihar [2002(6) SCC 686].

13
11. Randhir

Basu

v.

State

of

West

Bengal

AIR

2000

SC

908.14
12. Rangaswami v. Chenchurama 1959 Mad LJ(Cri) 348..

9
13. Sardar

Khan

v.

State

of

Karnataka

(2004)CrLJ

910

(SC)........................................13 MEMORANDUM for the ACCUSED -vi-

-Index of Authorities14. Shivaji

v.

State

AIR

1973

SC

55.9
15. Sone Lal v. State of Uttar Pradesh

AIR 1978 SC 1142...

.12
16. State of Rajasthan v. Umaid Singh (1988) 17 Report (Raj) 271..

.9
17. State v. Ranjit Singh Juvanji Vaghela (1984) 1 Guj LR 3 (Guj)(DB)

..9
18. Padala

Veera of

Reddy v.

v.

State

of Appeal

A.P.

AIR

1990 256-257

SC of

79..1
19. State

U.P.

Satish

(crl.)

20051
20. Dhananjay Chaterjee alias Dhana v. State of West Bengal [1994] 1 SCR

37..1
21. Poosaram

And Singh Ahmad

Ors.

vs v. v.

State

Of

Rajasthan

1984

CriLJ CLT 221

18485
22. Dalel

Jagmohan State (1983)

(1980) CrLJ(NOC)

3242
23. Mukhtar

(Cal)DB..2 24. Om Prakash v. State of Haryana (1984) 1 Crimes 787 P&H2 25. Radha Kishan vs State 481..9
26. Parameswaran

1973

CriLJ OF CriLJ

vs Ambalathil

State

CRL.A.(MD)No.30 Assainar 1956

2004.11
27. In

Re:

244.11

MEMORANDUM for the ACCUSED -vii-

-Statement of Jurisdiction-

STATEMENT OF JURISDICTION

That the Case has been initiated after the Magistrate took cognizance under Section 190 of Cr. P.C. of the Offence punishable under Section 302 of IPC as soon as the Investigating Officer forwarded him the Police Report under Section 173 of the Cr. P.C.

MEMORANDUM for the ACCUSED -viii-

-Charges Framed-

4B

CHARGES FRAMED

CHARGE WITH ONE HEAD S.T. 340/98 Form No. 32 (I), SCHEDULE II, ACT 2, 1973 (Sections 211, 212, 213 of Code of Criminal Procedure)

Name of the Magistrate :

Shri Girjesh Shukla 1st Addl. Sessions Judge, Jamshedpur Hereby charged you

Name of the Accused : As follows-

Manik Mukherjee

That you on or about in the intervening nights of 1st and 2nd days of October 1997 at Mohallah Sankosai Road No. 1 at your own residence P.S. Mango(Olidih Out Post) town Jamshedpur, Dist. Singhbhum East did commit murder by intentionally causing the death og your wife Sawapna Mukherjee, son Joytirmoy Mukherjee and daughter Inderani Mukherjee @ Rinku. And thereby committed an offence under section 302 of the Indian Penal Code, and within my cognizance. And I hereby direct that you be tried by me on the said charge. Charge read over and explained to the accused in Hindi to which he pleads not guilty and claims to be tried. Dated 1st Addl. Sessions Judge Jamshedpur

MEMORANDUM for the ACCUSED -ix-

-Statement of Facts-

5B

STATEMENT OF FACTS

[ENTITIES INVOLVED ]

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Mr. Manik Mukherjee a practising lawyer accused of murdering his wife and two children on the intervening night of 1st and 2nd October, 2011. Mrs. Swapna Mukherjee Wife of Mr. Manik Mukherjee. Ms. Inderani Mukherjee Daughter of Mr. Manik Mukherjee. Mr. Joytirmoy Mukherjee Son of Mr. Manik Mukherjee. Mr. Washi Ahmad The Investigating Officer in the case. Dr. Y. Nath Doctor who conducted autopsy on the person of Swapna Mukherjee, Inderani Mukherjee, and Joytirmoy Mukherjee. Mr. Pramod Kumar The Director of the Forensic Lab, Ranchi. Mrs. Rita Neighbour of Mr. Manik Mukherjee. Dhalki The maid who used to work at the house of Mr. Manik. Mr. Tukla Friend of Maniks Wife. Mr. Hiranmoy Mukerjee and Mr. Ashwani Kumar Panda The Informants who are close relatives of Manik Mukherjee. Mr. Ranjit Sarkar The Senior Advocate under whom Mr. Manik was practicing as a Criminal lawyer. [EVENTS LEADING TO THE DISPUTE]

1.

In the Fard Beyan, Rasu Pado Mukherjee has alleged that on 5.10.97 at about

1030 pm while he was at his house located at Goberghusi, his brothers brother-in-law Samay Kanti Roy and Ashwini Kumar of Sankosai Road no. 1 reached there and informed him that the house of his brother (Manik Mukherjee) was locked from outside from 2.10.97 and they had left their house without giving any information to anybody and a sound of screaming of a child was heard by a boy who was living in the back of the house of the accused Manik Mukherjee.

MEMORANDUM for the ACCUSED -x-

-Statement of Facts2.

The Informant on suspicion reached to the house of Manik Mukherjee along with

his other brother and other persons at 1500 hrs and saw the outer gate and the main door of the house locked.
3.

Informants elder brother Hiron Moy Mukherjee went in the backside of the house

and found that some blood had rushed through the Nali from a room of the house of Manik Mukherjee. 4. He also smelled a foul smell coming from the inside of the house and this

increased their suspicion.

5.

Then Ashiwini Kumar Panda and Hiron Moy Mukherjee went to the Olidih out

post to inform the police regarding the aforesaid fact but the police officers of olidih out post came near the house of his brother (Manik Mukherjee) and broke open the locks of the gate and door of the house of his brother in presence of the crowd of the Mohalla who had gathered there and entered into the house.
6.

In the fard beyan the informant has further alleged that when they went inside the

back room of the house of his brother, the dead bodies of his wife, son and daughter namely Swapna Mukherjee aged about 41 years, Joytirmoy Mukherjee aged about 19 years and Inderani Mukherjee aged about 14 years were found. 7. The heads of all the dead bodies were separated from the trunks of the bodies and

foul smell was coming out from all the dead bodies.
8. 9.

One Dab with blood stains was found in the same room. In another room of the house a Satya diary consisting of 7 pages was found on

the table.
10.

The table was being always used by his brother Manik Mukherjee which was for

his writing and reading.

11.

The aforesaid diary was dated 1.10.97 and the same contained writing regarding

the incident which had happened on 6.12.96 on the occasion of marriage of the daughter of a Senior lawyer Ranjit Sarkar and in the said marriage his brother (informants brother) was invited along with his family members, but his brother was left MEMORANDUM for the ACCUSED -xi-

-Statement of Factsout and his wifes son and daughter were called inside and videograph was taken. The satya diary contained reference that his brothers wife and her friend Tukla disclosed that the marriage was a love marriage and both the bride and the bride groom had old relations and the marriage was mere a formality. The Satya Diary also contained that Ranjit Sarkar was annoyed and angry with his brother because the matter relating to the love marriage of his daughter had spread and close friends of ranjit sarkar namely santanu sarkar, dilip biswas, ardhendu shekhar ghosh and amarjit kaur were trying with the help of ranjit sarkar to put his brother in some trouble and they had spread rumour with the help of raja ram halwani and arjun Prasad of sankosai against his brothers family members.
12.

In the Fard Beyan it has been alleged that the Satya diary disclosed that his brother

gradually became convinced that the future of his family members was in dark. The accused was very much disturbed for the last 4 days and he did the act of committing the murder of his wife, son and daughter in order to save them from pain in the future.
13.

In the Fard Beyan it has been alleged that three other diaries in the writing of his

brother were also found in the room of his brother which revealed that after the marriage of the daughter of ranjit sarkar, his brother was very much afraid and was living in unusual way.
14.

It has been alleged in the Fard Beyan that in the intervening night of 1st and 2nd

October 1997, Manik Mukherjee committed murder of his wife son and daughter and thereafter fled away from the house after locking the same.

MEMORANDUM for the ACCUSED -xii-

-Statement of Facts-

MEMORANDUM for the ACCUSED -xiii-

-Summary of Arguments-

6B

SUMMARY OF ARGUMENTS

It is Humbly submitted before this Honble Court that there is no direct evidence which proves the allegations on Mr. Manik Mukherjee and hence the case rests on circumstantial evidence. For the prosecution to prove a case that rests on circumstantial evidence, certain essentials must be satisfied by the prosecution Inference of guilt must be cogently established. The circumstances should unerringly point towards the guilt of the accused. A Chain should be formed out of the circumstances so complete that there is no escape from the conclusion. The Circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than the guilt. It should also be inconsistent with his innocence. Over here, Manik Mukherjee who has been alleged to have murdered his wife and 2 children had no motive to do the same. Just because he was depressed and going through a mental turmoil doesnt mean he would finish off his family so brutally. There is a missing link in the chain of circumstantial evidence the benefit of which shall go to the accused and he must be acquitted. On that day he had left to Calcutta and had no role in this incident. In addition to that he had no motive to commit this murder.

MEMORANDUM for the ACCUSED -xiv-

-Arguments Advanced-

7B

ARGUMENTS ADVANCED

I. WHETHER THE CIRCUMSTANCES COGENTLY ESTABLISH THE GUILT OF THE ACCUSED? 1.1 It is humbly contended before this Honble Court that the case of Prosecution has no direct evidence against the accused Manik Mukherjee. It rests completely on Circumstantial evidence. It can be best explained by saying that it is not direct evidence from a witness who saw or heard something. It is a fact that can be used to infer another fact, and forms a chain of events which points towards the guilt of the accused. Circumstantial Evidence reflects how the indirect evidence are collected and brought up to form a chain of event; proof of one or more facts from which one can find another fact; proof of a chain of facts and circumstances indicating that the person is either guilty or not guilty. 1.2 In the case of Padala Veera Reddy v. State of A.P.1 the case which was based on circumstantial evidence, the Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy certain tests(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; and it should unerringly point towards the guilt of the accused. (2) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (3) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilty of the accused but should be inconsistent with his innocence.
1

AIR 1990 SC 79;quoted in State of U.P. v. Satish Appeal (crl.) 256-257 of 2005; See also Dhananjay Chaterjee alias Dhana v. State of West Bengal [1994] 1 SCR 37.

MEMORANDUM for the ACCUSED -1-

-Arguments AdvancedSince, the instant case is based on circumstantial evidence, it becomes important for us to reconsider the facts given in the Fardbeyan. The prosecution story seems to rest on points which are in doldrums. It is humbly contended before this Honble Court that there is no chain of events that is established by the Prosecution in the instant case. It is contended before this Honble court that the accused was not there at the time when this incident happened. Alibi is governed by Section 11 of the Indian Evidence Act, 1872, and the burden to prove an alibi is on the accused.2 The accused, however, need not prove his plea beyond reasonable doubt, it would be enough to show preponderance of probability. The accused has to satisfy the court regarding greater likelihood of his case being true compared to that of the prosecution. 3 But, where the evidence shows that it was impossible for the accused to be present at the scene of occurrence at the relevant time, the plea must be accepted. 4The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at other place. The accused has to prove he was not there at the time of occurrence. He can raise reasonable doubt or by a preponderance of evidence and probabilities to show he was not at the place of occurrence during the relevant time. It is humbly submitted before this Honble Court that with the help of Anecdotal Evidence another hypothesis would be created which would logically co-exist and adhere to all the evidences that prosecution has proved against the accused. Moreover, it is contended that there are several missing links contrary to the view of Prosecution that there is a complete chain of events. The analysis of evidence suffers from various infirmities.
1. The whole incident took place in the intervening night of 1st and 2nd October which

cannot be denied and the Post-mortem report also says so as conducted by Dr. Y Nath.
2

Rao, Kesava, Law of Evidence, Eighteenth Edn. Vol.1, p. 1114 para 4; quoted in Dalel Singh v. Jagmohan (1980) CLT 324. 3 Mukhtar Ahmad v. State (1983) CrLJ(NOC) 221 (Cal)DB 4 Om Prakash v. State of Haryana (1984) 1 Crimes 787 P&H

MEMORANDUM for the ACCUSED -2-

-Arguments Advanced2. However, the whole incident took place when Mr. Manik was not there at the

place of occurrence and had left for Calcutta, probably for some work. The neighbours also knew that he had gone to Calcutta, it cannot be said that he after butchering the whole family left for Calcutta. This is evident from the testimony of one of the witnesses i.e., PW 45 who had deposed that she came to the house of Manik after Durga Puja for demanding the bonus and on seeing the same locked, she inquired about the whereabouts of Mr. Manik and got to know that he had gone to Calcutta.
3. Let us start from the Satya Diary which has been found by the I.O. which states

some important points in favour of the accused. The contents of the diary show a story i.e.,
The Satya diary was written by Manik Mukherjee on 1 -10-1997 which disclosed that on 6-12-1996, on the occasion of marriage ceremony of the daughter of his senior lawyer Sri Ranjit Sarkar, Manik Mukherjee was invited with his family members. His wife, son and daughter while attended the marriage were called inside but Manik Mukherjee was left outside. A videograph was taken in the marriage and therein his wife's friend Tukla disclosed that the marriage was a love marriage as both the bride and bridegroom had old relation and that the marriage was only a formality and such conversations were taped in the videography as a result, of which Ranjit Sarkar was very much annoyed with Manik Mukherjee as the love marriage of his daughter had been spread. After that incident, Ranjit Sarkar and his close friends, namely, Santanu Sarkar, Dilip Biswas, Ardhendhu Shekhar Ghosh and Amarjeet Kaur were trying to put Manik Mukherjee in some trouble and they spread rumour with the help of Raja Ram Halwai and Arjun Prasad of Sankosai against Manik Mukherjee and his family members. Moreover, the accused was very much perturbed from before few days of the occurrence because a rumour had spread in the Bar Association that Manik had offered his wofe to Ranjir Sarkar. The accused was feeling very much insecure and had developed a feeling that Ranjit Sarkar and his men were bent upon to destroy him as well as his family members. 6

5 6

See p. 16 1 of the Compendium. See p. 33 1 of the Compendium.

MEMORANDUM for the ACCUSED -3-

-Arguments Advanced4. The above proposition clearly suggests that Mr. Manik was in anguish, highly depressed, annoyed , and in mental agony.
5. The Autopsy Report clearly suggests several points which MUST be taken into

account(i) There were abrasions7 on the bodies of all the three deceased which were

caused due to hard and blunt substance. And they were anti-mortem in nature.
(ii) Not one, but two weapons were used. One for causing injury that were anti-

mortem in nature and other for causing the death of all the three.8
(iii) There was struggle for life on the part of the Wife since she had defence

injuries which according to Dr. Y Nath suggested the struggle for life of the deceased prior to her death.
(iv) No trace of poison was found in the Stomach and the same was found to

be empty.9 However, the Visceras10(abdominal organs) were preserved for the Chemical Examination, the report of which says that Alluminium Phosphide was found in the glass jar that contained the Visceras.11
(v) The time between the death and the last meal was observed to be 4-6

hours.12 This shows they hadnt had ANYTHING. (vi) The death had happened due to separation of head from the rest of the trunk.
6. Abrasions- About the Abrasions, Modis medical jurisprudence says13 Abrasions

are injuries involving loss of superficial epithelial layer of the skin, and are produced by a blow, a fall or a slide on a rough surface or being dragged in a
7 8

See p. 8,9,10 of the Compendium. Id. 9 See p. 9 1 of the Compendium. 10 The internal organs enclosed within the abdominal cavity, including the stomach, liver, intestines, spleen, pancreas, and parts of the urinary and reproductive tracts. 11 See p.11 para 15 of the Compendium. 12 See p. 9 1 of the Compendium. 13 Modis Medical Jurisprudence and Toxicology, LexisNexis Butterworths, p.337.

MEMORANDUM for the ACCUSED -4-

-Arguments Advancedvehicular accident, by scratching or grazing with the finger nails, thorns, by teeth bites, or by friction and pressure of strings or ropes tied round the neck or other parts of the body. Abrasions caused by finger nails indicate a struggle and an assault, and are usually seen on the exposed parts of the body, such as the face, neck, forearms, hands, thighs, etc.; their form and direction may help in identification and show how the injury was caused.
7. The circumstances mentioned above and the Autopsy report suggests that in no

case can this heinous butchering be done by a single person. It is not possible for a single person to fight back three persons and forcibly administer them poison and thereafter murder them. The degree of abrasions on the person of all the three deceased were in ascending order i.e., abrasions were:(i) Very less on the body of Inderani Mukherjee(daughter aged about 14 years), (ii) moderate on the body of Joytirmoy Mukherjee(son aged about 19 years), (iii) high on the body of Sapna Mukherjee(wife aged about 41 years). In Poosaram And Ors. vs State Of Rajasthan14, it was held in a case where the postmortem examination report showed that the victim had received as many as 19 injuries. The victim was a young man of 20 years. The Court held that had there been only one assailant, the victim would not have received so many injuries. The number of injuries suggests that they were caused by more than one miscreant. Moreover, the house of Manik Mukherjee was a small one. It is highly improbable that he would one by one finish all the people by administering poison without other two knowing what he was doing. Even the slightest sound would be definitely heard by other people. 8. Facts about Celphos must be notified:(i) If Celphos table is kept open in a room it will fill the room with smell. It is

this characteristic of Celphos poison emitting pungent smell which renders it improbable to be administered deceitfully and that is why this poison is
14

1984 CriLJ 1848.

MEMORANDUM for the ACCUSED -5-

-Arguments Advancednot generally used in cases of homicidal death. Celphos once administered or consumed spreads rapidly in the body and kidney, liver, spleen, heart and lungs are affected by the poison.
(ii) Modis Medical Jurisprudence & Toxicology states that Aluminium

Phosphide (Celphos) is used as a fumigant to control insects and rodents in food grains and fields. In reported cases of poisoning, symptoms which have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, loss of co-ordination, and death. In postmortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed. According to Modi symptoms and signs of poisoning by aluminium phosphide are similar to poisoning by zinc phosphide.15 The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, tremors and drowsiness followed by respiratory distress at death.
9. If there is no Alluminium Phosphide found in the stomach and the same was

empty, however, Alluminium Phosphide was found in the Visceras which were chemically examined by Mr. Pramod Kumar, it is to be inferred that the poison was not at all orally taken. Strong possibility is that it was intramuscular injection. It appears from the evidence that the poison after going into the blood must have entered viscera of the deceased.
10. A hypothesis or rather how the incident took place can be drawn in the light of

above circumstances and the evidence of Dr. Y Nath coupled with Pramod Kumar(P.W.19) which is as follows(i) The whole incident was a cold-blooded one and pre-planned at each stage.

The place of occurrence becomes important to draw this hypothesis.

15

Modis Medical Jurisprudence and Toxicology, LexisNexis Butterworths, p. 197.

MEMORANDUM for the ACCUSED -6-

-Arguments Advanced(ii) There was not one but 3 persons who were a party to this offence and the incident took place late night, probably after 9 oclock. (iii) Let us assume, that they be X, Y and Z. These 3 men, entered the house the moment Manik left for Calcutta. (iv) It is assumed for a while that these 3 were known (say Relatives) to the wife and children of Manik Mukherjee and came as guests.
(v) Then, the so called guest was welcomed by Sapna Mukherjee. Now,

Whenever a guest comes to anyones house, the first thing in the Indian society which is done is that the person is asked What would you like to have? Tea, Water or Coffee? The wife must have then gone to the Kitchen for preparation of the same.
(vi) While she was going to prepare the same, these guests must have asked her to

call the Children which is the usual trend in the Indian Society.
(vii)

Both the Children came to these 3 Men from their room marked as A.

And it is during the time gap when the wife was preparing something for the guests that the children were injected poison holding their mouths. (viii) While the wife was in Kitchen, two(or more) people must have held the

mouth of the two children and one of the 3 Men, must have administered the poison. While they were holding the mouth of the children, one must have injected the poison in the abdomen. (ix) Now, since the abrasions were very little on the bodies of the Children, it could be inferred that they tried to escape, but ultimately failed.
(x) When the wife returned, she must have been immediately attacked by

this so called guest due to which she sustained defensive injuries.

(xi) It cannot be ascertained that Manik murdered all the deceased in Room

B. The abrasions on the body could also be caused while the bodies were dragged (especially of Inderani Mukherjee since the abrasions were of a small degree). MEMORANDUM for the ACCUSED -7-

-Arguments Advanced(xii)

Now, regarding the question of administering the poison, reliance can

be placed on the post-mortem report and the Chemical examination report of the Visceras. This clearly suggests that these Men had given the injection in the abdomen since Alluminium Phosphide was found in the bottle where the visceras were preserved. And no trace of poison was found in the Stomach. (xiii) After the poison couldnt effect, they were beaten up with a blunt weapon

and the abrasions also prove beyond doubt that they were beaten up and then finally they were butchered. (xiv) A huge flow of blood is deemed to have taken place. It is obvious that the

blood would flow towards the Nali and same needs to be blocked which was ultimately done by them.
(xv)

Thereupon, they tried to show and create a scene that Manik murdered

his family. For this, they very cleverly put 4 glasses with some poison near the dead bodies so that one gets an impression that they were administered poison in glasses in a friendly manner and then murdered.
(xvi)

Moreover, Fingerprints detected on weapons like knives, firearms, and

on the sticks and on other articles at the scene of crime are useful in detecting the culprit.16 In addition, these fingerprints persist for a number of days or months. Under the Identification of Prisoners Act, 1920, the Police are legally authorised to take measurements, finger prints of the accused.
(xvii) Deliberately all the diaries were put on the Table (only a close friend

could be aware of this fact) to make people believe that he had written those diaries and was eager to murder the whole family. As in his statement the accused has denied17 that it was not his writing in the Satya Diary, it could be possible that it was written by one of these men and kept near those two diaries. Also, Manik wouldnt have kept it in the corridor, the place marked as
16 17

Modis Medical Jurisprudence and Toxicology, LexisNexis Butterworths, p.74 See p. 14 of the Compendium.

MEMORANDUM for the ACCUSED -8-

-Arguments AdvancedC. The Testimony of P.W. 14 can be disbelieved because he was the brotherin-law and was disturbed regarding the death of his sister. If a persons sister is dead and police has found an accused who is alleged to have murdered his sister, by hook or by crook he would want him to be behind the bars. Moreover, fingerprints on paper maybe successfully developed by treating them with 5 percent silver nitrate solution and then fixing them with sodium thiosulphate.18
(xviii) Moreover, as the post-mortem report says that not one but two weapons

were used. But, the I.O. found only a Dab used for cutting their heads.
(xix)

This whole commission of the offence took around 3-4 hours, and all X,Y

and Z(or even more) must have made a late night escape i.e., around 2-3am on 2nd October, the time when people are asleep and cannot be awoken. As far as locking of the doors is concerned, these days usually people have 2-3 keys of the same lock. There can be a possibility that one was kept at home and the other one was with Manik Mukherjee. And these men used the key that was at home to lock the house so that the blame comes onto the accused. Moreover, it is common that everyone carries the keys of his home wherever he goes, because you never know when there is a need for the same. Hence, one cannot doubt that Maniks carrying the keys in his bag points towards his guilt. II. Now, the question arises as to is motive and how far is it relevant? Motive becomes relevant under Section 8 of the Indian Evidence Act, 1872. Motive is not a sine qua non19 for bringing the offence of murder home to the accused. However, when the charge of murder is sought to be proved not by direct evidence, but by circumstantial evidence, motive assumes importance. The presence and adequacy of motive cannot be minimized and overlooked when conclusion of the guilt rests on circumstantial evidence.20 Where the prosecution case depends on
18

Modis Medical Jurisprudence and Toxicology, LexisNexis Butterworths, p.77

19

Blacks law Dictionary 712 (5th Ed.,1979) : an indispensable and essential action, condition, or ingredient. 20 State of Rajasthan v. Umaid Singh (1988) 17 Report (Raj) 271

MEMORANDUM for the ACCUSED -9-

-Arguments AdvancedCircumstantial Evidence, motive assumes importance and goes a long way to prove the case of prosecution.21 Question of motive is of great importance in the case of circumstantial evidence, and where there is absence of such motive, the court should carefully examine the absence of motive as a circumstance in favour of the accused. In case where circumstantial evidence is only available, at the outset, one considers the motive and the opportunity to commit the crime. Though proof of motive is not essential, it is a material consideration.22 Motive assumes importance, only where direct and credible evidence is not available and the case rests upon circumstantial evidence.23 In a case of circumstantial evidence, there must be necessary evidence as to strong motive, on the part of the accused persons to commit the crime.24 In cases where the case of the prosecution rests purely on circumstantial evidence , motive plays an important part in order to tilt the scale against the accused. But where there is convincing and credible direct evidence, want of proof of motive is of little consequence.25 Motive is only an important link in a case. This link has a tremendous importance in cases based on circumstantial evidence alone. Outlined Principles regarding Motive-

1. It is not incumbent on the prosecution to prove the motive for the crime. 2. In serious offences like murder, the court always searches for the motive and the motive always plays an important role.
3. Motive is of great importance in cases based on circumstantial evidence, and

where there is absence of such motive, it is always a circumstance in favour of the accused and against the prosecution;26
21 22

Shivaji v. State AIR 1973 SC 55 Rangaswami v. Chenchurama 1959 Mad LJ(Cri) 348; Kuldipsham v. State of Punjab 1980 CrLJ 71; Joseph v. State of Kerala (1964) 1 Cr LJ 493; Radha Krishna Nandaji v. State of MP (1926) 2 CrLJ 694. 23 Radha Kishan vs State 1973 CriLJ 481. 24 State v. Ranjit Singh Juvanji Vaghela (1984) 1 Guj LR 3 (Guj)(DB) 25 Kundan Lal v. State of Rajasthan (1983) 8 R Cr C 281
26

Antu Mahadu Dhavade v. State of Maharashtra (1983) 2 Bom CR 414 (when direct evidence is scant, and the case is based on circumstantial evidence, absence of motive to commit the crime is an important circumstance in favour of the accused)

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-Arguments Advanced4. Where the motive is absent, it is always a circumstance in favour of the accused and against the prosecution; The question arises as to who is going to be benefitted out of this murder or what could be the motive behind commission of this murder? It is humbly contended before this Honble court that the prosecution evidence has failed to establish any strong motive for the accused to commit murder of his family. There was no ulterior motive in pursuance of which Manik would have Had it been that he so much wanted to finish off his life and the life of his family, there would have been quarrels, and even a slight indication of this would have been given by the brother-in-law of Manik Mukherjee. Nobody would kill his family members unless and until there is a serious motive behind the commission of that offence or he is so much depressed that in sudden heat of passion he murdered his wife and children so brutally. Moreover,
1. Had it been the aim of Manik that he wanted to commit suicide (since the story of

committed the murder of his wife, daughter and son.

prosecution says that he had procured Celphos and planned to consume it, but didnt go for it), he would have done that then and there, why would he go all way to Calcutta to commit the suicide in the river Hoogly ?
2. Moreover, he lives in Sankosai Road in Jamshedpur, he could have gone to the

nearby places to commit suicide i.e., Dalma Hills, Swarnekha River(Subarnarekha River). This proves that he went to Calcutta for some work and during that visit he accidently fell into the river Hoogly while coming to the other end and was then hospitalized by some person. 3. There were no frequent quarrels which could establish the fact that he was upset with the life of his family. Whenever, a person is depressed, it is human psychology that he will get annoyed and end up inviting quarrels. But, there is no such circumstance which states that probably he was upset, in pursuance of which he killed his family. Had there been frequent quarrels, the neighbours would have been aware of this fact. But, no witness has testified the same.

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-Arguments AdvancedIn the case of Parameswaran vs State27, the deceased and the accused lived happily. On one fateful day, the deceased wanted to go to her father's house. So, a quarrel took place between the accused and the deceased. The Doctor who conducted postmortem found that the deceased had injuries on the body. The body was found in the house of the accused. The accused returned to home belatedly. The injuries found on the body of the deceased discloses that the death is not natural. The evidence showed that the victim had died before she was hanged. So, the chain of circumstantial evidence on record would show that due to quarrel, the accused murdered his wife by strangulating her. Thereafter, the accused made her to hang to show as if she has committed suicide. However he had no intention to murder his wife, but he knew the consequences when he strangulated the deceased. So, the accused has committed the offence only under Section 304(ii) I.P.C. In another case of In Re: Ambalathil Assainar28, the accused lived with his wife in the house of some landlord on rent which had gone into arrears. According to the landlord, the accused and his wife used to quarrel mainly because the former did not bring home anything for food. A few days before the murder, there was a quarrel between the husband and wife. When inquired, someone complained that the accused did not bring anything for food even on some day and that after quarrelling the accused had beaten her. P.W. 4(landlord) then warned them that as they were in arrears for three months they must quit the house if they created disturbances of that kind. Next day, the body was found with ghastly wounds on her neck which have been proved to have been caused by a small pen knife. Later, the accused was arrested near the railway station and had in his possession a pen knife. He later made a confession, before a Magistrate in which he confessed to killing his wife, under extraordinary circumstances.

4. Moreover, once the accused had given poison to his family was not required to slaughter them. Mr. X, it is a very strong indication could be none other than Mr. Ranjit Sarkar since he had an enmity against Mr. Manik(his junior) due to an incident mentioned in Satya Diary and this could be considered as a motive for finishing
27 28

CRL.A.(MD)No.30 OF 2004 1956 CriLJ 244

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-Arguments Advancedhis whole family with a feeling of vengeance for whatever Maniks wife had done at the marriage ceremony of his daughter. Moreover, a famous case establishes this proposition that enmity between the parties established the motive for the murder. 29 III. Now the point comes in as to whether the present case is a rarest of rare case where the accused can be burdened with capital punishment or not. The Supreme Court held in Bachan Singh v. State of Punjab30, that in exercising its discretion the court should take into consideration the following circumstances as mitigating for awarding the lesser punishment of imprisonment for life:

(i) That the offence was committed under the influence of extreme mental or
emotional disturbance. 31

(ii) The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to the society i.e., he shouldnt have any further intention to cause threat to the society.32

(iii)

That the condition of the accused showed that he was mentally defective

and that the said defect impaired his capacity to appreciate the criminality of his conduct. 33 3.1 In Machhi Singh v. State of Punjab34, after referring to Bachan Singh, has culled out a set of precise guidelines where the question of imposing death sentence arises. They are: (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii)Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime.
29

Sone Lal v. State of Uttar Pradesh AIR 1978 SC 1142. AIR 1980 SC 898 31 Vibhuti, K.L., PSA Pillais Criminal Law, Lexis Nexis Butterworths Wadhwa, Nagpur, Tenth Edn. p. 853 32 Id. 33 Bachan Singh v. State of Punjab, para 204 34 AIR 1983 SC 957
30

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-Arguments Advanced(iii) Life imprisonment is the rule and death sentence is an exception.

The Supreme Court also explained the circumstances that constitute rarest of the rare cases. It observed: In rarest of the rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty. 3.2 Motive for Commission of murder was discussed as an important element to attract a case for death penalty. It shall be attracted when the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money,(b) when it is committed with a cold-blooded plan with a deliberate design to get a property, etc. In Sardar Khan v. State of Karnataka35, the accused was convicted and sentenced by the trial court U/s. 302 and 498A of the IPC for brutally killing and harassing his wife. It sentenced him to rigorous imprisonment for life U/s. 302. On appeal, High Court enhanced his punishment to death sentence. However, the Supreme Court, set aside the death sentence and replaced it by life imprisonment. The Court observed that brutality in taking away the life of the victim is only one of the factors which required to be taken into consideration for coming to the conclusion that the case at hand is one of the rarest of rare cases warranting imposition of death penalty. Brutality in the manner in which the murder was perpetrated cannot be the sole ground for judging whether the case is one of the rarest of the rare cases for imposing death sentence. vengeance, though a brutal one, does not warrant death sentence.36 Supreme Court has In Ram Anup even observed in several cases that a murder committed in the simmering thirst for Singh v. State of Bihar, the Supreme Court while delving into the appropriateness of the death sentence awarded to the accused for killing all the members of a family, set aside the sentence of death as it was unwarranted. It held that the killings, though inhuman,
35 36

(2004) CrLJ 910 (SC). Panchhi & Ors. V. State of Uttar Pradesh AIR 1998 SC 2726; See also Babu Raveendran v. Babu Bahuleyan & Anor (2003) 7 SCC 37.

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-Arguments Advancedcruel and dastardly and heinous and brutal, didnt fall into the domain of rarest of the rare cases.37 Court stated that there was no evidence on record to suggest that the appellants are either a menace to the society or likely to repeat such barbarism in future. It had also no reason to believe that the accused could not be reformed or rehabilitated. In the light of the above facts, it must be noted that:

1. The accused-appellant was a literate gentleman in the society doing criminal practice at
Jamshedpur Bar. There is not an iota of instance proved from the side of the prosecution that the accused- appellant had any criminal history.

2. Moreover it appears while discussing the question of motive that the accused-appellant
had no grudge or vengeance against his wife or children.

3. He just did not want that they should have to face the cruel world alone if something
untoward happens to them as he became the victim of some conspiracy being hatched by his colleague.

4. It appears that the accused-appellant is of weak built mentality and his backbone was not
strong enough to fight the world against odds.

5. He was introvert as is appearing from the wordings of the Satya diary itself. 6. On the incident at the marriage ceremony of Ranjit Sarkar has created a fear psychosis
in his mind and consequently some incident as was revealed from Satya diary has deepened the fear in his mind due to which he ended up murdering his wife and children. The mind of the accused and the subsequent, action of the accused totally infers that he was disturbed minded with a fear psychosis which has completely demurred all his fine and pleasing normal instincts and made him a cruel murderer.

37

See also Randhir Basu v. State of West Bengal AIR 2000 SC 908

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- Prayer -

PRAYER

Wherefore, in the light of facts of the case, arguments advanced and authorities cited, this Court may be graciously pleased to adjudge and declare that:
1. The circumstances do not cogently and conclusively establish that the accused

Manik Mukherjee is not the author of the offence.

2. The Accused is not liable for the charge of murder of his wife and two children

and accordingly acquitt him of the charges. On the question of Sentencing, this Court may be graciously pleased to adjudge and declare that:
1.

The case does not fall within the ambit of rarest of the rare

dictum. And therefore, he should be granted punishment other than death sentence.

And pass any other order in favour of the accused which may deem fit in the ends of justice, equity, and good conscience.
All of which is respectfully submitted.

Date: Place: Jamshedpur Accused)

Sd/(Counsel on behalf of the

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