TEAM CODE: 031

TEAM CODE: 031

IN THE HIGH COURT OF JUDICATURE AT JALLAHABAD

(FILED UNDER SECTION 437 OF CODE OF CRIMINAL PROCEDURE)

IN THE MATTER OF

C.B.I., NAAVI DALLI

(Respondents)

Vs.

Dr. Mrs. SARAH DHANKAL & Dr. MICHEAL DHANKAL

(Appellants)

Memorial submitted to

Memorial Filed on behalf of Appellants

Counsel appearing on Behalf of Appellants

2|Page Memorial On Behalf Of Appellants

TABLE OF CONTENTS

TABLE OF CONTENTS....................................................................................... 2

LIST OFABBREVIATIONS................................................................................. 3

LIST OF CASES…………………………………………………………….4

STATEMENT OF JURISDICTION......................................................................... 5

STATEMENT OF FACTS..................................................................................... 6

ISSUES PRESENTED ....................................................................................... 8

SUMMARY OFARGUMENTS............................................................................ 9

ARGUMENTS ADVANCED……………………………………………………………………11

PRAYER…………………………………………………………………………………………….17
3|Page Memorial On Behalf Of Appellants

LIST OF ABBREVIATIONS

AIR- All India Revenue

HON’BLE- Honorable

ORS- Others

SC- Supreme Court

SCC- Supreme Court Cases

&- And

UIO- Union Of India

V.S- Versus
4|Page Memorial On Behalf Of Appellants

LIST OF CASES

HEMA v. STATE, THR. INSPECTOR OF POLICE, MADRAS, 2013 3 S.C.R. 1.

Babubhai vs. State of Gujarat and Others, 2010 (12) SCC 254.

State of UP vs. Ravindra Prakash Mittal, AIR 1992 SC 2045

RP Kapur vs. State of Punjab AIR 1960 SC 866.

Ram Bihari Yadav vs State Of Bihar 1998 (4) SCC 517.

Hanumat vs State of MP 1 [1953] SCR 1091

.
Bodhraj @Bodha And Ors. vs. State of Jammu & Kashmir (2002) 8 SCC 45

Bhagat Ram v.State of Punjab1,

C. Chenga Reddy v. State of A.P

Trimukh Maroti Kirkan vs. State of Maharashtra

1
AIR 1954 SC 621.
5|Page Memorial On Behalf Of Appellants

STATEMENT OF JURISDICTION

It is humbly submitted that the applicant has presented this Criminal Appeal before this Hon’ble
Court invoking its jurisdiction under Section 374(2) of the Code of Criminal Procedure along with
a Bail Application under Section 389(1) of Code of Criminal Procedure.
6|Page Memorial On Behalf Of Appellants

STATEMENT OF FACTS

The present Criminal Appeal is being preferred against the judgement and order dated xx.xx.xxxx
passed by The Special Judge, Additional Session Court, Badlapur whereby the appellants has been
sentenced to rigorous imprisonment for life under section 302 read with section 34 IPC with a fine of
Rs.10,000/- each and in default of payment of fine to undergo six months simple imprisonment and to five
years rigorous imprisonment under section 201 read with section 34 I.P.C. with a fine of Rs.5,000/-each
and in default of payment of fine to undergo simple imprisonment of three months. Dr. Micheal Dhankal
was also sentenced to one year simple imprisonment under section 203 I.P.C. with a fine of Rs.2,000/- and
in default of payment of fine to undergo simple imprisonment of one month.

To know the facts clearly, it is pertinent here the discuss the whole fact of the case. On 15.05.2008
at about 9:30 P.M. only Dr. Micheal Dhankal, Dr.Sarah Dhankal, Ms. Aayushi (daughter of the
appellants) and Debraj (domestic helper of appellants) were last seen in the house by Himesh
Sharma (the driver of Dr. Micheal Dhankal) and on the morning of 16.05.2008 Aayushi was found
dead in her bedroom, which was adjacent to the bedroom of the accused persons and between these
bedrooms there was a wooden partition wall.

When the maid Ms. Sarti Mangal went in Aayushi‘s room on 16.05.2008 she discovered that
Aayushi‘s dead body was lying on the bed covered with a white bed sheet and her throat was slit.
She immediately informed the inmates and went to another house to do her job. After that Micheal
and Sarah Dhankal reached there and called people to come down to their apartment informing
them what had happened. By the time police also arrived and investigation was taken up by S.I
Bata Ram Hazaaria, who during the course of investigation proceeded to the scene of crime,
inspected the bedroom of the deceased and recorded the statements of Micheal and Sarah Dhankal.
7|Page Memorial On Behalf Of Appellants

He also seized the blood stained pillow, bed sheet and pieces of mattress from the room of Aayushi
and memo was prepared. Mr. Micheal Dhankal filed a report against the domestic help Debraj on
not finding him in the house suspecting him to have committed Aayushi‘s murder. A site-plan was
prepared and statements of Ms. Sarti Mangal and other people were taken. Mr. Hazaaria tried to
go to the roof of the house but the door was locked and had blood stains. He asked Mr. Micheal
Dhankal to give him the keys of the lock of the terrace but he said that he wasn‘t having the keys
and asked him not waste his time; else Debraj will manage to flee away. On 17.05.2008, the case
took a new turn when the Investigator Bata Ram Hazaaria found the dead body of Debraj on the
terrace after he broke the lock of the door. The body was lying in the pool of blood and was covered
with panel of cooler and dragging marks were visible. Police alleged that Mr. Dhankal had killed
his daughter and his servant after finding them in compromising position due to sudden and grave
provocation. On 25.05.2008 Mr. Micheal Dhankal was arrested by local police.
8|Page Memorial On Behalf Of Appellants

ISSEUS PRESENTED

1. Whether there is sufficient evidence on record to convict the accused for double murder?

2. Whether the conviction can solely be based on circumstantial evidence?

3. Whether appellant/accused have made out a prima facie case for grant of bail?

4. Whether evidence adduced by prosecution is admissible under the Evidence Act, 1872?
9|Page Memorial On Behalf Of Appellants

SUMMARY OF ARGUMENTS

1. WHETHER THERE IS SUFFICIENT EVIDENCE ON RECORD TO CONVICT THE

ACCUSED FOR DOUBLE MURDER?
It is humbly submitted that the prosecution has made up the whole story to cover their
faults as the evidences put on record are not connected to each other and proper mind has
not been applied while collecting all the evidences which resulted in broken chain of
evidences and creates doubt in favour of the appellants. Thus the evidences put on record
are not enough to convict the appellants for double murder.

2. WHETHER THE CONVICTION CAN SOLELY BE BASED ON CIRCUMSTANTIAL

EVIDENCE AND WHETHER APPELLANTS HAVE MADE OUT A PRIMA FACIE
CASE FOR GRANT OF BAIL?
It is humbly submitted that it is a settled rule of law that circumstantial evidences are
enough to establish conviction if following essentials are fulfilled2:

 The circumstance from which the guilt is established should be proven;

 That each one the facts should be according to the hypothesis of the guilt of the
accused;
 That the circumstances should be conclusive in nature and tendency;
 That the circumstances ought to, to an ethical certainty, truly exclude each hypothesis
except the one projected to be evidenced.

2
State of UP vs. Ravindra Prakash Mittal, AIR 1992 SC 2045
10 | P a g e Memorial On Behalf Of Appellants

 The evidence should prove the guilt of the culprit beyond a reasonable doubt.

These elements are the backbone of a conviction based on the circumstantial evidenc and
if any of the ingredient is not fulfilled the person is liable to get bail. In my further
discussion on this point I have submitted arguments against the prosecution that they have
not been able to prove the guilt of the appellants beyond the reasonable doubt, hence, the
bail application should be accepted.

3. WHETHER THE EVIDENCE ADDUCED BY THE PROSECUTION IS

ADDIMISSIBLE UNDER THE EVIDENCE ACT 1872?
It is humbly submitted that with regard to this question my answer is in affirmative but
the prosecution has fabricated all the facts to support their story and practiced gross
negligence while investigating the case.
11 | P a g e Memorial On Behalf Of Appellants

ARGUMENTS ADVANCED

1) WHETHER THERE IS SUFFICIENT EVIDENCE ON RECORD TO CONVICT THE

ACCUSED FOR DOUBLE MURDER?

It is humbly stated that the appellants should not suffer from the act of defective investigation
on the part of the prosecution as it is against their fundamental rights guaranteed by the
Constitution of India.

 FUNDAMENTAL RIGHT: It is settled law that not only fair trial, but fair
investigation is also part of constitutional rights guaranteed under Articles 20 and 21
of the Constitution of India. Accordingly, investigation must be fair, transparent and
judicious and it is the immediate requirement of rule of law3.
 DEFECTIVE INVESTIGATION: the appellants are suffering the results of the
carelessness of investigating officer which is totally against the law. The Investigating
Officer cannot be permitted to conduct an investigation in a tainted and biased
manner. It was further observed that where non-interference of the Court would
ultimately result in failure of justice, the Court must interfere4.

The police officials acted negligently during the investigation and collecting evidences
as they did not called any forensic experts team at the spot. Moreover they did not took
the sample of blood from the lock of the door of the roof, the fingerprints or other clues

3
HEMA v. STATE, THR. INSPECTOR OF POLICE, MADRAS, 2013 3 S.C.R. 1.
4
Babubhai vs. State of Gujarat and Others, 2010 (12) SCC 254.
12 | P a g e Memorial On Behalf Of Appellants

which might have been present on the cooler panel placed over the body of Debraj and
the dragging marks visible near the body, blood stains or finger prints present on the
bottle of Scotch-Whisky.

The term `investigation' has been defined in Section 2(h) of the Code to include all the
proceedings under the Code for collection of evidence conducted by a police officer or
by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
In the case of R.P. Kapur Vs. State of Punjab5, it was held by the apex court that the
Investigating Officer "is not to bolster up a prosecution case with such evidence as may
enable the court to record conviction but to bring out the real unvarnished truth.” The
entire emphasis on a fair investigation has to be to bring out the truth of the case before
the court of competent jurisdiction. Investigating agencies are guardians of the liberty
of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that
innocent persons are not charged on an irresponsible and false implication.

Defective or improper investigation may result from the acts of omission and/or
commission, deliberate or otherwise, of the Investigating Officer or other material
witnesses, who are obliged to perform certain duties in discharge of their functions.
Defective investigation per se cannot be a ground to declare the innocence of an
accused.
 BURDEN OF PROOF: According to Section 101 of the Indian Evidence Act 1872,
the burden of proof lies on the person who asserts the fact, therefore, here the whole
burden lies on the prosecution to prove the case against the appellants in which they
miserably failed. Suspicion howsoever grave cannot take place of proof. Prosecution
case to succeed has to be in the category of ”must be” and not “may be” a distance to
be covered by way of clear, cogent and unimpeachable evidence to rule out aby
possibility of wrongful conviction resulting in miscarriage of justice. Prosecution has
to prove the case against the accused in the manner stated by it and that any act or
omission on the part of the prosecution giving rise to any reasonable doubt would go
in favour of the accused. The story of the prosecution will have to be examined de hors

5
AIR 1960 SC 866.
13 | P a g e Memorial On Behalf Of Appellants

such omissions and contaminated conduct of the officials otherwise the mischief which
was deliberately done would be perpetuated and justice would be denied to the
complainant party and this would obviously shake the confidence of the people not
merely in the law enforcing agency but also in the administration of justice6.

It is submitted that the conduct of the investigating officers seems contaminated thereby
giving rise to reasonable doubt regarding the whole story of prosecution.
2) WHETHER THE CONVICTION CAN SOLELY BE BASED ON CIRCUMSTANTIAL
EVIDENCE AND WHETHER APPELLANTS HAVE MADE OUT A PRIMA FACIE
CASE FOR GRANT OF BAIL?
Before a case against an accused vesting on circumstantial evidence can be said to be fully
established the following conditions must be fulfilled as laid down in Hanumat v. State of
M.P7:
o The circumstances from which the conclusion of guilt is to be drawn should be fully
established;
o The facts so established should be consistent with the hypothesis of guilt and the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
o The circumstances should be of a conclusive nature and tendency;
o They should exclude every possible hypothesis except the one to be proved; and
o There must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must have been done by the accused.

These five golden principles constitute the panch-sheel of the proof of a case based on
circumstantial evidence and in the absence of a corpus deliciti.
The principle of circumstantial evidence has been reiterated by the Apex Court in a plethora
of cases. In Bodhraj @Bodha And Ors. vs. State of Jammu & Kashmir8, wherein this
court quoted number of judgments and held as under:-

6
Ram Bihari Yadav vs State Of Bihar 1998 (4) SCC 517.
7
[1953] SCR 1091.
8
(2002) 8 SCC 45.
14 | P a g e Memorial On Behalf Of Appellants

“It has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the innocence of
the accused or the guilt of any other person.”
In Bhagat Ram v.State of Punjab9, it was laid down that where the case depends upon the
conclusion drawn from circumstances the cumulative effect of the circumstances must be
such as to negative the innocence of the accused and bring home the offences beyond and
reasonable doubt. We may also make a reference to a decision of the Apex
Court in C. Chenga Reddy v. State of A.P.10, wherein it has been observed thus:
“In a case based on circumstantial evidence, the settled law is that the circumstances from
which the conclusion of guilt is drawn should be fully proved and such circumstances must
be conclusive in nature. Moreover, all the circumstances should be complete and there
should be no gap left in the chain of evidence. Further, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and totally inconsistent with
his innocence.”
 LAST SEEN THEORY: The fact that deceased persons were last seen together alive
with the appellants has no relevance as this is very general and obvious because all four
always lived/worked together. In Trimukh Maroti Kirkan vs. State of Maharashtra11,
this court held as under:
“In the case in hand there is no eyewitness of the occurrence and the case of the
prosecution rests on circumstantial evidence. The normal principle in a case based on
circumstantial evidence is that the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established; that those circumstances
should be of a definite tendency unerringly pointing towards the guilt of the accused;
that 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 they should be incapable of explanation on any

9
AIR 1954 SC 621.
10
(1996) 10 SCC 193, (SCC pp. 206-07,para 21)

11
(2006) 10 SCC 681.
15 | P a g e Memorial On Behalf Of Appellants

hypothesis other than that of the guilt of the accused and inconsistent with their
innocence.”

That on the very fateful night both the appellants slept through the murder because of
the noise produced by the two air conditioners on the hot night. It was established at
the trial that the air conditioners produced enough noise so as it was impossible that the
Dhankals could have heard the sounds outside the room.
That it is true that the appellant went to sleep with the key after locking the door of
Ayushi’s bedroom from outside but as Debraj was domestic helper to the appellants he
would be knowing that the appellants could not here anything and also he must be
having access to all rooms and the main gate to the building. Therefore, there are
chances that he might have let someone in the house.

That the first person who saw the dead body of Ayushi was the maid Ms. Sarti Mangal
and then she informed the appellants. Before this the appellants were unawre of the
murder.

 ACTIVE INTERNET: That about the fact that the internet remained active in the
night of the gory incident, it can be said that there are chances that the it was Ayushi
herself who was using the internet before the incident.

 NO RECOVERY OF ALLEGED MURDER WEAPON: That the mode of murder

of both the deceased is very suspicious as the prosecution says that murder is committed
using Golf-Club and Scalpel respectively, which doesn’t sound reasonable. If the
appellants ever wanted to kill her beloved daughter a single cut by scalpel or several
blows of golf-club were enough to kill her. The use of two different weapons is nothing
but the result of exaggeration of unreasonable and unexplained probabilities.

 NO MARKS OF RESISTANCE ON THE BODY OF

DECEASED/APPELLANTS: Neither there is any report showing that Ayushi and
Debraj resisted their murder nor any medical examination which proves the same. It is
16 | P a g e Memorial On Behalf Of Appellants

impossible that one person want to kill another person and that other person did not
fight for his/her life.

 UNTESTED BLOOD SAMPLES: That there is nothing on record that shows that
blood stains present on the lock of the door, on the Whisky bottle were of the appellants.

 That the police officials did not searched for the murder weapon in the house or in the
vicinity of the house. After some time the alleged golf-club was produced by the
appellant when they themselves searched the house. Being highly educated persons if
they wanted to dress up the crime scene, they would have not left the Whisky bottle
with bloodstains in the living room and they would have not produced the golf-club to
the investigating agency.

 All these facts show that there is lack of evidence due to defective investigation and
the chain of circumstantial evidence is severely broken which creates doubt and
resulting in failure pf prosecution to prove the case against the appellant beyond all
reasonable doubt.

3) WHETHER THE EVIDENCE ADDUCED BY THE PROSECUTION IS

ADDIMISSIBLE UNDER THE EVIDENCE ACT 1872?
It is humbly submitted that with regard to this question my answer is in affirmative but the
prosecution has fabricated all the facts to support their story and practiced gross negligence
while investigating the case. All the evidences produced by the prosecution are uncomplete
and creates doubt with regard to their genuineness.
17 | P a g e Memorial On Behalf Of Appellants

PRAYER
It is most respectfully prayed that this Hon’ble court may graciously be pleased to allow
the aforesaid criminal appeal and set aside the impugned judgement and order dated
xx.xx.xxxx passed by The Special Judge, Additional Session Court, Badlapur whereby
the appellants has been sentenced to rigorous imprisonment for life under section 302 read
with section 34 IPC with a fine of Rs.10,000/- each and in default of payment of fine to undergo
six months simple imprisonment and to five years rigorous imprisonment under section 201
read with section 34 I.P.C. with a fine of Rs.5,000/-each and in default of payment of fine to
undergo simple imprisonment of three months. Dr. Micheal Dhankal was also sentenced to one
year simple imprisonment under section 203 I.P.C. with a fine of Rs.2,000/- and in default of
payment of fine to undergo simple imprisonment of one month.

It is further prayed that this Hon’ble Court may be pleased to grant bail to the appellants during
the pendency of the instant criminal appeal before this Court.

And/or pass such other and further order which this Hon’ble court may deem fit and proper in
the facts and circumstances of the case.

All of which is most humbly prayed

Counsel for the Appellants.