By-Rishabh Taneja & Anshu Rajput
“As she melts into the ocean of time mysteriously, still her soul craves for justice, with expectation that one day; the light of the divine court will enlighten and say ‘Return, O Children of Man!..’”— Anonymous
‘Every criminal leaves a trace’, one such principle which aptly summarized Edward Locard’s “Theory of Exchange.” In voluminous cases, this principle has reaffirmed itself to the extent that justice has prevailed in each one of them. The idea is firmly subjective; but acts as a compelling and motivating factor simultaneously to signify the direction to proceed in the investigation and the thirst to find evidence to take down the criminal. The Preamble of the Indian Constitution unequivocally points toward the principle of “Social Justice”. Aristotle says “Man is by nature a social animal.” Having stated that, it is a well settled fact that this social animal i.e. every human reacts differently to different situations. This universal fact is the very basis in understanding and establishing the foundation of formation and disruption in the chain of events in Aarushi Talwar Murder Case. This fact will not only clarify the conduct of the accused couple, but also the conduct of the investigating agencies of the system; which shook the foundation of justice and led to such a situation which any human could have barely imagined.
This paper tries to explore the minutest details of circumstantial evidence, in accordance and vision with the Indian Evidence Law and streamline the string of situations which could have been avoided by due diligence and intelligence by non-contamination of the initial crime scene. This case is a perfect example which turned out to be an emotional turmoil for the society and still will be remembered vastly in criminal jurisprudence.
FACTS OF THE CASE- THE PREFATORY (CLUBBED)
- The accused couple in the case was Dr. Rajesh Talwar, specialized in Prosthetic Dentistry and Dr. Nupur Talwar, specialist in Orthodontics who filed an appeal in the Allahabad High Court under section 374 (2) of the Code of Criminal Procedure against the judgment of Ghaziabad Trial Court, which convicted and sentenced them to a rigorous imprisonment for life and a fine of Rs.10,000/- each under section 302/34 of the I.P.C.
- The Ghaziabad Trial Court also held them in conviction under section 201/34 of I.P.C and sentenced them to five years rigorous imprisonment and a fine of Rs. 5000/-. Additionally, Dr. Rajesh Talwar was convicted under section 203 of I.P.C. and sentenced to a simple imprisonment of one year with a fine of Rs.2000/- and all the sentences were to run concurrently.
- The accused were the residents of L-32, Jalvayu Vihar-Noida and were residing there with their beloved daughter Aarushi and a servant named Hemraj, who was employed for daily domestic drudgeries and household chores in the apartment. Hemraj also occupied the room in the same flat.
- On 15.05.2008, the appellants presented their daughter Aarushi, a Sony Digital Camera as an advanced birthday gift and she had a very exciting and a happy state of moments with her family. Post this, Aarushi went to sleep and Dr. Rajesh Talwar had to send an e-mail to the American Dentistry Association; so he asked Dr. Nupur Talwar to switch on the internet router in Aarushi’s bedroom. Dr. Nupur Talwar complied, leaving the key of Aarushi’s bedroom into the lock. The air conditions were switched on which were very noisy.
- On 16.05.2008, the temporary maid Bharti Mandal rang the doorbell of the flat two times but there was no response. She put her hand on the outer grill door but it did not open. She pressed the bell again and Dr. Nupur Talwar opened the door and stated that the key of the door might be with Hemraj, who must have gone to fetch milk and told Bharti Mandal to go to the ground floor so that she could throw the spare key.
- Meanwhile, Dr. Nupur called Hemraj on his mobile. The call was connected and then got disconnected. Bharti Mandal stated that Dr. Nupur Talwar told her that the door was not locked but latched from outside; and this was denied by Dr. Nupur Talwar. Bharti Mandal climbed up the stairs, put her hand on the iron grill door again and it opened.
- She suddenly heard the couple weeping and inquired about the same. Dr. Nupur Talwar embraced her and escorted her to Aarushi’s room; she pulled the bed sheet in which her daughter was covered and found Aarushi’s dead body with her throat jugulated and slit. Within hours of discovery, the flat was crowded with people, police and strangers.
- On the arrival of police, Dr. Rajesh Talwar scribed the report of occurrence with his probable degree of possibility and stated that the servant, Hemraj murdered his daughter Aarushi with sharp weapons and went missing from the previous night and he might have absconded. The investigation was done by S.I. Data Ram Nauneria who recorded the statements and collected the additional evidence.
- On 17.05.2008, the lock put on the terrace of the Talwars was broken and Hemraj’s dead body lying in pool of blood was found covered with the panel of cooler and dragging marks were visible on the terrace. Meanwhile, Talwars were on their way to Haridwar and a call was received by Dr. Rajesh Talwar regarding the discovery of dead body. Further statements were recorded and evidence was collected & the investigation was transferred to Mr. Anil Samania. After few days, Dr, Rajesh Talwar was arrested as the prime suspect in the double murder case.
- The case was then transferred to the C.B.I which recovered 14 articles from the place of occurrence and took possession of bloodstained palm print on the terrace wall. Krishna Thadaria, the clinic employee of Dr. Rajesh Talwar was arrested and three articles including khukri,(a sharp edged knife)having specks of blood and a purple color pillow cover were recovered from his residence.
- Krishna underwent the lie-detector test, polygraph test, narco-analysis and brain-mapping test. The results indicated the presence of Rajkumar and Vijay Mandal in the house of Talwars at that night. A report was filed by C.B.I under Section 169 of C.R.P.C and Dr. Rajesh Talwar was released on custody.
- The investigation was then transferred to Richh Pal Singh and then to AGL Kaul. The closure report submitted by AGL Kaul was rejected by the Special Judicial Magistrate and he himself took cognizance of offence under Section 190(1)(b) of the Criminal Procedure Code and a trail was ordered against Dr. Rajesh and Dr. Nupur Talwar.
- The order of trial was challenged in Allahabad High Court as well as in the Hon’ble Supreme Court of India but was dismissed and the case was finally tried in the Sessions Court, Ghaziabad.
- The Ghaziabad Sessions court held the appellants convicted and awarded sentences accordingly.
- Finally, after an appeal to the Allahabad High Court, the Talwars were acquitted by the Court on the basis of benefit of doubt. The conviction by the Sessions Court was set aside and it was held that the sentence awarded to the accused cannot be sustained.
PROCEDURAL LITANY OF CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is the direct evidence which relates to a series of other facts than facts in issue: but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to satisfactory conclusion. It is always primary and the facts from which the existence of the fact in issue to be inferred must be proved by direct evidence. In Sarad Birdichand Sarda v. State of Maharashtra, the Supreme Court laid down five golden principles of circumstantial evidence. The Allahabad High Court applied the test to the judicial scrutiny in Aarushi’s murder case and made out the following extrapolations and inferences:
- Principle I- The circumstances from which the conclusion of the guilt is to be drawn must be fully established.
- It is based on the grammatical and legal distinction between “must” and “may”. It means that the circumstances should be such which directly point towards the guilt of the accused and all the vague conjectures must be eliminated. The High Court rejected the proposed proposition of the prosecution as to motive which stated the grave and sudden provocation of Dr. Rajesh Talwar on seeing Aarushi and Hemraj in a compromising position.
- In support of this, the Court stated that the report prepared by Dr. M.S. Dahiya was based on the information supplied to him by the C.B.I. officer which stated that Hemraj’s blood was found on Aarushi’s pillow cover was invalid as the prior report prepared by Central Forensic Science Laboratory (CFSL) indicated the sole presence of Aarushi’s blood on pillow cover.
- The Court rejected Dr. Sunil Kumar Dohra’s report regarding whitish discharge in the private parts of Aarushi with vaginal cavity wide open as the same was not provided in the first three statements of the doctor & later he termed them as “subjective” findings. The Court stated that the report had no credible basis as to the fact that Aarushi was sexually assaulted as the column in the report “any other additional information” was left blank in the initial report.
- In case of vagina of a 13-14 years old deceased girl, neither orifice would by found open nor vaginal canal will be visible as orifice is found to be open in only those women who have given birth to several children; this is called “Prolapse”.
The Allahabad High Court took all the above mentioned circumstances under the vicinity of this principle and found that the chain of events forming the circumstances was not fully established and there were loopholes in the same; which implicated that the chain of circumstances put forth by the prosecution was broken and embryonic.
- Principle II- The facts so established should be consistent only with the hypothesis of the guilt of the accused.
- This principle lays down that once the facts are established; they must be consistent with the hypothesis of the guilt of the accused. The facts so established should not be explainable on any other hypothesis except the accused is guilty.
- In Aji Kumar v. State of Kerala, the Hon’ble Supreme Court observed that “Suspicion, however grave, cannot take the place of proof of conviction.” This fact can be placed in Aarushi’s case to the point of double edged suspicion both on the accused as well as of botched up method of investigative agencies.
- The two key witnesses of the prosecution were the driver and maid of the accused i.e. Umesh Sharma and Bharti Mandal. Umesh Sharma stated that no other person was present in the house, besides the accused couple and both the victims. Here last seen theory firmly comes into the picture.
- In Ashok v. State of Maharshtra, it was held that last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between accused and deceased, enmity between them, previous history of hostility, recovery of weapon from the accused may lead to presumption of guilt.
- However, no such evidence or chains of circumstances were there on record which stated that the accused was having an aversion to their victim daughter. However, there was one factor which could have been in the favor of prosecution i.e. Non-explanation of death of the deceased.
- The question arises is that if the hypothesis is pointing towards the guilt of the accused; but the explanation appended to that the hypothesis keeps on changing then whether the verisimilitude of the truth can be affected or not. A cursory glance at the judgment states that the prosecution was not able to prove that which the apt murder weapon was ranging from khukri, medical dentistry instrument or the golf stick.
- Hence, the explanation appended to the hypothesis actually went in the favor of the accused as the prosecution was not able to establish the apt murder weapon as this raised serious concerns on the credibility of the argument of the prosecution regarding murder weapon.
- Additionally, the reports of Dr. Sunil Kumar Dohre had falsely deposed that vaginal cavity was open and vaginal canal was visible and that opening of cavity was prominent in as much as neither this fact was mentioned neither in the post-mortem examination report nor in his first four statements given to the investigating officer.
Hence, all these circumstances proposed by the prosecution were not able to establish the credibility of hypothesis as the explanation appending to those hypothesis kept on changing. Hence, it could not establish the presumption of guilt against the accused.
- Principle III -The circumstances must be of conclusive nature and tendency.
- The Ghaziabad Trial Court placed its reliance on the fact that since no other person was present in the house; as per the testimony of Umesh Sharma, the driver, and there was no proof of any outsider entry into the flat, the accused couple was convicted of an offence; as the Trial Court found it a conclusive circumstance leading to a reasonable inference.
- But, the Allahabad High Court, took into account the additional evidence. In paragraph 196 of the judgment, the Court stated that the call records of Hemraj depicted the location of Hemraj’s phone in Punjab. This was a very strong piece of evidence that on the intervening night of 15/5/2008 and 16/5/2008; some outsider was present in the apartment who took the possession of Hemraj’s phone. This incident turned out to be an obstruction in establishing the conclusiveness of the circumstances.
- Principle IV- Circumstances should exclude every possible hypothesis except the one to be proved.
- As far as Aarushi Talwar Murder Case is concerned, there were overlapping arguments made by the prosecution as there was one hypothesis but multiple sub-hypothesis. The explanations appended to the arguments by the prosecution were too ambiguous.
- Firstly, no inference could be drawn as to the apt murder weapon used. Secondly, the medical reports completely eradicated the possibility of sexual intercourse or assault on the deceased victim by Hemraj.
- The Allahabad High Court took into consideration the Sound Simulation test and Crime Scene Reconstruction Report and stated that both the reports were in alignment with the defence of the accused as the C.B.I failed to present the report in the trial court. These report clearly established that even if the accused were sleep with their air conditioners on, during the night; the entry of the outsiders could not have been heard by the accused couple because of the rough and loud noise being emanated by the air conditioners.
- Following this, the chain of circumstances establishing the guilt of the accused was broken to a massive extent and a violent blow was given to the prosecution’s version of the story.
- Principle V- There must be a chain of events so complete as not to have any reasonable ground for the conclusion consistent with the innocence of accused .
- As far as this principle is concerned, it implicates the fact that the chain of circumstances must be in alignment with the chain of evidence and inferences must point towards the guilt of the accused.
- In Aarushi’s murder case, an initial report (labeled as “Ext. Ka 51), was made which successfully established the presence of Hemraj’s DNA on a purple color pillow cover recovered from Krishna’s residence. But a further forwarding letter suggested that there was a typographical error and the pillow recovered from Hemraj’s room was labeled as one which was recovered from Krishna’s room. The High Court stated it was a “clinching piece of evidence” that indicated that Krishna was present in the flat when Hemraj was murdered.
Hence, it can be firmly extrapolated by that if the chain of circumstances proposed by both the prosecution and the defence was compared with the chain of evidences, there are multiple lacunas in regard to inconsistencies between the two. If the evidence is weighed on an abstract calculus, it implicates the situation where some outsider was present in the flat on the intervening night. Hence, the view adopted by Allahabad High Court appears to be as per the objective assessment of the situation in consideration of consistent chain of evidence. Hence, the Panchsheel rule favored the accused couple firmly.
JUDGMENT OF THE COURT- WHETHER QUESTIONABLE OR CONCLUSIVE?
Dr. Rajesh Talwar and Dr. Nupur Talwar were acquitted by the Allahabad High Court on the basis of “benefit of doubt” and the Court additionally stated that neither the circumstances nor the evidence was enough to hold the dentist couple guilty. The circumstances were inadequate and their life sentence was quashed and C.B.I had failed miserably to supplement the lacunas in the evidence.
The High Court of Allahabad took recourse to Section 106 of the Indian Evidence Act and observed that it lays down only this much that if a fact is in the “special knowledge of person” and the other side could not have due knowledge of it despite exercising due diligence, then the burden of proving the fact lies on such person who possess such special knowledge. In the instant case, the prosecution was unable to prove the testimony of its key witness, Bharti Mandal, as her statements kept on changing timely. The Court stated that the prosecution failed to prove the compliances of Section 106 for proving that both the deceased victims were seen in a compromising position with each other.
The Court also criticized the “botched-up” investigation of the agencies and sporadic time lapses. The conclusive remarks of the Allahabad High Court were that the “chain of circumstances stood snapped the moment and prosecution failed to prove by cogent and reliable evidence that appellant’s flat was locked from inside.”
CONCLUSIVE PRECEDENTS CITED (IN DICTA)
Apart from Sarad Birdichand Sarda v. State of Maharshtra, the Allahabad High Court cited two more precedents in support of their view which are as follows:
In Kali Ram v. State of Himachal Pradesh, the Apex Court put forth the view that another golden thread which runs through the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and another to his innocence, “the view which is favourable to the accused should be adopted”.
In M.G. Agarwal v. State of Maharashtra, the Apex Court held that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt.
In view of Article 141 o the Constitution of India and as per the circumstances objectively proposed in this case, the two precedents cited by the bench stood in favor of the accused couple and lead to the inference of their innocence and their entitlement to the benefit of doubt.
All in all, it can be firmly extrapolated that Aarushi Talwar Murder Case went on being an epitome expression of what we today call as “The Perfect Murder Mystery.” Notwithstanding the fact of presence of voluminous evidences and exhibits, the abstract calculus of evidence was very intricate to be drawn since the chain of circumstances must be in alignment with the chain of evidences. However, while reading the both Ghaziabad Trial Court judgment and the Allahabad High Court Judgment, the reader feels that the latter judgment is more precise and accurate as precedents cited by the bench were very much in consonance with the circumstances proposed in the present case.
Recollecting the abstract at the beginning of this paper, it is mentioned that every human reacts differently to different situations. In this case, the reasoning which was given in the Ghaziabad Trial Court was that “the conduct of the accused couple was not palatable as it is a natural act that if parents see the dead body of their daughter, they will not hug her”. This reasoning appears absurd and out of line.
Since reactions of humans are different, they conduct themselves differently. This could also be questioned regarding the conduct of investigative agencies as many Investigating Officers were changed and each officer conducted the investigation in his own manner; which lead to “botched-up” circumstances. The circumstances were so botched up that even today the veracity of murder weapon is not corroborated and the murderer remains absconding and Aarushi’s soul still thrives for justice.
 Batuk Lal, The Law of Evidence, Central Law Agency, (22nd Edition), Page 64.
 AIR 1973 SC 2622.
 V.G. Padubidri, Shaw’s Textbook of Gynaecology, (16th Edition), Page 9.
 Batuk Lal, The Law Of Evidence, Central Law Agency, (22nd Edition), Page 70
 AIR 2017 SC 695
 2015 Cri LJ 2036, Page 2039.
 Aniruddha Ghoshal, Aarushi Talwar Murder Case: Key Evidences That Caught Attention, available at: https://indianexpress.com/article/india/aarushi-talwar-murder-case-rajesh-nupur-talwar-hemraj-noida-cbi-key-evidences-that-night-at-flat-l-32-4900539/ , last seen on 03/09/2020.
 Amita Verma, Aarushi Murder Case: Benefit of Doubt to Talwars Help,available at: https://www.deccanchronicle.com/nation/current-affairs/131017/aarushi-murder-case-benefit-of-doubt-to-talwars-help.html , last seen on 03/09/2020.
 AIR 1973 SC 2622.
 AIR 1973 SC 2773.
 AIR 1963 SC 200.