Absolute miscarriage of justice. Both Mrs and Mr Talwar deserves to be out of jail immediately.
It will be amply demonstrated below how the court order is bad in law and perverse, I fail to understand how this order can sustain the judicial conscience. The Hon Apex Court must take suo moto cognizance and release them without further delay.
The Order
The State of U.P. Through the C.B.I.
Vs. Rajesh Talwar & Another
R.C. No.1(S)/2008/SCR-III/CBI/NEW DELHI
Sessions Trial No. 477 of 2012
The Order Violates S.315 (b) CrPC, and hence must be set aside.
Let us dissect the same, word by word...
Para #1 Page # 1
The cynosure of judicial determination is the fluctuating fortunes of the dentist couple Dr. Rajesh
Talwar and Dr. Nupur Talwar...
This observation by the Ld and Hon Session Judge is bad and out of judicial spirit. The judge is not expected to discuss or decide about the criminality of the accused at every stage, accused are innocent till proven guilty and there is no question of fluctuating fortunes of accused in the eyes of law. The accused fate is decided at the end only after cogent and lawful analysis of the evidence on record. This amounts to pre- judging the accused culpability or lack of it at various stages by the judge, which cannot be sustained in the eyes of law.
Page # 11
On 11.07.2008 C.B.I. filed report under section 169 Cr.P.C. in the court of Learned Special Judicial
Magistrate (C.B.I.), Ghaziabad and accordingly Dr. Rajesh Talwar was released from custody. Since Mr. Vijay Kumar was bit off, the investigation was transferred on 25.08.2008 to Inspector Mr. M.S. Phartyal,
On 11.07.2008 C.B.I. filed report under section 169 Cr.P.C. in the court of Learned Special Judicial
Magistrate (C.B.I.), Ghaziabad and accordingly Dr. Rajesh Talwar was released from custody. Since Mr. Vijay Kumar was bit off, the investigation was transferred on 25.08.2008 to Inspector Mr. M.S. Phartyal,
Mere observation by the Hon Session Judge that CBI main investigator Mr Vijay Kumar was bit off and he was taken off from the case is bad. The Judge was duty bound to inquire with CBI that how a man whose prompt investigation got the arrest of servants Krishna and others, whose investigation got the bail for Rajesh Talwar, whose investigation got the forensic and other test promptly, is bit off ? This transfer should have created a doubt in the mind of the Hon Court and the Hon court should have taken it more seriously to establish the truth. It is quite likely that he was on track and thats why he was shunted out.
Page # 24
After closure of the prosecution evidence the accused were examined under section 313 Cr.P.C....
Page # 24
After closure of the prosecution evidence the accused were examined under section 313 Cr.P.C....
Nothing incriminating in the S.313 CrPC statements and written submission by the accused. They are truthful and natural submissions. Even otherwise it is well established by the Hon Apex Court of this country that incriminating statements of the accused under S.313 CrPC cannot be used against him if the same are not corroborated by the prosecution.
This aspect shall be taken up later too, when we analyse the evidence with respect to their statement under S.313 CrPC.
Page # 47
...I have cogitated over the rival submissions made on either side. Admittedly, the case in hand is
not based on percipient evidence and rather hinges on circumstantial evidence...
So the Hon Judge based his conviction solely on circumstantial evidence. The interpretation of circumstantial evidence is very subjective and fraught with the danger of false conviction. The question of reasonable doubt in favor of accused, the possibility of some rationale explanation for various events in favor of accused cannot be ruled out . It will be amply clear at a later stage that most of the incriminating circumstances as relied upon by the prosecution are actually indicative of innocence of accused and can be explained very reasonably in natural course associated with such happenings.
Page #48 to 65
A very long sermon by the Ld Judge, kind of trying to get a justification for deviating from the well established tenet of criminal jurisprudence, that is innocent till proven guilty. But nonetheless Hon court re - iterates the well established Panch Sheel of circumstantial evidence.
1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances must be or should and not may be established;
2) The facts so established should be consistent only with the hypothesis of the guilt of the accused,
that is to say, they should not be explained on any other hypothesis except that the accused is guilty;
3) The circumstances should be of a conclusive nature and tendency;
4) They should exclude every possible hypothesis except the one to be proved;
5) There must be a chain of evidence so complete asnot 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
It will be clear sooner that this Panch Sheel was broken in this case.
Page # 65 Onwards
The Hon judge starts appreciating the evidence from this page onwards. The judge cites few orders by Hon Apex Court such as State of Maharashtra Vs. Sukhdeo Singh AIR 1992 SC 2100, Dharni Dhar Vs. State of U.P. (2010) 7 SCC 759, Kheruddin Vs. State of West Bengal (2013) 5 SCC 753, etc and comes to the conclusion that the admission made by the accused under S.313 CrPC can be made the sole basis for his conviction.
This entire argument and reasoning given by the Hon Judge can be put to rest by another order of the Hon Apex Court in In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114,:
The argument of the prosecution and the part of reasoning by the Hon judge that both the deceased were seen alive with the accused persons at about 9.30 P.M. on 15.05.2008 at L-32, Jalvayu Vihar, N.O.I.D.A and the same was admitted by the accused also under S.313 CrPC, is nothing but a natural day to day happening. It happens in almost lacs of households everyday, that drivers drop the owners in the evening and the same are attended by their servants and happily embraced by children. It shows the honesty of the accused to admit a natural daily normal event in the evening. The entire chain of events leading to conviction is built around this normal innocuous admission by the accused.
The Hon court goes on to type the prosecution story in next 3-4 pages and concludes at Page #70 and # 71 as follows
....in their relation to the facts of the particular case as envisaged in section 114 of Evidence Act and can reasonably be presumed that it is the accused and accused only who have murdered the deceased and none else for want of giving evidence in rebuttal under section 106 of the Evidence Act which provides that when any fact is especially within the knowledge of any person,....
What a travesty that Hon court presumes that accused are murderers for want of giving evidence in rebuttal. No where in the law it is written that accused in criminal case is to give evidence in rebuttal, in fact the Hon court goes on to make another statement at Page #72 beyond the reach of his brief..
.....This was the bounden duty of both the accused personally knowing the whole circumstances of the
case to give evidence on their behalf and to submit to cross-examination....
The legislature has clearly postulated S.313 CrPC for accused to explain the incriminating circumstances and S.315 CrPC in case accused wishes to be the witness, the legislature further goes on to say that no adverse inference or comments can be drawn for the failure of the accused to become the witness. Despite this clear position of law the Hon Judge based his conviction on the failure of accused to give rebuttal evidence. This perverse and against the well established position of law.
Even though the presumption of innocence of accused is not a law in Indian Judiciary as it is under US and UK law, but this is well enshrined in our criminal jurisprudence. The bigger question is can the presumption of innocence be countered by the presumption drawn under S.114 of The Indian Evidence Act. There are plethora of orders by the Hon Apex court wherein the the application of S.114 of the Indian Evidence Act was held valid to counter the presumption of guilt as under Negotiable Instrument Act etc, but nowhere in the law it is stated that a presumption of innocence can be countered under S.114 CrPC. The guilt of the accused has to be proved by the prosecution beyond reasonable doubt and even if the circumstances are relied they must and must only indicate to the guilt of accused.
Page # 71 to # 86
The Hon court goes on to discuss various orders of the Hon higher courts on the issue of S.106 of The Indian Evidence Act and also about the presumption against the accused in case he does not honor the witness box under S.315 CrPC. It is interesting to note that Hon court did not once refer to S.315 CrPC, why ?
The S.315 CrPC is reproduced below...
315. Accused person to be competent witness.
(1) Any person accused of an offence before a Criminal Court shall be a competent witness for
the defence and may give evidence on oath in disproof of the charges made against him or any
person charged together with him at the same trial:
Provided that—
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of
the parties or the Court or give rise to any presumption against himself or any person
charged together with him at the same trial.
It is abundantly clear that Hon Session Judge went against the mandate of S.315(b) CrPC and drew presumption against accused even though it was explicitly prohibited by the law makers. The order based on such illegality is perverse and deserves to be set aside.
At this stage it is also prudent to discuss about the circumstances which the Hon court and prosecution was referring to which forced the Hon court to overrule the legislature, are they so compelling, no they are not..
The case of the prosecution was that at around 0930 both the deceased were seen with the accused, it was also admitted that at around 1130 both the accused retired to their bed, it was also proved that both the deceased were killed after around 1130 of the same night in a house where these accused were sleeping or retired to bed at aroud 1130.
There is nothing unusual about happenings till 1130, as explained earlier seeing deceased with accused at around 0930 is normal and natural thing as happens in lacs of households everyday, family members finish their dinner by around 1100 : 1130 is also very natural, the daughter/children is put in her room is also very natural and servants remaining awake to finish of the left over work is also very natural. Whether accused could explain this or not, cannot be the matter of any grave seriousness. The point is what happens afterwards. Once the parents retire to the bed at around 1130, in normal course of routine they are expected to get up only in the morning. So they are not expected to explain the happening between 1130 till they are awake and come out. At around 0600 in the morning the maid servant pressed the bell, it is very natural that in the first bell the owners will not respond if the servant is in house and he is expected to open. It is quite likely that in the second bell also the owners will not respond, thinking that servant may be here and there, but the third bell is really a matter of concern and the owners will get up to see why the servant has not opened and who is ringing the bell. Thats precisely what happend and can be made out from the evidence. So in no way the criminality of the accused is reflected from the events and behavior of the accused till now. This is to be noted that guilt is presumed based on circumstantial evidence and hence such explanation of events and behavior is necessitated and must have been assessed by the Hon Judge.
The extract of PW-10 Bharti Mandal testimony as relied upon by the Hon Judge
..........Dr. Nupur Talwar threw keys from balcony and told her that the door is not locked and only latched from outside and then she came back and opened the latch of the mesh door of the passage and came inside the house......
There is no problem as this statement indicates the innocence of the accused. The accused Mrs Nupur Talwar response to Pw-10 Bharati Mandal was very natural and it must have happened in the past, that probably the deceased Hemraj has gone out to fetch the milk and locked and she should wait. Nupur Talwar assertion that it was locked is also very natural as if it was only latched the maid servant Bharti Mandal should have opened without further enquiry, so she suggested to throw the keys from the side window, later on after throwing the keys when she came near the mesh door, she realised that lo it was just latched from outside and not locked. It is pertinent to mention that maid servant Bharati Mandal opened the mesh door from outside and came in, suggesting the involvement of some third person. There was no way that the accused could have gotten the outer door latched from outside while being inside. It was prosecution duty to establish how the outer mesh door was latched from outside.
Even otherwise where was the need for accused to make any such big drama of lock / latch and throwing keys. They could have simply kept all the doors open for maid servant to come in and could have claimed that Hemaj ran away after killing their daughter. The inference drawn by the Hon Judge is perverse and against very nature of human conduct. Moreover at Page # 87 of the order the Hon court writes down the admission of PW-10 Bharati Mandal that she was tutored, once it was admitted that she was tutored and material improvement is found in her submission, then there was absolutely no need for the Hon court to justify inclusion of her evidence in Page # 87 onwards. It is not to be forgotten that conviction was based on the circumstantial evidence only, so the credibility of the witness has to be beyond the minutest spec of doubt. Page # 91 Para #2 the Hon court observes
......One must not forget that P.W.-10 Bharti Mandal is totally illiterate and bucolic lady from a lower-strata of the society and hails from Malda District of West Bengal who came to N.O.I.D.A. to perform menial job to sustain herself and family and therefore, if she has stated that she has given her statement on the basis of tutoring, her evidence cannot be discarded or rejected.....
This is unprecedented and the Hon Judge is writing a law that when an illiterate or bucolic lady makes a statement, even if it is tutored, then the same cannot be rejected. This is the perverse argument that an illiterate or bucolic lady cannot be tutored or influenced.
With this background which jolts the very foundation of the decision making process by the Hon court, we will analyse the evidence one by one and establish that Panch-sheel as enumerated by the Hon court gets completely violated, the appreciation of the evidence by the Hon court was perverse and bad in law.
Evidence # 1
Admission by accused and proof by Prosecution that they were together with deceased from 0930 PM till 1130 PM of that fateful night.
This is a natural aspect as discussed above, nothing incriminating comes out of this.
Evidence # 2
That no outsider was seen between 1130 PM till 0600 Hrs in the morning.
This was major issue based on which the Hon court convicted the accused stating that accused failed to give the rebuttal evidence and hence a presumption can be drawn that they and they only murdered Arushi and Hemraj. The drawing of presumption of guilt of accused for their failure to give rebuttal evidence is violative of mandatory provision of S.315(b) CrPC as discussed in the earlier paras of this submission. Moreover the Hon court heavily relied on the statement of the security guard that no outsider was seen loitering around, well that is not the conclusive proof that no outsider could come in or go out. It was the duty of the prosecution to establish that all the people who came in and went out from 1130 PM till 0600 AM in the morning were rightly recollected by the security guard. It was not done. It is not to cause any aspersion on the duty and responsibility of a security guard, but he is a human being, a murderer who kills two people can easily hoodwink security guards, moreover security guard can make some false statement to save on his job. The reasonable possibilities based on normal human conduct are their, so this is no evidence or lapse on the part of accused which can get them conviction.
Evidence # 3
This has been discussed in detail in above paragraphs. It indicates the innocence and normal conduct of the accused rather than otherwise.
Evidence # 4
Unequivocally, white discharge was found in the vaginal cavity of Ms. Aarushi at the time of postmortem examination of her dead body by Dr. Sunil Kumar Dohre and this fact has not been gainsaid by the accused persons in their statements under section 313 Cr.P.C. Presence of white discharge in the vaginal cavity of Ms. Aarushi denotes that she was engaged in sexual intercourse, albeit, no spermatozoa was found in the vaginal swab.
Presence of white fluid in the vaginal cavity of a child of age 14, cannot conclude that she was engage in sexual intercourse. It is true that if a female is engaged in the sexual activity then white fluid would be there in the vaginal cavity, but the opposite is not always true.
The hon judge record the evidence of D.W - 3 as follows at Page # 43.
...........D.W.-3 Dr. Urmil Sharma had categorically stated in her evidence that in a girl of about 13-14 years of age, due to hormonal changes between two menstrual cycles, there is normal physical and biological discharge which is of white colour and appears at the cervix; if there is more discharge, then the same can flow out of the vaginal canal and through the vaginal opening; normal physiological and biological discharge will not stick to vaginal wall unless and until one does not get infected; ....
The prosecution makes no effort to contradict this expert opinion, there is no sound basis in front of the Hon court to discard this opinion. Moreover with due humility, and without being judgmental and with respect to the departed soul of Ms Arushi, children of age 14 with so much exposure on sexual activities via internet, mobile, peer group etc indulge in self gratification, which can cause white fluid in the cavity.
Now for argument sake for a moment if we agree that Hemraj and Arushi were engaged in the sexual activity as concluded by the Hon court, then the spermatozoa should have been found in the vaginal swab, but it was not. This gives rise to one more possibility that may be Hemraj was using condom, but prosecution made no efforts to trace the used condom, prosecution or medical evidence provided no clue about use of condom by Hemraj.
So it cannot be conclusively established that they were engaged in sexual activity, which may have angered the father accused Rajesh Talwar. A reference to Honor Killing theory is also prudent at this stage. Where was the loss of Honor for accused Rajesh Talwar and Nupur Talwar ? No one other than 4 of them would have ever come to know about the incident. Only when the socially unacceptable information becomes public the question of Honor Killing comes, not before that. A prudent man would see off Hemraj with money to keep his mouth shut and put better watch on his ward. There was absolutely non need for an educated broad minded doctor to kill for the act.
Evidence # 5
That her vaginal cavity was open and thus she was into the act..
This is against the fundamental nature of female genitals. One need not be an expert to make an observation that female vagina is quite flexible and it just closes as soon as the penis is taken out. Unless and untill vagina is damaged and forcibly kept open it cannot remain open.
The hon judge record the evidence of D.W - 3 as follows at Page # 43.
....during the course of vaginal examination, the vaginal canal cannot be seen unless both labia are separated with the help of an instrument; the labia are separated with the hand and for the purposes of seeing the vaginal canal, a speculum has to be inserted, only then the vaginal canal will be seen; if the dead body of 13-14 years old girl is examined for the purposes of her vaginal examination, then the vaginal orifice shall not be found open and the vaginal canal cannot be seen; in case of a girl who has a torn hymen (old torn) and is used to sexual intercourse, if after her death and during the course of rigor mortis, her vagina is cleaned, then in that situation, the mouth of the vagina shall not remain open; in a case where rigor mortis has started and after an hour the vagina is opened and cleaned with cotton, even then the mouth of the vagina will remain closed and even if rigor mortis has developed all over the body and if someone attempts to forcibly open the vagina, then definitely, there will be injury marks in the vagina and it may remain open.....
The evidence of Dw4 Dr R K Sharma is also recorded by the Hon judge in his order at Page # 44
....the evidence of D.W.-4 Dr. R.K. Sharma who too has deposed that in a case where the rigor mortis has just started or has developed and if someone tries to interfere with the vaginal cavity or genital organs, then in that area, perimortem injuries will be caused, which will depend upon how much force was used; in this area, one is bound to see bruises, lacerations, tears and during the course of postmortem, these would be clearly visible; the injures which are caused after the death, they are called perimortem injuries; if during the course of postmortem, the postmortem doctor while conducting vaginal examination finds that the vaginal orifice is opened and vaginal cavity is visible, then in this situation 'no abnormality detected' cannot be written in the postmortem examination report; no subjective finding can be given;...
The prosecution did not rebut the above deposition of experts and the Hon court had no basis to discard the same. The vaginal cavity could not have remained opened post sexual act for a healthy child of around 14.
Evidence # 6
.....Evidence of P.W.-36 Dr. Naresh Raj to the effect that swelling of the pecker of Hemraj was because either he had been murdered in the midst of sexual intercourse or just before he was about to have the sexual intercourse which he has stated on the basis of marital experience.....
Dr Naresh Raj was expected to give his evidence based on medical science not based on his marital experience, which any married man could give.
Even then recording and assessment by the Hon court at Page # 146 is in contradiction with this..
......It is also possible that after bludgeoning Hemraj with golf stick he was carried in a bed sheet by both the accused to the terrace when he was in a state of concussion and thereafter on the terrace his throat was slit and body was dragged...
The simple question is how could he have maintained the erection, if he was dragged in a state of concussion ?
The Hon court record the evidence of Dw-4 at Page # 105 as follows.
The way the expert opinion was dismissed by the Hon court with a cavalier and casual approach seems to suggest that the Hon court was inclined to convict the accused rather than doing the justice. How can the expert testimony that the penis can swell due to putrification can be dismissed ? Prosecution provided no counter argument or evidence for the same.A very long sermon by the Ld Judge, kind of trying to get a justification for deviating from the well established tenet of criminal jurisprudence, that is innocent till proven guilty. But nonetheless Hon court re - iterates the well established Panch Sheel of circumstantial evidence.
1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances must be or should and not may be established;
2) The facts so established should be consistent only with the hypothesis of the guilt of the accused,
that is to say, they should not be explained on any other hypothesis except that the accused is guilty;
3) The circumstances should be of a conclusive nature and tendency;
4) They should exclude every possible hypothesis except the one to be proved;
5) There must be a chain of evidence so complete asnot 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
It will be clear sooner that this Panch Sheel was broken in this case.
Page # 65 Onwards
The Hon judge starts appreciating the evidence from this page onwards. The judge cites few orders by Hon Apex Court such as State of Maharashtra Vs. Sukhdeo Singh AIR 1992 SC 2100, Dharni Dhar Vs. State of U.P. (2010) 7 SCC 759, Kheruddin Vs. State of West Bengal (2013) 5 SCC 753, etc and comes to the conclusion that the admission made by the accused under S.313 CrPC can be made the sole basis for his conviction.
This entire argument and reasoning given by the Hon Judge can be put to rest by another order of the Hon Apex Court in In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114,:
“It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events….”
Well, it is not the argument that in-culpatory statements made by the accused are useless but they have to be seen along with the robustness of the prosecution evidence. Moreover it is to be seen whether the specific admission of accused under S.313 CrPC which evoked so much explaining by the Hon court is really that crucial and really goes against the accused. No it does not, the Hon court has failed to appreciate the evidence and the statement of accused on this point. The conclusion of Hon court on this point violates the Panchshel Tenet #2 as elucidated by the Hon court itself at Page # 65 of the order.
The argument of the prosecution and the part of reasoning by the Hon judge that both the deceased were seen alive with the accused persons at about 9.30 P.M. on 15.05.2008 at L-32, Jalvayu Vihar, N.O.I.D.A and the same was admitted by the accused also under S.313 CrPC, is nothing but a natural day to day happening. It happens in almost lacs of households everyday, that drivers drop the owners in the evening and the same are attended by their servants and happily embraced by children. It shows the honesty of the accused to admit a natural daily normal event in the evening. The entire chain of events leading to conviction is built around this normal innocuous admission by the accused.
The Hon court goes on to type the prosecution story in next 3-4 pages and concludes at Page #70 and # 71 as follows
....in their relation to the facts of the particular case as envisaged in section 114 of Evidence Act and can reasonably be presumed that it is the accused and accused only who have murdered the deceased and none else for want of giving evidence in rebuttal under section 106 of the Evidence Act which provides that when any fact is especially within the knowledge of any person,....
What a travesty that Hon court presumes that accused are murderers for want of giving evidence in rebuttal. No where in the law it is written that accused in criminal case is to give evidence in rebuttal, in fact the Hon court goes on to make another statement at Page #72 beyond the reach of his brief..
.....This was the bounden duty of both the accused personally knowing the whole circumstances of the
case to give evidence on their behalf and to submit to cross-examination....
The legislature has clearly postulated S.313 CrPC for accused to explain the incriminating circumstances and S.315 CrPC in case accused wishes to be the witness, the legislature further goes on to say that no adverse inference or comments can be drawn for the failure of the accused to become the witness. Despite this clear position of law the Hon Judge based his conviction on the failure of accused to give rebuttal evidence. This perverse and against the well established position of law.
Even though the presumption of innocence of accused is not a law in Indian Judiciary as it is under US and UK law, but this is well enshrined in our criminal jurisprudence. The bigger question is can the presumption of innocence be countered by the presumption drawn under S.114 of The Indian Evidence Act. There are plethora of orders by the Hon Apex court wherein the the application of S.114 of the Indian Evidence Act was held valid to counter the presumption of guilt as under Negotiable Instrument Act etc, but nowhere in the law it is stated that a presumption of innocence can be countered under S.114 CrPC. The guilt of the accused has to be proved by the prosecution beyond reasonable doubt and even if the circumstances are relied they must and must only indicate to the guilt of accused.
Page # 71 to # 86
The Hon court goes on to discuss various orders of the Hon higher courts on the issue of S.106 of The Indian Evidence Act and also about the presumption against the accused in case he does not honor the witness box under S.315 CrPC. It is interesting to note that Hon court did not once refer to S.315 CrPC, why ?
The S.315 CrPC is reproduced below...
315. Accused person to be competent witness.
(1) Any person accused of an offence before a Criminal Court shall be a competent witness for
the defence and may give evidence on oath in disproof of the charges made against him or any
person charged together with him at the same trial:
Provided that—
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of
the parties or the Court or give rise to any presumption against himself or any person
charged together with him at the same trial.
It is abundantly clear that Hon Session Judge went against the mandate of S.315(b) CrPC and drew presumption against accused even though it was explicitly prohibited by the law makers. The order based on such illegality is perverse and deserves to be set aside.
At this stage it is also prudent to discuss about the circumstances which the Hon court and prosecution was referring to which forced the Hon court to overrule the legislature, are they so compelling, no they are not..
The case of the prosecution was that at around 0930 both the deceased were seen with the accused, it was also admitted that at around 1130 both the accused retired to their bed, it was also proved that both the deceased were killed after around 1130 of the same night in a house where these accused were sleeping or retired to bed at aroud 1130.
There is nothing unusual about happenings till 1130, as explained earlier seeing deceased with accused at around 0930 is normal and natural thing as happens in lacs of households everyday, family members finish their dinner by around 1100 : 1130 is also very natural, the daughter/children is put in her room is also very natural and servants remaining awake to finish of the left over work is also very natural. Whether accused could explain this or not, cannot be the matter of any grave seriousness. The point is what happens afterwards. Once the parents retire to the bed at around 1130, in normal course of routine they are expected to get up only in the morning. So they are not expected to explain the happening between 1130 till they are awake and come out. At around 0600 in the morning the maid servant pressed the bell, it is very natural that in the first bell the owners will not respond if the servant is in house and he is expected to open. It is quite likely that in the second bell also the owners will not respond, thinking that servant may be here and there, but the third bell is really a matter of concern and the owners will get up to see why the servant has not opened and who is ringing the bell. Thats precisely what happend and can be made out from the evidence. So in no way the criminality of the accused is reflected from the events and behavior of the accused till now. This is to be noted that guilt is presumed based on circumstantial evidence and hence such explanation of events and behavior is necessitated and must have been assessed by the Hon Judge.
The extract of PW-10 Bharti Mandal testimony as relied upon by the Hon Judge
..........Dr. Nupur Talwar threw keys from balcony and told her that the door is not locked and only latched from outside and then she came back and opened the latch of the mesh door of the passage and came inside the house......
There is no problem as this statement indicates the innocence of the accused. The accused Mrs Nupur Talwar response to Pw-10 Bharati Mandal was very natural and it must have happened in the past, that probably the deceased Hemraj has gone out to fetch the milk and locked and she should wait. Nupur Talwar assertion that it was locked is also very natural as if it was only latched the maid servant Bharti Mandal should have opened without further enquiry, so she suggested to throw the keys from the side window, later on after throwing the keys when she came near the mesh door, she realised that lo it was just latched from outside and not locked. It is pertinent to mention that maid servant Bharati Mandal opened the mesh door from outside and came in, suggesting the involvement of some third person. There was no way that the accused could have gotten the outer door latched from outside while being inside. It was prosecution duty to establish how the outer mesh door was latched from outside.
Even otherwise where was the need for accused to make any such big drama of lock / latch and throwing keys. They could have simply kept all the doors open for maid servant to come in and could have claimed that Hemaj ran away after killing their daughter. The inference drawn by the Hon Judge is perverse and against very nature of human conduct. Moreover at Page # 87 of the order the Hon court writes down the admission of PW-10 Bharati Mandal that she was tutored, once it was admitted that she was tutored and material improvement is found in her submission, then there was absolutely no need for the Hon court to justify inclusion of her evidence in Page # 87 onwards. It is not to be forgotten that conviction was based on the circumstantial evidence only, so the credibility of the witness has to be beyond the minutest spec of doubt. Page # 91 Para #2 the Hon court observes
......One must not forget that P.W.-10 Bharti Mandal is totally illiterate and bucolic lady from a lower-strata of the society and hails from Malda District of West Bengal who came to N.O.I.D.A. to perform menial job to sustain herself and family and therefore, if she has stated that she has given her statement on the basis of tutoring, her evidence cannot be discarded or rejected.....
This is unprecedented and the Hon Judge is writing a law that when an illiterate or bucolic lady makes a statement, even if it is tutored, then the same cannot be rejected. This is the perverse argument that an illiterate or bucolic lady cannot be tutored or influenced.
With this background which jolts the very foundation of the decision making process by the Hon court, we will analyse the evidence one by one and establish that Panch-sheel as enumerated by the Hon court gets completely violated, the appreciation of the evidence by the Hon court was perverse and bad in law.
Evidence # 1
Admission by accused and proof by Prosecution that they were together with deceased from 0930 PM till 1130 PM of that fateful night.
This is a natural aspect as discussed above, nothing incriminating comes out of this.
Evidence # 2
That no outsider was seen between 1130 PM till 0600 Hrs in the morning.
This was major issue based on which the Hon court convicted the accused stating that accused failed to give the rebuttal evidence and hence a presumption can be drawn that they and they only murdered Arushi and Hemraj. The drawing of presumption of guilt of accused for their failure to give rebuttal evidence is violative of mandatory provision of S.315(b) CrPC as discussed in the earlier paras of this submission. Moreover the Hon court heavily relied on the statement of the security guard that no outsider was seen loitering around, well that is not the conclusive proof that no outsider could come in or go out. It was the duty of the prosecution to establish that all the people who came in and went out from 1130 PM till 0600 AM in the morning were rightly recollected by the security guard. It was not done. It is not to cause any aspersion on the duty and responsibility of a security guard, but he is a human being, a murderer who kills two people can easily hoodwink security guards, moreover security guard can make some false statement to save on his job. The reasonable possibilities based on normal human conduct are their, so this is no evidence or lapse on the part of accused which can get them conviction.
Evidence # 3
The Evidence of Bharati Mandal and events unfolded around 0600 in the morning
This has been discussed in detail in above paragraphs. It indicates the innocence and normal conduct of the accused rather than otherwise.
Evidence # 4
(As observed by the Hon court at Page # 97)
Presence of white fluid in the vaginal cavity of a child of age 14, cannot conclude that she was engage in sexual intercourse. It is true that if a female is engaged in the sexual activity then white fluid would be there in the vaginal cavity, but the opposite is not always true.
The hon judge record the evidence of D.W - 3 as follows at Page # 43.
...........D.W.-3 Dr. Urmil Sharma had categorically stated in her evidence that in a girl of about 13-14 years of age, due to hormonal changes between two menstrual cycles, there is normal physical and biological discharge which is of white colour and appears at the cervix; if there is more discharge, then the same can flow out of the vaginal canal and through the vaginal opening; normal physiological and biological discharge will not stick to vaginal wall unless and until one does not get infected; ....
The prosecution makes no effort to contradict this expert opinion, there is no sound basis in front of the Hon court to discard this opinion. Moreover with due humility, and without being judgmental and with respect to the departed soul of Ms Arushi, children of age 14 with so much exposure on sexual activities via internet, mobile, peer group etc indulge in self gratification, which can cause white fluid in the cavity.
Now for argument sake for a moment if we agree that Hemraj and Arushi were engaged in the sexual activity as concluded by the Hon court, then the spermatozoa should have been found in the vaginal swab, but it was not. This gives rise to one more possibility that may be Hemraj was using condom, but prosecution made no efforts to trace the used condom, prosecution or medical evidence provided no clue about use of condom by Hemraj.
So it cannot be conclusively established that they were engaged in sexual activity, which may have angered the father accused Rajesh Talwar. A reference to Honor Killing theory is also prudent at this stage. Where was the loss of Honor for accused Rajesh Talwar and Nupur Talwar ? No one other than 4 of them would have ever come to know about the incident. Only when the socially unacceptable information becomes public the question of Honor Killing comes, not before that. A prudent man would see off Hemraj with money to keep his mouth shut and put better watch on his ward. There was absolutely non need for an educated broad minded doctor to kill for the act.
Evidence # 5
That her vaginal cavity was open and thus she was into the act..
This is against the fundamental nature of female genitals. One need not be an expert to make an observation that female vagina is quite flexible and it just closes as soon as the penis is taken out. Unless and untill vagina is damaged and forcibly kept open it cannot remain open.
The hon judge record the evidence of D.W - 3 as follows at Page # 43.
....during the course of vaginal examination, the vaginal canal cannot be seen unless both labia are separated with the help of an instrument; the labia are separated with the hand and for the purposes of seeing the vaginal canal, a speculum has to be inserted, only then the vaginal canal will be seen; if the dead body of 13-14 years old girl is examined for the purposes of her vaginal examination, then the vaginal orifice shall not be found open and the vaginal canal cannot be seen; in case of a girl who has a torn hymen (old torn) and is used to sexual intercourse, if after her death and during the course of rigor mortis, her vagina is cleaned, then in that situation, the mouth of the vagina shall not remain open; in a case where rigor mortis has started and after an hour the vagina is opened and cleaned with cotton, even then the mouth of the vagina will remain closed and even if rigor mortis has developed all over the body and if someone attempts to forcibly open the vagina, then definitely, there will be injury marks in the vagina and it may remain open.....
The evidence of Dw4 Dr R K Sharma is also recorded by the Hon judge in his order at Page # 44
....the evidence of D.W.-4 Dr. R.K. Sharma who too has deposed that in a case where the rigor mortis has just started or has developed and if someone tries to interfere with the vaginal cavity or genital organs, then in that area, perimortem injuries will be caused, which will depend upon how much force was used; in this area, one is bound to see bruises, lacerations, tears and during the course of postmortem, these would be clearly visible; the injures which are caused after the death, they are called perimortem injuries; if during the course of postmortem, the postmortem doctor while conducting vaginal examination finds that the vaginal orifice is opened and vaginal cavity is visible, then in this situation 'no abnormality detected' cannot be written in the postmortem examination report; no subjective finding can be given;...
The prosecution did not rebut the above deposition of experts and the Hon court had no basis to discard the same. The vaginal cavity could not have remained opened post sexual act for a healthy child of around 14.
Evidence # 6
Dr Naresh Raj was expected to give his evidence based on medical science not based on his marital experience, which any married man could give.
Even then recording and assessment by the Hon court at Page # 146 is in contradiction with this..
......It is also possible that after bludgeoning Hemraj with golf stick he was carried in a bed sheet by both the accused to the terrace when he was in a state of concussion and thereafter on the terrace his throat was slit and body was dragged...
The simple question is how could he have maintained the erection, if he was dragged in a state of concussion ?
The Hon court record the evidence of Dw-4 at Page # 105 as follows.
........D.W.-4 Dr. R.K. Sharma has rightly pointed out in his statement that in the postmortem examination report of Hemraj, Dr. Naresh Raj has written that eyes were protruding out, blood oozing out of mouth and nostrils, stomach was distended and there was swelling in the penis which are all signs of putrification and therefore, swelling in the penis and scrotum was an account of putrification of the dead body and not because of sexual intercourse.....
and concludes at Page # 105
.......Be that as it may, the fact remains that the penis of Hemraj was found swollen at the time of postmortem examination of his dead body. Death of both the deceased has taken place inside the flat of the accused persons and therefore, mode and manner of committing the murder of the deceased are within the especial knowledge of the accused which they could not explain......
.......Be that as it may, the fact remains that the penis of Hemraj was found swollen at the time of postmortem examination of his dead body. Death of both the deceased has taken place inside the flat of the accused persons and therefore, mode and manner of committing the murder of the deceased are within the especial knowledge of the accused which they could not explain......
It is perverse to conclude that since the death of both the deceased has taken place inside the flat of the accused persons and therefore, mode and manner of committing the murder of the deceased are within the special especial knowledge of the accused which they could not explain...so they are the killers.
Failure of Prosecution to re construct the murder
Conviction based on circumstantial evidence calls for reconstructing the chain of event. And the chain must be such that it indicates only the guilt of accused and nothing else. Prosecution case is absolutely vague and non deterministic on this aspect and prosecution is taking inadmissible salvage in the fact that it happened inside a flat in the night so they cannot be expected to find out the absolute truth. What a failure of investigation science ? What an irony that investigating agency wants everything on the platter.
Prosecution claims that accused Rajesh Talwar and Nupur Talwar goes to sleep at around 1130 PM leaving their now deceased daughter Arushi in her hotel-like (which cannot be opened from outside) lock room and servant Hemraj in the flat for doing the left over household cores. They further fantasize that somewhere after 1130 PM and before 0600 AM the accused persons come out and see to their horror that Arushi and Hemraj are in the midst of sexual act, and they kill both of them to save the family honor.
Is this chain of event supported by circumstantial evidence so strong that no reasonable alternative is possible with the same set of evidence ? If so, then only accused can be considered to be convicted otherwise not.
1. From the evidence it is clear that Arushi was not a virgin, it also implies from the story of the prosecution that Arushi and Hemraj were having consensual relationship.
Before we proceed further, it must be stressed that it is impossible for a parent of 14 year old daughter to leave her around a male servant if not trusted. At every moment the parent would look for signs of any mal doing between the daughter and the servant, and if found corrective action would have been taken. There is no evidence by the prosecution that there was any such consensus relationship between the two deceased, and there is no evidence by the prosecution that Hemraj was a black sheep or a dishonorable man.
2. Continuing the story of prosecution, after sometime, that is after both the accused persons retired to their bedroom, either Arushi opened the door of her room from inside or Hemraj knocked for smooth entry, which Arushi allowed. So there was no need for the requirement of Keys with the Hemraj.
3. While they were in the act, something catastrophic happened, either one of the accused or both of the accused or one by one, got up and saw them in the act and killed them.
a. Prosecution does not establish or even come forward to state, who saw them in the act ?
b. Prosecution does not establish or even come forward to state, why the accused came out of their bedroom ? In general we come out for going to toilet, but the bedroom of the accused had attached bathroom, so this possibility is also ruled out.
c. Now for argument sake we assume the best possible and likely scenario in favor of prosecution that accused Rajesh Talwar comes out for more wine, finding no glass near the bottle on the dining table, he shouts for Hemraj, seeing that Hemaraj is not coming out he goes near his room and tries to knock and finds that Hemraj is not there too. So with fear in his eyes about the safety of his daughter he moves towards her bedroom, now there are two possibilities. If the room was a bit open, then Hemraj and Arushi would have adjusted themselves after hearing the noise as made by Rajesh Talwar, but if the room was locked from inside then the first urge for the accused Rajesh Talwar would have been to knock and call for the Arushi and inquire about her safety, so any knock would have cautioned Hemraj and Arushi if inside and they would have adjusted before opening the door. The worst case scenario for the Hemraj would be that the room was partially open and some noises were heard by the accused Rajesh Talwar, and instead of saving her daughter, accused Rajesh Talwar rushed to get the stick, but after getting the stick he would have opened the door, giving sufficient momemnts to Hemraj to turn and defend himself. But this also is not evidenced.
The prosecution simply comes up with a theory that Hemraj was blissfully ignorant of Rajesh Talwar who strikes him with the golf stick, then removes his body from Arushi and kills her too. Where is the presumption that a man is always on top ? It is impossible for Hemraj not to hear the opening of the door and attempt to thwart the attack with his hand. It was impossible for Hemraj to maintain the erection while hit by stick and killed after the knife wound.
4. Now for argument sake we accept that Rajesh Talwar was successful in hitting the Hemraj while he was in act, now the onerous task for accused would be to remove his stout body from Arushi, in the process he would have kept his stick down and then only he could have prepared himself for a deadly blow to his daughter ?
5. Now after hitting them, accused Rajesh Talwar moves around, and possibly joined by Nupur Talwar too, and gets some surgical knife and kills both the deceased even if they were breathing. But there is no sign of any blood of Hemraj in the room, no traces at all.
6. There is no traces of any semen, any condom, any fluid, any hair, nothing whatsoever of Hemraj in the room, which is impossible if the man was in coitus with someone and dragged up. If there was any regular consensus relationship between the two, some traces would have certainly found out.
7. The prosecution is not able to establish how an event inside the four walls of a room can be termed as Family Honor, when the same can be suppressed from the public eye very easily by keeping Hemraj and Arushi alive.
8. Now this entire exercise would have been done in some dress, that dress was bound to get soiled, prosecution has not been able to produce any soiled dress of the accused, rather prosecution claimes that dress was unscathed and it should have been stained.
Prosecution argument that after seeing the daughter killed, they should have embraced her and in the process their dress could have been soiled out of parental love, can be extended to find the hole in their theory. After killing Hemraj the better senses would have prevailed and they would have fallen short of killing their daughter out of love and affection.
Page # 107 of the said order
.............If Mr. A.G.L. Kaul has mentioned in his closure report that no blood of Hemraj was found on the bed-sheet and pillow of Aarushi, there is no evidence to prove that Hemraj was murdered in the room of Aarushi, scientific tests on Dr. Rajesh Talwar and Dr. Nupur Talwar have not conclusively indicated their involvement in the crime, the exact sequence of events in the intervening night of 15/16.05.2008 to 6.00 A.M. in the morning is not clear, the offence has taken place in an enclosed flat, hence, no eye-witnesses are available and the circumstantial evidence collected during the course of investigation have critical and substantial gaps and there is absence of clear-cut motive and non recovery of any weapon of offence and their link either to the servants or to the parents, then on that ground no dent is created on the case of prosecution. The court is not bound by the said observations/findings of the investigating officer Mr. Kaul. The learned Special Judicial Magistrate (C.B.I.), Ghaziabad after disagreeing with the reasons for submitting closure report, summoned the accused persons to stand trial. That order has finally been affirmed by the Hon'ble Supreme Court and therefore, from the said findings of the investigating officer no benefit can be derived by the accused persons....
Page # 137
After elaborate discussion on the internet router start - stopping during the night of incident, the Hon court observes as follows..
....It should be borne in mind that both the accused are acquainted with the internet functioning and therefore, they may have continued with the start and stop activity of internet router till 13:11:44 hours on 16.05.2008 with intent to confuse and camouflage the investigating agency as also to create evidence in their favour....
Accused in their statement under S.313 CrPC did not take any plea or defense around this router activity, so where is the question of confusing and camouflaging the investigating agency ? It is beyond the normal act of a non-criminal doctor duo, who have just killed their daughter, and pushed the body of their male servant to terrace to come inside their bedroom and start fiddling with the internet router thinking (if at all they could think after such gruesome crime) that it would confuse the investing agency at a later date. If they were so calm and calculating, then they would have certainly not put the body of Hemraj on the terrace, because they knew it would be found out very soon.
It can be easily made out from the order of the Hon court that the Ld Judge applied his logic and mind to counter all the arguments of the defense, rather than sifting the truth from evidence. The approach of the Hon court was absolutely perverse and manifests with illegality, the judgement or the conclusion must flow from the evidence and the arguments of the prosecution not from the negation of the defense statements.
Page # 166
The Hon court opines that..
......It is also possible that whisky bottle might have been lifted after wearing gloves. It is also possible that Sula wine may have also been taken by the accused when he was extremely and intensely in tension after committing the crime or it was partly made empty to show that Hemraj and his friends had consumed the liquor. It is not the case of the accused that Hemraj used to take wine or liquor.
If the accused was intensely tensed, how he could be scheming ? The Hon court even without the argument of the prosecution has come to the conclusion as if accused were hard core criminals capable of confusing the investigating agencies. The hon court asserts that internet router was switched on - off to hoodwink the agency, the Hon court asserts that whisky botte could have been lifted after wearing the gloves, the Hon court opines that the bottle was left empty to show that Hemraj and his friends had consumed liquor, the Hon court further opines that both the accused did some marvellous planning just before or around Pw-10 Bharti Mandal arrival at house in the morning with that latch / unlatch theory. This is beyond the conduct of a normal human being that after killing the servant, they would kill the daughter, attempt to stupidly dump the body on the terrace, clean the murder site, then in between gulp the whisky and sula wine after putting on the gloves, then play with the internet router regularly possibly to confuse the investigating agencies, then wait till morning and enact the drama of latch / unlatch.
Evidence # 7
As relied by prosecution;
.....If both the deceased could not have been found engaged in sexual intercourse there was no reason to make endeavour that factum of sexual intercourse be not mentioned in the postmortem examination report of Ms. Aarushi...
Legality or illegality of this act of accused or his acquaintances apart, which father would like to get his daughter publicly exposed in a public report ? Accused Dr. Talwar is a medical practitioner, an educated person, it was not a big deal that the theory moving around at that time was of some kind of illicit sexual aspect involving his daughter, Dr Talwar could have sensed that this may come out publicly in the Post Mortem report, so he would have wanted by all means to avoid such character assassination of his now deceased daughter. There is nothing unnatural or sinister about this act of Dr Talwar, if at all carried out by him or her.
Most importantly, the prosecution has failed to establish who killed whom. Was it Dr Rajesh Talwar, who hit the first blow, were both the accused together in the act. Was it Dr. Mrs Talwar, who hit Hemraj first. All these changes the ensuing circumstances.
Evidence # 8
This indeed is a matter worth pondering that two murders took place in the flat and both the accused did not get a whisper of the same. Both the accused have taken a stand that the partition wall was of brick with wooden paneling, so sufficient amount of sound proofing was there, moreover they have also taken a stand that AC was functional and it was a noisy AC. Moreover it was the night time, where possibly they were asleep. All this information was available with the prosecution, so it was the bounden duty of the prosecution to establish that even with partition and noisy AC, the significant sound would have reached the bedroom of accused and they should have awaken. So no culpability establishes from this.
These are not the circumstances which justify the circumstantial conviction.
Page # 191 to #195
The Hon court sums up all the circumstances, indicating the guilt of accused. Although the above submission amply demonstrates the innocence of accused, still the circumstances as relied by Hon court is taken up one by one.
1)- That irrefragably in the fateful night of
15/16.05.2008 both the accused were last seen
with both the deceased in Flat No. L-32,
Jalvayu Vihar at about 9.30 P.M. by Umesh
Sharma, the driver of Dr. Rajesh Talwar;
Thats the normal fact and as submitted above happens in lacs of families everyday.
2)- That in the morning of 16.05.2008 at about
6.00 A.M. Ms. Aarushi was found murdered in
her bed-room which was adjacent to the bedroom
of the accused and there was only
partition wall between two bed-rooms;
The Hon court does not clarify what gets established from this. Bit looking at the totality what the Hon court is trying to say that some kind of noise should have been heard by accused person if the murder was handiwork of outsiders. This also has been explained above that wooden cum brick wall provided sufficient isolation, AC was noisy and it was late night time. So natural possibility of not hearing the noise cannot be brushed aside.
3)- That the dead body of the servant Hemraj was
found lying in the pool of blood on the terrace
of flat no. L-32, Jalvayu Vihar on 17.05.2008
and the door of terrace was found locked from
inside;
Fact, does not prove the criminality of accused.
4)- That there is a close proximity between the
point of time when both the accused and the
deceased persons were last seen together
alive and the deceased were murdered in the
intervening night of 15/16.05.2008 and as such
the time is so small that possibility of any other
person(s) other than the accused being the
authors of the crime becomes impossible;
Former part of this is a fact, as explained above both the deceased and accused were staying in the same flat so it is very natural that they will be seen together. It is not that XYZ was last seen with some suspect person who had no role to be there. So this does not help prosecution case. The murder took place between the intervening night of 15/16.05.2008, more likely it happened between 1130 PM to 0600 AM next day morning. It cannot be said that some one else cannot murder. The murder could have taken place as early as 0015 or as late as 0400...This conclusion is bad and perverse.
5)- That the door of Ms. Aarushi's bed-room was
fitted with automatic click-shut lock. P.W.-29
Mahesh Kumar Mishra the then S.P. (City),
N.O.I.D.A. has deposed that when he talked to
Dr. Rajesh Talwar on 16.05.2008 in the
morning, he had told him that in the preceding
night at about 11.30 P.M. he had gone to sleep
with the key after locking the door of Ms.
Aarushi's bed-room from outside. Both the
accused have admitted that door of Ms.
Aarushi's bed-room was having automatic-clickshut
lock like that of a hotel, which could not be
opened from outside without key but could be
opened from inside without key. No explanation
has been offered by the accused as to how the
lock of Ms. Aarushi’s room was opened and by
whom;
It is the prosecution duty to establish that, the onus is not on the accused. Prosecution wants the Hon court to believe that accused saw Hemraj and Arushi in compromising situation and the in anger killed them. This implies that either Arushi opened the door for Hemraj or after finishing his work Hemraj knocked for friendly entry which Arushi reciprocated.
6)- That the internet remained active in the night
of the gory incident suggesting that at least
one of the accused remained awake;
No, it does not conclusively suggest that. Internet modem can remain on even without someone remaining awake.
7)- That there is nothing to show that an
outsider(s) came inside the house in the said
night after 9.30 P.M.;
In case of circumstantial evidence of this nature, this cannot be the gospel truth in a public locality which is manned by few private guards. As submitted above, it was the duty of the prosecution to examine the guard with respect to who came and who went between 1130 PM till 0600 hours correctly, moreover which guard would admit after the incident that he was negligent or sleepy or he saw someone. He just said he saw none loitering around, criminals do not loiter around after the act.
8)- That there was no disruption in the supply of
electricity in that night;
Proves nothing, if it is establish about the connection / disconnection of the modem, then the judicial note can be taken and also supported by internet company person that modem connections can be on / off on its own. The power status of a modem cannot be determined by the service provider, he can just confirm the connection with the network, not the power status.
9)- That no person was seen loitering near the
flats in suspicious circumstances in that night;
As answered in the 7th, evidence of a guard after such gory incident, could not be taken as a gospel truth, he would have realized that he would loose his job instantly.
10)- That there is no evidence of forcible entry of
any outsider(s) in the flat in the night of
occurrence;
This indicates that someone known to Hemraj could have come. The involvement of Krishna etc cannot be ruled out with this evidence.
11)- That there is no evidence of any larcenous act
in the flat;
Insiders would not do that. It is never the defense of accused that some dacoits came and killed both of them.
12)- That in the morning of 16th may 2008 when
the maid came to flat for the purpose of
cleaning and moping a false pretext was made
by Dr. Nupur Talwar that door might have been
locked from outside by the servant Hemraj
although it was not locked or latched from
outside;
This is the misreading of evidence by the Hon court, it has been explained in detail in above submission that it was a most natural and truthful act of Mrs Nupur Talwar.
13)- That the house maid Bharti Mandal has no
where stated that when she came inside the
flat both the accused were found weeping;
There was no reason for them to weep, because they had not seen their daughter by then They got woken up only by the Bharati Mandal's persistent knocking, only after throwing the keys she would have looked around for Hemraj and in the process stumbled at her daughter's room.
14)- That from the testimony of Bharti Mandal it is
manifestly clear that when she reached the flat
and talked to Dr. Nupur Talwar then at that
time she had not complained about the murder
of her daughter and rather she told the maid
deliberately that Hemraj might have gone to
fetch milk from Mother dairy after locking the
wooden door from outside. This lack of
spontaneity is relevant under section 8 of the
Evidence Act;
As explained above in the main submission, this is the most spontaneous act. Hemraj was to open the door to maid servant everyday morning, if he does not that means he he has gone out to fetch milk, another normal event for any ordinary day, after locking/latching the door from outside.
15)- That the clothes of both the accused were not
found soaked with the blood. It is highly
unnatural that parents of deceased Ms. Aarushi
will not cling to and hug her on seeing her
murdered;
Prosecution is being selective on what is natural and what is unnatural. It is not at all natural for any parent to hit a blow to their daughter with golf stick and after that cut the neck with scalpel. It is not at all natural for any ordinary person to hit a blow and then cut with surgical precision, that too to two people in a row, one of them being their daughter. Moreover dress would be soiled in the process of dragging the body terrace as alleged, but prosecution could not found any soiled dress.
16)- That no outsider(s) will dare to take Hemraj to
the terrace in severely injured condition and
thereafter search out a lock to be placed in the
door of the terrace;
That gives a likely possibility of murder of Hemraj on the terrace itself, by friendly intruders.
17)- That it is not possible that an outsider(s) after
committing the murders will muster courage to
take Scotch whisky knowing that the parents of
the deceased Ms. Aarushi are in the nearby
room and his top priority will be to run away
from the crime scene immediately;
It is not an impossibility that friendly (to Hemraj) intruders came and drank first.
18)- That no outsider(s) will bother to take the body
of Hemraj to the terrace. Moreover, a single
person cannot take the body to the terrace;
Suggesting murder on the terrace itself.
19)- That the door of the terrace was never locked
prior to the occurrence but it was found locked
in the morning of 16.05.2008 and the accused
did not give the key of the lock to the police
despite being asked to give the same;
Responded below with Sr # 20
20)- That the accused have taken plea in the
statements under section 313 Cr.P.C. that
about 8-10 days before the occurrence
painting of cluster had started and the navvies
used to take water from water tank placed on
the terrace of the flat and then Hemraj had
started locking the door of the terrace and the
key of that lock remained with him. If it was so
then it was not easily possible for an outsider
to find out the key of the lock of terrace door;
Then it would have been equally difficult for accused also to find out the keys. It is also likely that Hemraj had keys and he went to the terrace.
21)- That if an outsider(s) may have committed the
crime in question after locking the door of
terrace and had gone out of the flat then the
outer most mesh door or middle mesh door
must have been found latched from outside;
Thats what the Hon court says about Bharati Mandal disposition.
22)- That the motive of commission of the crime
has been established;
No, it is not. The court should state what the motive was. If it was honor killing, then as submitted above, it was a closed room incident, with no scope of getting public unless and until wanted by any of the fours. neither Hemraj nor Arushi even if involved with consensus would have dreaming of marrying each other. If it all, it was just a physical closeness of a child with an old man. It is to be noted that no relationship whatsoever is established between two deceased by prosecution. May their soul rest in peace.
23)- That it is not possible that after commission of
the crime an outsider(s) will dress-up the crime
scene;
What is the evidence for dressing up. It is quite likely that Arushi after self gratification would have used water to wash herself and in the process wetting the bed spread. The toilet was of sprinkle type and geneally backside gets fully wet, and it is quite likely that Arushi took her bed without properly wiping herself and in the process wetting the bed sheet, giving an indication of dress up to prosecution.
24)- That golf-club no. 5 was thrown in the loft after
commission of the crime and the same was
produced after many months by the accused
Dr. Rajesh Talwar;
Impossible that the father would look for Golf stick after seeing the daughter in act with Hemraj, he would have slapped him, and in the process Hemraj pecker would have come down, he would received some blow here and there. He would not have gotten killed without struggle. This is fantastic story by prosecution.
25)- That pattern of head and neck injuries of both
the accused persons are almost similar in
nature and can be caused by golf-club and
scalpel respectively;
Parents cannot kill their daughter twice. First by golf stick and after that by scalpel.
26)- That the accused Dr. Rajesh Talwar was a
member of the Golf-Club, N.O.I.D.A. and golfclubs
were produced by him before the C.B.I.
and scalpel is used by the dentists and both
the accused are dentists by profession;
This only proves presence of such tools in their house, not their use by accused for murder.
Pl share this, if you find this as a worthy argument. This is not meant to discredit the judiciary, but to protect the liberty of the citizen. Our judiciary is very strong and magnanimous in correcting a situation which could lead to injustice.
ReplyDelete