Sessions Trial
like pack of cards. I am not going to be lured by
attractive ingenious and dexterous defence taken by
the learned counsel in as much as from the perusal
of above photographs as well as photographs
material Exhibits-ka-1, ka-2, ka-3, ka-4, ka-5 it will
reveal that in the photographs which are alleged to
have been taken in the evening of 15.05.2008 the
bed-sheet is of different colour having strips of
multiple shades while in material Exhibits-1 to 5,
multi-coloured printed bed-sheet is clearly seen
which is all together different from the bed-sheet
seen in photographs paper no. 560-ka/31, 560-
ka/37 and 560-ka/39. In addition to that in
photograph paper no. 560-ka/31, 560-ka/37 and
560-ka/39 one toy has been shown just near the
head rest while in material Exhibits-1 and 2 that toy
has been shown near the legs of Ms. Aarushi;
likewise in the bed-sheet as shown photographs
paper no. 560-ka/31, 560-ka/37 and 560-ka/39
creases are clearly visible while in the photographs
material Exhibits-1 to 5 no such creases are visible
at all. Moreover, the bed-sheet as shown in
photographs paper no. 560-ka/31, 560-ka/37 and
560-ka/39 appears to be comparatively new than
multi coloured printed bed-sheet as shown in
material Exhibits- 1 to 5 which appears to be faded
Page 168
as a result of use since long back. In photographs
paper no. 560-ka/31, 560-ka/37 and 560-ka/39 no
pillow of the set of bed-sheet has been shown while
in photograph material Exhibit-1 one additional and
small pillow of the set of the multi-coloured printed
bed-sheet has been shown. In the material
Exhibits-1 to 5 school bag has been shown near the
dead body of Ms. Aarushi while this bag is not visible
in the photographs paper no. 560-ka/31, 560-ka/37
and 560-ka/39. No blood stains are also visible in
this bag. Upon the comparison of photographs taken
by the digital camera in the evening of 15.05.2008
with the photographs material Exhibit- 1 to 5 it
clearly shows that the bed-sheet was changed and
this in all probability must have been done by the
accused. It is also possible that before going to sleep
Dr. Nupur Talwar might have changed her gown
which she was wearing at the time of taking pix
from digital camera. As stated herein before, being
mother of the child it is not possible that on seeing
her child dead she would not have hugged her.
During hugging certainly, the gown of Dr. Nupur
Talwar must have also been blood stained but no
blood was found, which clearly shows that she had
changed her gown or other night-garment, which
she was wearing in the night. So is the case with Dr.
Rajesh Talwar. P.W.-14 Dr. Rohit Kochar has stated
that when on 16.05.2008 he had gone in flat no.
L-32 then he had seen that Dr. Rajesh Talwar was in
red coloured T-Shirt and half pant and Dr. Nupur
Talwar was in white suit or gown but the clothes of
both were not stained with blood. P.W.-6 Dr. B.K.
Mohapatra has stated that in the half pant, T-shirt
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and gown blood stains were faint which may be
either that there were light blood satins or blood was
cleaned. When the blood splatters can go upto the
wall behind the head-rest of the bed then it is not
possible that there will be no blood splatters on the
toys, school bag and the book “The three mistakes
of my life” which were kept on the bed itself. Even if
the bed is used for a moment the the creases
appear in bed-sheet. It a matter of common
knowledge that if one is attacked while lying on the
bed he/she will not remain static and resist the
attack and in that process creases are bound to
occur in the bed-sheet. An outsider killer after
committing the crime will not waste his time in
dressing-up the bed-sheet, arranging toys and pillow
in proper order in the bed-sheet, covering the dead
body of Ms. Aarushi with a flannel blanket and
cleaning private parts of Ms. Aarushi as his top
priority will be to escape away immediately after
commission of the murder and thus dressing-up of
the bed-sheet and placing toys and pillow is possible
to be done by the accused persons only. Similarly,
no outsider assassin will bother to take away the
body of Hemraj to the terrace and later on drag it to
the corner of the terrace and place cooler panel over
the dead body and also a bed-sheet on the mesh
grill which was between the roofs in such a way that
nobody could be able to see the dead body of
Hemraj and thereafter will come inside the flat and
lock the terrace door from inside and then will leave
the flat. In all human probability these activities are
possible to be done by the accused and nobody else.
It is also not possible that when the victims were
Page 170
attacked they would not have screeched or yelped.
Had both the deceased been murdered by an
outsider then hearing of the screeches of victims
may have certainly awakened the accused persons
even if they could be in deep slumber in the
adjoining room and the air-conditioner of their room
was on as sound travels with more intensity in the
night. If the cooler panel has not been taken into
possession by S.I. Data Ram Naunaria and he has
not directed constable Chunni Lal Gautam to take
photographs and finger-prints of panel then it is
merely a negligence on the part of Mr. Naunaria but
it is well settled law that on account of negligence or
defective investigation of I.O. the prosecution case
cannot be thrown away or dubbed as untrue and the
accused cannot take advantage of the same as has
been held in H.N. Rishbud Vs. State of Delhi AIR
1955 SC 196 (3JJ), Karnel Singh Vs. State of
M.P. (1995) 5 SCC 518, Ram Bihari Yadav Vs.
State of Bihar (1998) 4 SCC 517, Paras Yadav
Vs. State of Bihar AIR 1999 SC 644, Amar
Singh Vs. Balwinder Singh AIR 2003 SC 1164,
Dhanaj Singh @ Shera and others Vs. State of
Punjab (2004) 3 SCC 654, Surendra Paswan Vs.
State of Jharkhand AIR 2004 SC 742, Ram Bali
Vs. State of U.P. (2004) 10 SCC 598, Zahira
Habibullah H. Shekh Vs. State of Gujarat
(2006) 3 SCC 374, Rakesh Kumar Vs. State of
Haryana (2009) 3 SCC (Cr.) 1243, Sheo
Shankar Singh Vs. State of Jharkhand 2011
Cr.L.J. 2139 (SC), Kashi Nath Mandal Vs. State
of West Bengal AIR 2012 SC 3134, Ganga
Singh Vs. State of M.P. (2013) 7 SCC 278,
Page 171
Hema Vs. State 2013 (1) ACR 670 (SC),
Sahabuddin Vs. State of Assam 2013 (80) ACC
1002 (SC). Thus, the arguments of the learned
counsel do not hold any water.
The next contention of the learned counsel for
the accused is that the allegations that private parts
of Ms. Aarushi were cleaned after her murder are
preposterous and this theory has been ingeniously
invented by P.W.-5 Dr. Sunil Kumar Dohre while
giving statement in the court that vaginal orifice of
Ms. Aarushi was prominent, vaginal canal was visible
which means that somebody had interfered
physically with her private parts either just before
the setting in of rigor mortis or during the phase of
rigor mortis but this piece of evidence cannot be
accepted because Dr. Dohre has no where
mentioned these facts in the postmortem report and
rather it was written in the postmortem examination
report that on examination of private parts- ‘no
abnormality detected’ and he has also not given
statement regarding the vaginal status to Police
Inspector Anil Samania nor to Mr. Vijay Kumar the
then S.P., C.B.I., nor to Inspector M.S. Phartyal, nor
to any member of the A.I.I.M.S committee and made
improvements only on 30.09.2009 when his 6th
statement was recorded by A.G.L. Kaul and if private
parts may have been cleaned then certainly S.I.
Bachhu Singh, who held inquest on the dead body of
Ms. Aarushi must have mentioned this fact that bedsheet
was found wet and even S.I. Dataram
Nauneria, S.P. City Mahesh Kumar Mishra and
Constable Pawan Kumar have not stated in their
testimony that the bed-sheet of Ms. Aarushi was
Page 172
having any evidence of washing and it was wet and
thus the evidence of Dr. Dohre stands belied. This
argument has also no substance. In the photograph
material Exhibit-1 some stain is visible on right-side
just beside the pelvic portion of Ms. Aarushi in the
bed-sheet. The bed-sheet was seized and sealed by
S.I. Dataram Naunaria. It was examined by P.W.-6
Dr. B.K. Mohapatra in the light of the questionnaire
annexed with the letter dated 09.04.2010 of S.P.,
C.B.I., Dehradun. In the examination report-Ka-14 it
has been mentioned that in Exhibit-1 i.e. printed
multi-coloured bed-sheet having reddish brown
stains at many places urine, semen could not be
detected and designated circular area of Exhibit-1
did not yield DNA for analysis. In the face of this
clinching and reliable scientific evidence it is proved
to the hilt that the private parts of Ms. Aarushi were
cleaned with water and that’s why in the designated
circular area of the bed-sheet neither urine nor
semen was found. If constable Pawan Kumar, S.I.
Bachhu Singh, S.I. Dataram Nauneria and S.P. (City)
Mahesh Kumar Mishra have not stated that the bedsheet
was found wet and in the inquest report S.I.
Bachhu Singh has not mentioned that the bed-sheet
of Ms. Aarushi was found wet than no importance
can be attributed to this omission. Since Inspector
Anil Samania, S.P., C.B.I., Mr. Vijay Kumar, Inspector
M.S. Phartyal have not specifically questioned Dr.
Dohre above the vaginal status of the deceased Ms.
Aarushi and therefore, he could not tell them about
the same and when Mr. Kaul recorded his statement
on 30.09.2009 and he was asked specifically to tell
about the vaginal status and then he gave
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statement regarding the vaginal status of Ms.
Aarushi. It was not expected of Dr. Dohre to tell the
other members of the expert committee about the
vaginal status of Ms. Aarushi. In view of the
discussion the arguments of the learned counsel
cannot be accepted.
The next contention of the learned counsel for
the accused is that, in fact, F.I.R. was dictated to Dr.
Rajesh Talwar at his flat by police personnel and he
had never gone to the police station Sector-20 to
lodge the F.I.R. and it has falsely been deposed by
P.W.-34 Dataram Nauneria that F.I.R. was lodged by
Dr. Rajesh Talwar at police station itself but when he
was cross-examined on this aspect it was stated by
him that his statements were recorded by C.B.I.
officers 2-3 times and he had gone through the
same and admitted them to be correct but in his
statements it has not been written that Dr. Rajesh
Talwar had lodged the complaint at the police
station itself and he cannot furnish any reason for
the same. It was further submitted that this witness
has admitted that he has not recorded the
statement of G.D. writer constable Rajpal Singh and
he had not seen Dr. Rajesh Talwar in the police
station on 16.05.2008 and he had given statement
on 24.10.2008 to the C.B.I. Inspector M.S. Phartyal
that on 16.05.2008 at around 7.00 A.M. he had
received a telephone call probably from police
control-room or from the residence of S.S.P. and
immediately thereafter received a call from M.K.
Mishra, S.P. (City) who informed him that in Flat No.
L-32, Sector-25, a lady had been murdered and he
was directed to reach there immediately and he has
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further stated that he had told the C.B.I. officers that
upon receiving information from the police station
he had immediately rushed to Flat No. L-32 but he
does not know why the C.B.I. officers had not
recorded this statement and he had not asked them
to record his statement to the effect that he had
gone to Flat No. L-32 after receiving information
from the police station; it has not come in his
knowledge that on 16.05.2008 at 06.55 A.M. Dr.
Dinesh Talwar had made a telephone call to police
control-room regarding the murder of Ms. Aarushi;
P.W.-35 M.S. Phartyal has admitted in his crossexamination
that S.I. Dataram Nauneria had not
given a statement to him that on 16.05.2008 at
around 07.10 A.M. Dr. Rajesh Talwar had lodged the
complaint at the police station itself; P.W.-29
Mahesh Kumar Mishra had also admitted in his
cross-examination that he had received an
information from city control-room at about 07.00
A.M. that at L-32, Jalvayu Vihar one girl had been
murdered and this information was given to the
police control-room by the uncle of the girl; he had
reached at L-32 at about 07.30 A.M. and till the time
he remained there at the crime scene F.I.R. was not
lodged and he had asked the accused persons to get
the F.I.R. lodged and had instructed S.I. Dataram
Nauneria that whatever the accused write he must
lodge the F.I.R. on that basis and when he had
reached at L-32 Dr. Rajesh Talwar was writing the
complaint and thus it is amply proved that Dr.
Rajesh Talwar had not gone to the police station to
lodge the F.I.R. and rather F.I.R. was dictated to him
at the flat itself and accordingly in the G.D. ExhibitPage
175
ka-77 arrival of Dr. Rajesh Talwar in the police
station has wrongly been mentioned by constable
Rajpal Singh and as such the allegation of lodging
false F.I.R. and misdirecting N.O.I.D.A. police is not
proved. This argument is too tenuous. P.W.-34 S.I.
Dataram Nauneria has stated at page no. 6 of his
cross-examination that in the morning of 16.05.2008
he was at his residence which is in the premises of
the police station and he was informed by Constable
Rajpal Singh regarding the occurrence and then
after 15-20 minutes he had reached at the crime
scene. Although he has admitted that on that date
he had not seen Dr. Rajesh Talwar in the police
station but it should be borne in mind that report
was lodged at 07.10 A.M. and at that time he was
not in the office of the police station and rather he
was at his residence and therefore in the factsituation
it is constable Rajpal Singh who would have
been the best witness to tell whether Dr. Rajesh
Talwar had come to the police station to lodge the
F.I.R. The genuineness of complaint Exhibit-ka-95
has been admitted by both the accused and
therefore it’s formal proof is not required and can be
read into evidence as held in Sadiq Vs. State 1981
Cr.L.J. 379 (Allahabad FB), Shaikh Farid
Hussain Sab Vs. State of Maharashtra 1984
Cr.L.J. 487 (Bombay FB) and Boraiah @
Shekhar Vs. State 2003 Cr.L.J. 1031
(Karnataka FB). P.W.-34 has proved the photocopy
of G.D. No. 12 dated 16.05.2008 as Exhibit-ka-77 in
which it has been shown that at 07.10 A.M. Dr.
Rajesh Talwar came to the police station and
handed over a complaint on the basis of which case
Page 176
crime number 695 of 2008 under section 302 I.P.C.
was registered against Hemraj. The scribe of G.D.
Constable Rajpal Singh has not been examined by
the prosecution. No prayer was ever made by the
accused to summon constable Rajpal in defence to
examine him to prove about the correctness of the
entry made in the said G.D. In Jafar Ali Vs. State
of U.P. 2004 (48) ACC 854, it has been held by
the Division Bench of the Hon’ble High Court of
Allahabad that entry in G.D. is made by police
official in discharge of official duties and therefore,
there is no reason to disbelieve the entry so made.
The court may presume under section 114-(e) of
Evidence Act that judicial and official acts have been
regularly performed. The legal maxim omnia
praesumuntur rite it dowee probetur in contrarium
solenniter esse acta i.e., all the acts are presumed
to have been done rightly and regularly, applies.
It is trite in law that when there is a fight
between ocular and documentary evidence, it is the
documentary evidence which will prevail and
therefore, the evidence of P.W.-29 Mahesh Kumar
Mishra that when at about 7.30 A.M. he reached at
Flat No. L-32, Dr. Rajesh Talwar was writing the
complaint and he had instructed S.I. Dataram
Nauneria to lodge the F.I.R. on that basis and till the
time he remained there F.I.R. had not been lodged is
proved to be false and this statement appears to
have been given under some misconception or loss
of memory due to passage of time. Oscar Wilde has
aptly remarked that memory is the weakest
companion of a human being. If S.I. Dataram
Nauneria had not stated before the C.B.I. Officers
Page 177
that on 16.05.2008 at about 07.10 A.M. Dr. Rajesh
Talwar had come to the police station to lodge the
F.I.R. then due to that it cannot be said that Dr.
Rajesh Talwar had not gone to the police station to
lodge the F.I.R. It has no where been suggested
before P.W.-34 that false entry in G.D. may have
been recorded by Constable Rajpal Singh. Assuming
arguendo that Dr. Rajesh Talwar had not gone to the
police station to lodge the F.I.R. even then it is
proved that he gave false information to the police
that murder of Aarushi has been committed by
Hemraj knowing that murders of Ms. Aarushi as well
as Hemraj were committed by him and his wife Dr.
Nupur Talwar. Thus the arguments on this count also
fail.
The next contention of the learned counsel for
the accused is that P.W.-29 Mahesh Kumar Mishra
has deposed that when on 17.05.2008 he had seen
the dead body of Hemraj then at that time both the
accused were not present in the flat and only Dr.
Dinesh Talwar, Dr. Durrani and some other persons
were present; Dr. Dinesh Talwar and Dr. Durrani
identified the dead body of Hemraj and after some
time Dr. Rajesh Talwar also arrived there but he
appeared grudging to identify the dead body and
when people who had assembled there identified
the dead body of Hemraj then Dr. Rajesh Talwar also
identified the dead body but this fact was not stated
before I.O. Mr. Vijay Kumar. Likewise P.W.-33 S.I.
Bachhu Singh has deposed that dead body of
Hemraj was not identified by Dr. Dinesh Talwar and
Dr. Rajesh Talwar who had reached there later;
P.W.-34 S.I. Dataram Nauneria has deposed that on
Page 178
06.06.2008 he had stated to I.O. Mr. R.S. Kuril that
on 17.05.2008 when Dr. Rajesh Talwar had reached
he had expressed his inability to recognize the dead
body of Hemraj but he cannot say how Mr. Kuril has
mentioned in his statement that on that day he had
not met Dr. Rajesh Talwar at all and I.O. Mr. Kaul has
admitted that S.I. Dataram Nauneria had stated
before Mr. Kuril that on 17.05.2008 that he had not
met Dr. Rajesh Talwar at all and thus it is proved
from the above evidence that Dr. Rajesh Talwar had
not refused to identify the dead body of Hemraj.
I don’t find any force in this argument. It is
proved from evidence on record that terrace door
was locked from inside by the accused persons after
taking away the body of Hemraj in the terrace and
as such they were knowing well that dead body of
Hemraj is lying in the terrace. P.W.-29 Mahesh
Kumar Mishra has stated at page no.2 of his
examination-in-chief that Dr. Rajesh Talwar was
asked by him to provide the key of terrace door but
he had stated that it is not traceable. He has also
stated that when he went to the terrace he had
found Dr. Dinesh Talwar, Dr. Durrani and some other
persons there and they had told him that the dead
body was of Hemraj and after some time Dr. Rajesh
Talwar also reached there and when he enquired
from him about the dead body then he seemed
reluctant to identify the dead body and when other
persons present there stated that the dead body
was of Hemraj then Dr. Rajesh Talwar also identified
the dead body. P.W.-33 S.I. Bachhu Singh has also
stated that Dr. Dinesh Talwar had declined to
identify the dead body and after some time Dr.
Page 179
Rajesh Talwar has also came there and he too did
not identify the dead body but thereafter Dr. Rajesh
Talwar stated that the dead body may be of Hemraj.
P.W.-34 S.I. Dataram Nauneria has also stated that
when he enquired from Dr. Dinesh Talwar about the
dead body then he feigned his ignorance and
meanwhile Dr. Rajesh Talwar also came there and
he was asked to identify the dead body but he also
declined to identify it. He has also stated that Ram
Prasad, Rudra Lal had also come there and they
identified the dead body to be of Hemraj, the
servant of Dr. Rajesh Talwar. He has also stated that
a memo Exhibit-ka-82 regarding breaking open of
the lock was prepared but Dr. Dinesh Talwar had
refused to sign in this memo. From the perusal of
Exhibit-ka-82 it will transpire that a note was
appended to that effect below the memo that Dr.
Dinesh Talwar refused to put his signatures. If all the
above witnesses had not stated before the
investigating officer that Dr. Rajesh Talwar had
declined to identify the dead body of Hemraj then
the omission about minute details will not create
any dent in the case of the prosecution. In a
plethora of cases which have been alluded to supra
in the preceding paragraphs and in State of
Punjab Vs. Wassan Singh AIR 1981 SC 697 and
State of Andhra Pradesh Vs. Kanda Gopaludu
2005 (53) ACC 772 (SC) it has been held that
human memory is apt to blur with the passage of
time and hence minor omissions regarding collateral
and subsidiary facts which do not affect the
substratum of the case will not affect the credibility
of the witnesses. As already stated it depends
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whether the investigating officer had specifically
asked a particular question from the witness and if
not asked then it is not necessary that the witness
will tell the investigating officer on his own. The
statements given to the investigating officer are
supposed to brief and detailed statements are
always given in the court. P.W.-7 K.K. Gautam has
also deposed that the when the police had enquired
from Dr. Dinesh Talwar about the identity of the
dead body then he had also feigned his ignorance.
Thus, the arguments of the learned counsel are
bereft of reasons.
The next submission of the learned counsel for
the accused is that from the evidence adduced by
the prosecution it is not proved that the accused
persons caused destruction of evidence of the
commission of the twin murders in as much as the
floor of Aarushi was cleaned on 16.05.2008 with the
permission of the police personnel present there;
the outer-most grill door was unauthorized and
therefore got removed after many months of the
occurrence and there was no prohibitory orders
restraining the accused from removing the grill door
and the apartment was got painted a year and half
after the occurrence. It was further submitted that
P.W.-15 Umesh Sharma has deposed that he had
cleaned the floor of Aarushi’s room after seeking
permission from the police officers and at that time
both the accused were away at crematorium to
perform the last rites of Aarushi; D.W.-5 Vikas Sethi
has also deposed that he had sought permission
from the police officers and one lady police official
for cleaning which they had accorded; P.W.-12
Page 181
Punish Rai Tandon has stated that the outer-most
grill door was not a part of the house originally and
Dr. Rajesh Talwar had got it separately installed
later and on 16.05.2008 cleaning was done in the
presence of police officials; P.W.-29 Mahesh Kumar
Mishra has stated that on the pillow there was a lot
of blood which had seeped down onto the floor and
besides that area blood was not found anywhere in
the room of Aarushi including her loo; P.W.-39 A.G.L.
Kaul has admitted that statement of S.I. Sunita Rana
was recorded by assisting investigating officer
Mukesh Sharma and she has stated to him that 2-3
ladies along with one male person were cleaning the
drawing room and thus destruction of evidence of
the commission of the murders is not proved at all.
These arguments are also liable to be trashed. No
permission was sought by the accused from the
C.B.I. before removing the outer-most grill door and
painting of partition wall knowing it well that
investigation is going on and thus vital piece of
evidence was destroyed. P.W.-15 and D.W.-5 both
are highly interested and partisan witnesses being
paid employees of the accused persons and
therefore their evidence given on the aspect of
cleaning of the floor with the permission of the
police cannot be believed. D.W.-5 has been
convicted under sections 63 and 68 of Copy Right
Act by A.C.M.M., Rohini Courts, New Delhi. S.I. Sunita
Rana has not been produced by the prosecution and
therefore she should have been got examined as
defence witness but that was not done despite
opportunity given to the accused to file list of
witnesses containing the names of the witnesses
Page 182
which are proposed to be examined in defence but
her name was not included in the list of witnesses
and therefore, the statement given by Sunita Rana
under section 161 Cr.P.C. to assisting investigating
officer Mukesh Sharma, being not substantive piece
of evidence cannot be looked into as the statement
under section 161 Cr.P.C. can be used for the
purpose of contradictions only. From the oral and
documentary evidence it is proved that blood
splatters were found on the wall behind the headrest
of the bed as well as on the frontal side of the
door of Aarushi’s room. The blood splatters are
clearly visible in the photograph material Exhibit-4
and photograph nos. 29, 31, 32, 33, 34, 35 and 36 of
D-98. P.W.-1 constable Chunni Lal Gautam has
stated on oath that he had seen blood splatters on
the wall behind the back of the Ms. Aarushi’s bed.
P.W.-29 Mahesh Kumar Mishra has also stated in his
examination-in-chief that there were some toys kept
on the bed but without blood stains and blood
splatters were in the wall behind the head-rest of
Ms. Aarushi’s bed as well as on the frontal side of
the door of Ms. Aarushi’s room. S.I. Bachhu Singh
and S.I. Dataram Nauneria have also stated that
there were blood splatters behind the wall of Ms.
Aarushi’s bed. Those ladies who had instructed
Umesh Sharma and Vikas Sethi to clean the floor
have neither been named by Unesh Sharma and
Vikas Sethi nor have they been produced in the
court. Likewise, P.W.-15 and D.W.-5 have not
disclosed the names of the police officers who had
permitted to clean the floor. Obviously, these two
witnesses could not clean the floor without the tacit
Page 183
approval of the accused persons. P.W.-23 Kusum has
deposed on 12.11.2012 that about four years ago
when in the summer season she was going to her
residence situated in Sadarpur Village then she had
found a mobile set in a park and after 6-7 days of
this recovery,her brother Rambhool came to her
residence and then her son had given this mobile
set to Rambhool and after aboubt one and half year
Delhi Police came in Dashahara Village and arrested
her brother Rambhool. She and her husband were
also arrested by the police and mobile set was
seized and after interrogation they were released.
P.W.-32 Richhpal Singh had stated that on
13.09.2009 he has taken one cell-phone with SIM
and G.D. No. 7 dated 13.09.2009 from Mr.
Chandram Head Constable, Crime Branch, Delhi
Police, Sun Light Colony, New Delhi and seizure
memo Exhibit-ka-63 was prepared by his companion
S.I. Yatish Chandra. He has further stated that
number of SIM was 9639029306 and I.M.E.I. no. of
this mobile set was 354568012881114. P.W.-39 has
stated that Dr. Rajesh Talwar had told him that the
book ‘Three mistakes of my life’ was in the bed of
Ms. Aarushi at the time of her murder and cardboard
box of Ms. Aarushi’s mobile was with him and
this book and card-board box were handed over to
inspector Arvind Jaitley who has prepared
production-cum-seizure memo Exhibit-ka-97. In
Exhibit-ka-97 it has been written that in the cardboard
box I.M.E.I. No. 354568012881114 of Nokia
N-72 mobile was found printed and it was stated by
Dr. Rajesh Talwar that this was the packaging of
mobile phone of here daughter and the same
Page 184
mobile-set was found by Kusum. P.W.-39 has
deposed that the cell-phone whose I.M.E.I. no. was
printed in the card-board box was used by Ms.
Aarushi and accordingly it is proved that mobile-set
of Ms. Aarushi was thrown in the park to conceal and
destroy the evidence. He has also stated at page no.
9 of his cross-examination that mobile-set of Hemraj
was found active in Punjab circle as was informed to
him by TATA Telecom. D.W.-4 has admitted in his
cross-examination that in the shop of his father
mobile-sets are being sold and mobile-set of Ms.
Aarushi was pre-paid and used to get it recharged at
the instance of Dr. Rajesh Talwar. He has also
admitted that his father’s sister lives in Punjab. A
specific suggestion has been thrown before this
witness that data of mobiles of Ms. Aarushi and
Hemraj were deleted by him and mobile-set of
Hemraj must have been got sent to punjab. In Kodali
Puran Chandra Rao Vs. P.P. Andhra Pradesh AIR
1975 SC 1925 (3JJ), it was held that the following
ingredients are to be proved by prosecution:-That an
offence has been committed;
1) That the accused knew or had reason to believe
the commission of such offence;
2) That with such knowledge or belief he
a) Caused any evidence of the commission of
that offence to disappear, or
b) Gave any information respecting that
offence which he then knew or believed to
be false;
3) That he did so as aforesaid, with the intention of
screening the offender from legal punishment.
Page 185
The same view has been taken in Palvinder
Kaur Vs. State of Punjab AIR 1952 SC 354,
Wattan Singh Vs. State of Punjab 2004 (48)
ACC 677 and Budhan Singh Vs. State of Bihar
2006 (55) ACC 550.
From the evidence it is proved that the
accused persons disposed off/destroyed the scalpel,
blood stained clothes worn by them during the
commission of the offence, dressed-up the scene of
crime, cleaned private parts of Ms. Aarushi, covered
the dead body of Ms. Aarushi with a flannel blanket
and that of Hemraj with a cooler panel, placed a
bed-sheet on grill dividing two roofs, locked the door
of terrace, concealed or destroyed the key of the
terrace door which has not been found till yet, wiped
the blood stains on stairs, secretly hid the murder
weapon- one golf stick in the loft, cleaned the two
golf sticks, concealed and threw away the mobile
sets of both the deceased, knowing well that
murders of both the deceased have been
committed. All these things were done by the
accused with the intention to screen themselves
from legal punishment. As such charge under
section 201 I.P.C. is fully proved against the accused
persons.
The next contention of the learned counsel for
the accused is that the allegation that key to the
lock of terrace door was not made available on
16.05.2008 and it was concealed by the accused is
not borne out from the evidence on record because
the key along with bunch of keys always used to be
in the possession of Hemraj and therefore question
of producing the key by the accused persons to the
Page 186
police does not arise and as such their conduct
cannot be dubbed as evasive. This argument also
has no legs to stand. P.W.-13 Dr. Rajiv Kumar
Varshney has stated at page no. 3 of his crossexamination
that in his presence the key of terrace
door was asked for but it was not traceable. P.W.-14
Dr. Rohit Kochar has also deposed that a policeman
had asked Dr. Rajesh Talwar to make available the
key of terrace door but Dr. Talwar went inside the
flat and did not come out for considerable time.
P.W.-29 has also stated at page no. 2 of his
examination-in-chief that terrace door was found
locked and he had asked Dr. Rajesh Talwar to
provide the key and then Dr. Talwar had told him
that the key is not traceable and then he had
directed A.S.P./C.O. Mr. Akhilesh and S.H.O. that the
lock will not be broken and in case the key is not
available then it will be better to take out the lock
along with the latch. P.W.-33 S.I. Bachhu Singh has
also stated that on 17.05.2008 S.H.O. Mr. Nauneria
had asked Dr. Dinesh Talwar to open the lock of the
terrace door but he had stated that the key is not
traceable and thereafter lock was got broken by Dr.
Dinesh Talwar. P.W.-34 S.I. Dataram Nauneria has
also stated that he tried to go to the roof through
the stairs but the terrace door was found locked and
he asked Dr. Rajesh Talwar to make available the
key of the lock but Dr. Rajesh Talwar responded that
the key is not available and he should not waste his
time in breaking open the lock otherwise Hemraj will
flee away and thus in view of this evidence the
argument of the learned counsel is found to be
damp squib.
Page 187
The penultimate submission of the learned
counsel for the accused is that Dr. Dohre has
mentioned in his report that the time of the death of
Ms. Aarushi is 1 to 11/2 days from the time of
conducting the postmortem examination but in the
court he has stated that time of death was 12-18
hours from the time of conducting postmortem
examination and one day is of only 12 hours from
which it is proved that Dr. Dohre lacks expertise and
his evidence cannot be accepted. It was further
submitted that D.W.-4 Dr. R.K. Sharma has clearly
stated that the death of Ms. Aarushi could have
been caused about 8-10 hours from the time of
conducting the postmortem examination because in
summer months the rigor mortis starts very quickly
and after a period of four hours from consumption of
food, semi-digested food can be seen and in next
two hours it completely gets digested and since in
the stomach of Ms. Aarushi semi-digest food was
found and as such her death had taken place 4-6
hours after having consume the dinner and
therefore the entire evidence of Dr. Dohre is found
to be unbelievable and fraught with suspicion. I
agree with this contention to the extent that Dr.
Dohre has incorrectly mentioned in his report that
the time of death of Ms. Aarushi was 1 to 11/2 days
from the time of conducting postmortem
examination and one day is of only 12 hours. This
court fails to understand as to why this gentleman
has stated that on day is of only 12 hours. However,
the remaining part of his evidence cannot be
brushed aside on that ground. In Shakila Abdul
Gaffar Khan (Smt.) Vs. Vasant Raghunath
Page 188
Dhoble and others (2003) 7 SCC 749, it has
been held that falsity of a particular material would
not be vitiate the entire testimony of the witness
concerned. In such a case it is the duty of the court
to separate grain from chaff and only when that is
not feasible, the court can discard the evidence in
toto. P.W.-5 Dr. Dohre has explained the reasons as
to how he had written in the postmortem
examination report that death of Ms. Aarushi was 1
to 11/2 days from the time of conducting postmortem
examination. When he was questioned by the court
itself as to how this time was written by him then he
stated that the deceased had died about 12 O’Clock
in the night and he had conducted postmortem
examination at about 12 o’clock in the noon and
when he was going to complete the postmortem
examination report then media persons came there
and therefore the time of Ms. Aarushi’s death as 1 to
1
1/2 days was written down in haste. It is worthwhile
to mention here that both the accused have not
taken the plea that death of Ms. Aarushi did not take
place in the mid-night and therefore if any blunder
has been committed by Dr. Dohre while recording
the time of death of Ms. Aarushi in the postmortem
examination report then no benefit can be derived
by the accused. It is also important to mention here
that exact time of death cannot be stated with
mathematical accuracy by any doctor conducting
postmortem examination and there can be variation
of 3 to 4 hours on either side of death. In Jagmohan
and others Vs. State of U.P. 2005 (53) ACC 307
(DB), it was held that stomach contents of the
deceased not makes the prosecution case doubtful.
Page 189
State of U.P. Vs. Sarva Jeet & others 2005 (2)
Allahabad Criminal Rulings 1480 (DB), it has
been held that stomach contents cannot be
determinative of time of death. In that case the law
as exposited in Ram Bali Vs. State of U.P. 2004
(49) ACC 453 (SC), Anil Sharma Vs. State of
Jharkhand AIR 2004 SC 2294, P.P. Venkaih Vs.
State of A.P. AIR 1985 SC 1715 and Nihal
Singh & others Vs. State of Punjab AIR 1965
SC 26 has been followed. In Ram Bali’s case, it was
held that the medical evidence is not yet so perfect
as to be able to tell the precise time of death of the
deceased in a computerised mathematical manner
on the basis of stomach contents. The time taken
normally for digesting food, would also depend upon
the quality and quantity of food as well, besides
others. The time also varies according to digestive
capacity. The process of digestion is not uniform and
varies from individual to individual and the health of
a person at a particular time and so many other
varying factors.
The terminus ad quem of the learned counsel
for the accused is that on cumulative appreciation of
the evidence as brought on record the prosecution
has miserably failed to prove the charges against
the accused persons and rather from the evidence it
is proved that the murders were committed by some
other person(s) who had visited Hemraj in the
intervening night of 15/16.05.2008 which is clearly
indicated by the blood found on Sula wine bottle,
Kingfisher beer bottle and Sprite plastic bottle
seized from the room of Hemraj and the chain of
circumstances has not been concatenated and
Page 190
hence accused deserve to be acquitted of the
trumped up charges.
I find myself completely in disagreement with
the said contention of the learned counsel for the
accused. Of course, there is no direct evidence in
this case but as discussed above it is clear that the
prosecution has placed a clinching wealth of
circumstances from which the guilt of both the
accused has been made out to the extent human
instruments can apprehend. Recondite possibility of
alternative hypothesis as put forward by the
accused cannot be accepted. In Khem Karan Vs.
State of U.P. AIR 1974 SC 1567 (3JJ) it has been
held that neither mere possibilities nor remote
possibilities nor mere doubts which are not
reasonable can, without danger to the
administration of justice, be the foundation of the
acquittal of an accused person, if there is otherwise
fairly credible testimony. From the evidence as
tendered by the prosecution in form of oral and
documentary evidence this court reaches to the
irresistible and impeccable conclusion that only the
accused persons are responsible for committing this
ghastly crime as the following circumstances
unerringly point towards the hypothesis of guilt of
the accused-
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;
Page 191
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;
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;
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;
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
Page 192
lock of Ms. Aarushi’s room was opened and by
whom;
6)- That the internet remained active in the night
of the gory incident suggesting that at least
one of the accused remained 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.;
8)- That there was no disruption in the supply of
electricity in that night;
9)- That no person was seen loitering near the
flats in suspicious circumstances in that night;
10)- That there is no evidence of forcible entry of
any outsider(s) in the flat in the night of
occurrence;
11)- That there is no evidence of any larcenous act
in the flat;
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;
13)- That the house maid Bharti Mandal has no
where stated that when she came inside the
flat both the accused were found weeping;
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
Page 193
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;
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;
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;
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;
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;
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;
Page 194
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;
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;
22)- That the motive of commission of the crime
has been established;
23)- That it is not possible that after commission of
the crime an outsider(s) will dress-up the crime
scene;
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;
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;
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.
Page 195
and scalpel is used by the dentists and both
the accused are dentists by profession;
The manner in which the murders were
committed is not the handiwork of single accused
and rather the murders were committed and
evidence destroyed by both the accused in
furtherance of their common intention which is
apparent from the facts and circumstances as
discussed above. In Barendra Kumar Ghosh Vs.
King Emperor AIR 1925 PC 1, it was observed
that in crime as well as in life, he also serves who
merely stands and waits. In Rishi Dev Pandey Vs.
State of U.P. AIR 1955 SC 331 (3JJ), it was held
that it is not necessary to adduce direct evidence of
the common intention. Indeed, in many cases it may
be impossible to do so. The common intention may
be inferred from surrounding circumstances and
conduct of the parties. In Laxman Vs. State of
Maharashtra AIR 1974 SC 1803 (3JJ), it has been
held that intention to kill can be inferred from the
number and nature of the injuries caused to the
deceased. In Harshad Singh Pahelwan Singh
Thakore Vs. State of Gujarat (1976) 4 SCC 640,
it was observed that conjoint complicity is the
inevitable inference when a gory group animated by
lethal intent accomplish their purpose cumulatively.
Section 34 I.P.C. fixing constructive liability
conclusively silences such a refined plea of
extrication. Lord Sumner’s Classic Legal Short Hand
for constructive criminal liability, expressed in the
Miltonic Verse “they also serve who only stand
and wait” a fortiori embraces cases of common
intent instantly formed, triggering a plurality of
Page 196
persons into an adventure in criminality, some
hitting, some missing, some splitting hostile heads,
some spitting drops of blood. Guilt goes with
community of intent coupled with participatory
presence or operation. No finer juristic niceties can
be pressed into service to nullify or jettison the plain
punitive purpose of the penal code. In Krishna &
others Vs. State (2003) 7 SCC 56, it has been
held that acts of all accused need not be the same
or identically similar. They must be actuated by one
and the same common intention. The reason why all
are deemed guilty in such cases is that the presence
of accomplice gives encouragement, support and
protection to the person actually committing the act.
The provision embodies the common sense principle
that if two or more persons intentionally do a thing
jointly, it is just the same as if each of them had
done it individually. In Surendra Chauhan Vs.
State of M.P. (2000) 4 SCC 110, it has been held
that to apply section 34, apart from the fact that
there should be two or more accused, two factors
must be established–(i)common intention and (ii)
participation of the accused in the commission of an
offence. If a common intention is proved but no
overt act is attributed to the individual accused
section 34 will be attracted as essentially it involves
a vicarious liability but if the participation of the
accused in the crime is proved and a common
intention is absent, section 34 cannot be invoked.
Under section 34 a person must be physically
present at the actual commission of the crime for
the purpose of facilitating or promoting an offence.
Such presence of those who in one way or the other
Page 197
facilitate the execution of common design is itself
tantamount to actual participation in the criminal
act. No direct evidence of common intention is
necessary. For the purpose of common intention
even the participation in commission of offence
need not be proved in all cases. The common
intention can develop even during the course of an
occurrence. In Janak Singh Vs. State of U.P.
2004 Cr.L.J. 2533 (SC), it has been held that
section 34 I.P.C. is applicable even if no injury is
caused by a particular accused. In Lallan Rai Vs.
State of Bihar (2003) 1 SCC 268 relying upon the
dictum laid down in Barendra Kumar Ghosh Vs.
King Emperor AIR 1925 PC 1 and Mohan Singh
Vs. State of Punjab AIR 1963 SC 174, it was held
that essence of section 34 is simultaneous
consensus of the mind of persons participating in
the criminal action to bring about a particular result.
It has been stated that such consensus can be
developed on the spot but in any case, such a
consensus must be present in the commission of the
crime itself. In that case the law as laid down in
Ashok Kumar Vs. State of Punjab AIR 1977 SC
109 and Mahboob Shah Vs. Emperor AIR 1945
PC 118 was followed. In Harbans Kaur & others
Vs. State of Haryana 2005 (2) SCJ-542: (2005)
9 SCC 195, it has been held that if two or more
persons intentionally do an act jointly position of law
is just the same as if each of them has done it
individually by himself. In Shree Kantiah Ramayya
Munipalli Vs. State of Bombay AIR 1955 SC
287, Tukaram Ganpat Pandare Vs. State of
Maharashtra AIR 1974 SC 514, Surendra
Page 198
Chandran Vs. State of M.P. 2000 SCC (Crl.)
772, Suresh and others Vs. State of U.P. 2001
SCC (Crl.) 601, Raju Pandurang Mahale Vs.
State of Maharashtra (2004) 2 ACE 341, Bishna
Vs. State of West Bengal (2005) 12 SCC 657,
Surinder Singh @ Chhinda Vs. State of Punjab
2006 (3) ACR 2745 (SC), it was held that for
application of section 34 common intention no overt
act of the accused is necessary. In Balwant Singh
Vs. State of Punjab (2009) 2 SCC (Crl.) 204, it
was observed that when many persons go together
armed with deadly weapons and fatal injuries are
caused to the deceased, all of them are equally
liable in view of section 34 I.P.C. In Hari Ram Vs.
State of U.P. 2004 (3) Allahabad Criminal
Rulings 2061 (SC) and Anil Sharma Vs. State of
Jharkhand 2004 (3) Allahabad Criminal Rulings
2295 (SC), Amit Singh Bhikam Singh Thakur
Vs. State of Maharashtra (2007) 2 SCC 310 and
Chaman Vs. State of Uttaranchal AIR 2009 SC
1036, it has been held that section 34 I.P.C. is
applicable even if no injury has been caused by the
particular accused himself. For applying section 34
I.P.C. it is not necessary to show some overt act on
the part of the accused. In these cases the law as
laid down in Willie (William) Slaney Vs. State of
M.P. AIR 1956 SC 116, Dhanna Vs. State of
M.P. AIR 1996 SC 2478 and Ch. Pulla Reddy Vs.
State of Andhra Pradesh AIR 1993 SC 1899
was relied on. In Param Jit Singh @ Mithu
Singh Vs. State of Punjab 2008 (1) ACR 1082
(SC) and Sewa Ram & others Vs. State of U.P.
2008 SCCrR 619, it was again held that when
Page 199
several wounds were found on the body of the
deceased and there is no evidence as to which
injury was caused by which accused, section 34
I.P.C. is applicable even if no injury has been caused
by the particular accused. It was further held that for
applying section 34 I.P.C. it is not necessary to show
some overt act by the accused. As it originally stood
section 34 was in the following terms:-
“When a criminal act is done by several
persons, each of such persons is liable for that act in
the same manner as if the act was done by him
alone.” In 1870, it was amended by insertion of the
words- “in furtherance of the common intention of
all”, after the word ‘persons’ and before the word
‘each’, so as to make the object of section 34 clear”.
This position was noted in Mahboob Shah Vs.
Emperor AIR 1945 PC 118. In Mohan Singh Vs.
State of Punjab AIR 1963 SC 174 and Ram Dev
Kahar Vs. State of Bihar 2009 (1) JIC 740 (SC),
it was observed that prosecution is not required
to adduce direct evidence as regards formation
of common intention. It must be inferred from
surrounding circumstances. When a common
intention is proved each of the persons showing the
common intention is constructively liable for the
criminal act done by one of them.
In Rohtas Vs. State of Rajasthan (2006) 12
SCC 64, it has been held that common intention to
commit a crime can be gathered from the totality of
the circumstances. In Imtiaz Vs. State of U.P.
2007 (2) Crimes 159 (SC), it has been held that
common intention may develop on the spot among
the accused and a pre-concert in sense of distinct
Page 200
previous plan is not necessary to attract section 34
I.P.C. In that case the law as enunciated in State of
U.P. Vs. Iftikhar Khan & others (1973) 1 SCC
512 was followed. In Ram Tahal Vs. State of U.P.
(1972) 1 SCC 136 and State of Rajasthan Vs.
Shobha Ram 2013 (81) ACC 466 (SC), it was
held that a state of mind of an accused can be
inferred objectively from his conduct displayed in
the course of commission of crime and also from
prior and subsequent attendant circumstances. The
same principle of law has been laid down in Rama
Swamy Ayyangar and others Vs. State of T.N.
(1976) 3 SCC 779, Nadodi Jaya Raman & others
Vs. State of T.N. (1992) 3 SCC 161, Suresh Vs.
State of U.P. 2001 (42) ACC 770 (SC), Ramesh
Singh Vs. State of A.P. (2004) 11 SCC 305 and
Sarvanan and others Vs. State of Pondicherry
(2004) 13 SCC 238. In Hari Ram Vs. State of
U.P. (2004) 8 SCC 146, it was observed that
existence of direct proof of common intention is
seldom available and therefore, such intention can
only be inferred from the circumstances appearing
from the proved facts of the case and the proved
circumstances. In Dharni Dhar Vs. State of U.P.
(2010) 7 SCC 759, it has been held that it is not
mandatory for the prosecution to bring direct
evidence of common intention on record. It is also
not necessary for the prosecution to establish that
there was pre-meeting of minds and planning before
crime was committed. Section 34 involves vicarious
liability and therefore, if intention is proved but no
overt act is committed, the section can still be
invoked. Recently in Goudappa and others v
Page 201
State of Karnataka (2013) 3 SCC 675, it has
been held that ordinarily every man is responsible
criminally only for a criminal act done by him. No
man can be held responsible for an independent act
and wrong committed by other. However, Section 34
makes an exception to this principle. It lays a
principle of joint liability in doing of a criminal act.
Essence of that liability is to be found in existence of
common intention, animating accused leading to
doing of a criminal act in furtherance of such
intention. It deals with doing of separate acts,
similar or adverse by several persons, if all are done
in furtherance of common intention. In such
situation each person is liable for the result of that,
as if he had done that act himself. Common
intention is to be gathered from the manner in which
the crime has been committed, conduct of accused
soon before and after occurrence, the determination
and concern with which crime was committed,
weapon carried by the accused and from nature of
injury caused by one or some of them. Therefore, for
arriving at a conclusion whether the accused had
the common intention to commit an offence of which
they could be convicted, the totality of the
circumstances must be taken into consideration.
Under section 313 Cr.P.C. both the accused
have denied incriminating circumstances appearing
against them. In Joseph Vs. State of Kerala AIR
2000 SC 1608 (3JJ), Vasa Chandra Shekhar Rao
Vs. Ponna Satyanarayana AIR 2000 SC 2138,
Geetha Vs. State of Karnataka AIR 2000 SC
3475 and Aftab Ahmad Ansari Vs. State of
Uttaranchal (2010) 2 SCC 583, it has been held
Page 202
that blunt and outright denial of everyone and all
incriminating circumstances by the accused
provides missing links to connect him with death
and the cause for death of the victim. In Santosh
Kumar Singh Vs. State through CBI (2010) 9
SCC 747 (Priyadarshini Mattoo’s case), it has
again been held that if in case of circumstantial
evidence false plea is taken by the accused then it
will be another link in the chain of circumstances.
In Sahadevan @ Sagadevan Vs. State
2003 SCC (Crl.) 382, it has been held that false
statements made by the accused to prosecution
witness could be taken as a circumstance against
the accused.
In Anthony D’souza and others Vs. State
of Karnataka 2003 (46) ACC 318, it has been
held by a Bench of Hon’ble three Judges that false
answers to the questions in the statement under
section 313 Cr.P.C. could be treated as missing link
in the chain. In that case, the law as propounded in
Swapna Patra Vs. State of West Bengal
(1999)9 SCC 242, State of Maharashtra Vs.
Suresh 2000 (40) ACC 224 (SC) and Kuldeep
Singh Vs. State of Rajasthan 2000 (41) ACC 48
(SC-3JJ) has been followed. In Surendra Chauhan
Vs. State of M.P. (2000) 4 SCC 110 and Rajesh
Govind Jagesha Vs. State of Maharashtra
(1999) 8 SCC 428, it has been held that when
explanation of the accused under section 313 Cr.P.C.
is inconsistent with the conduct and appears to be
palpably false, it cannot be accepted. In Pudhu
Raja Vs. State 2012 (79) ACC 642 (SC), it has
been held that it is obligatory on part of accused to
Page 203
furnish explanation in his examination under
section 313 Cr.P.C. Such explanation to be taken
note of by the court to decide whether chain of
circumstances is complete or not.
In Munish Mubar Vs. State of Haryana
(2012) 10 SCC 464, it has been held that it is
obligatory on the part of the accused while being
examined under section 313 Cr.P.C. to furnish some
explanation with respect to incriminating
circumstances associated with him. Court must take
note of such explanation even in a case of
circumstantial evidence so as to decide whether
chain of circumstances is complete.
In Dr. Sunil Clifford Daniel Vs. State of
Punjab 2012 Cr.L.J. 4657 (SC) and Neel Kumar
@ Anil Kumar Vs. State of Haryana 2012 (2)
ACR 1744 (SC), it has again been held that failure
of accused to explain inculpating circumstances
appearing against him or giving false answer in
examination under section 313 Cr.P.C. provides
missing link in chain of circumstances.
In Munna Kumar Upadhyaya @ Munna
Upadhayaya Vs. State of A.P. AIR 2012 SC
2470, Jagroop Singh Vs. State of Punjab AIR
2012 SC 2600, Anju Chaudhary Vs. State of
U.P. (2013) 6 SCC 384 and in Hari Vadan Babu
Bhai Patel Vs. State of Gujarat (2013) 7 SCC
45, it has been held that failure to offer appropriate
explanation or a false answer can be counted as
providing missing link for building chain of
circumstances.
Page 204
In Vishnu Prasad Sinha Vs. State of Assam
2007 Cr.L.J. 1145 (SC), N.V. Subbarao Vs.
State 2013 (1) SCCrR 10, it has been held that
statement under section 313 Cr.P.C. can be relevant
consideration for the courts to examine particularly
when the prosecution has been able to establish the
chain of evidence.
Now is the time to say omega in this case. To
perorate, it is proved beyond reasonable doubt that
the accused are the perpetrators of the crime in
question. The parents are the best protectors of
their own children- that is the order of human nature
but there have been freaks in the history of mankind
when the father and mother became the killer of
their own progeny. They have extirpated their own
daughter who had hardly seen 14 summers of her
life and the servant without compunction from
terrestrial terrain in breach of Commandment ‘Thou
shall not kill’ and injunction of Holy Quran- “Take
not life, which God has made sacred”. They are
also found guilty of secreting and obliterating the
evidence of the commission of the murders to
screen themselves from legal punishment. In
addition to that Dr. Rajesh Talwar is also found
guilty of furnishing false information to the police
regarding the murder of his daughter by Hemraj.
^ /keksZ j{k~fr jf{kr% * i.e. if we protect “Dharma”,
Dharma will protect us. If we protect “Law”, law will
protect us. Both the accused have flouted the
ferocious penal law of the land and therefore, liable
to be convicted under sections 302 r/w 34, 201 r/w
34 I.P.C. In addition to that Dr. Rajesh Talwar is also
liable to be convicted under section 203 I.P.C. They
Page 205
are on bail. Their bail is cancelled and sureties are discharged. Let both the accused be taken into custody and sent to jail. File be put upon 26.11.2013 for hearing on sentence. The accused shall be produced in the court on the next date.
Dated:
(S.Lal)
Addl. Sessions Judge/
Special Judge Anti-Corruption,
(C.B.I.), Ghaziabad.
Judgment signed, dated and pronounced in the
open court today.
Dated:
(S.Lal)
Addl. Sessions Judge/
Special Judge Anti-Corruption,
(C.B.I.), Ghaziabad.
26.11.2013
File put up today. Both the accused have been
produced in court from jail. Heard the learned
counsel for the accused and the learned Senior
Public Prosecutor on quantum of sentence and
perused the records. It has most commiseratingly
been submitted by the learned counsel for the
accused that in view of the findings given in respect
of grave and sudden provocation, destruction of
evidence and furnishing false information to the
police the case does not fall under the category of
‘rarest of rare case’ and therefore, lenity may be
shown while awarding the punishment. Per contra it
was submitted by the learned Senior Public
Prosecutor that the manner in which the accused
committed the murder calls for extreme penalty. I
have considered the submissions of both the sides.
In State of Karnataka Vs. Krishnappa (2000) 4
SCC 75 (3JJ) it was held “The courts are expected to
properly operate the sentencing system and to
impose such sentences for a proved offence, which
Page 206
may serve as a deterrent for the commission of like offences by others.”
Thomas Reed Powell once said, “Judges have
preferences for social policies as you and I. They
form their judgment after the varying fashions in
which you and I form ours. They have hands, organs,
dimensions, senses, affections, passions. They are
warmed by the same winter and summer and by the
same ideas as a layman is.” Justice John Clarke has
also stated, “I have never known any judges …..
who discharged their judicial duties in an
atmosphere of pure, unadulterated reason. Alas! We
are all the common growth of the Mother-Earth even
those of us who wear the long robes.”
In Surjit Singh Vs. Nahara Ram and others
(2004)6 SCC 513=AIR 2004 SC 4122 it was held
“The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons
and property of the people is an essential function of
the State. It could be achieved through
instrumentality of criminal law. Undoubtedly there is
a cross-cultural conflict where living law must find
answer to new challenges and the courts are
required to mould the sentencing system to meet
the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection
of society and stamping out criminal proclivity must
be the object of law which must be achieved by
imposing appropriate sentence. Therefore, laws as a
corner stone of the edifice of ‘order’ should meet the
challenges confronting the society. In operating the
sentencing system, law should adopt the corrective
machinery or the deterrence based on factual
matrix. Therefore, undue sympathy to impose
inadequate sentence would do more harm to the
justice system to undermine the public system in
the efficacy of law and society could not long endure
under such serious threats. It is, therefore, the duty
of every court to award proper sentence having
regard to the nature of the offence and the manner
in which it was executed or committed, etc.”
In State of M.P. Vs. Saleem @ Chamaru and
others 2005 (5) SCJ 635 it was held that undue
sympathy to impose inadequate sentence would do
more harm to the judicial system to undermine
public confidence. It is the duty of every court to
award proper sentence. Imposition of sentence
without considering its effect on the social order will
be a futile exercise. If adequate sentence is not
awarded court will be failing in its duty.
In C. Muniappan & others Vs. State of T.N.
(2010) 9 SCC 567 it was held that death sentence
can be given in rarest of rarest case if the collective
conscience of a community is so shocked that death
penalty is the only alternative. The rarest of the rare
case comes when a convict would be a menace and
threat to the harmonious and peaceful existence of
the society.
In State of Rajasthan Vs. Vinod Kumar (2012) 6
SCC 770 it has been observed that punishment
should always be proportionate/ commensurate to
the gravity of the offence. Religion, race, caste,
economic or social status of the accused or victim
are not the relevant factors for determining the
quantum of punishment. The court has to decide the
punishment after considering all aggravating and
mitigating factors and the circumstances in which
the crime has been committed.………… The court
must exercise its discretion in imposing the
punishment objectively considering the facts and
circumstances of the case.
In State of U.P. Vs. Sanjay Kumar (2012) 8 SCC
537 it was held that the survival of an orderly
society demands the extinctive of the life of a
person who is proved to be a menace to social order
and security.…………… The courts should impose a
punishment befitting to the crime so that the courts
are able to accurately reflect public abhorrence of
the crime. It is the nature and gravity of the crime
and not the criminal, which are germane for
consideration of appropriate punishment in a
criminal trial. Imposition of sentence without
considering its effect on social order in many cases
may be in reality, a futile exercise.
Of late in Shanker Kishanrao Khade Vs. State of
Maharashtra (2013) 5 SCC 546 it has been held that
for imposing death sentence- Crime Test, Criminal
Test and R-R Test (Rarest of Rare Test) must be
applied and not the balancing test i.e. balancing of
aggravating and mitigating circumstances. R-R test
must be based on perception of society and must
not be Judge-centric.
Keeping in view the entire facts and
circumstances, I am of the view that both the
accused are not menace to the orderly society this is
not a fit case for inflicting death penalty under
section 302 read with section 34 I.P.C. and,
therefore, it appears just and proper to sentence the
accused to rigoures imprisonment for life under
section 302 read with section 34 I.P.C. with a fine of
Rs.10,000/- each, to 5 years rigoures imprisonment
with a fine of Rs.5,000/-each under section 201 read
with section 34 I.P.C. It also appears expedient in
the interest of justice to sentence the accused
accused Dr. Rajesh Talwar under section 203 I.P.C.
to simple imprisonment of one year with a fine of Rs. 2,000/-.
O R D E R
The accused Dr. Rajesh Talwar and Dr. Nupur Talwar are convicted under sections 302 read with section 34 and section 201 read with section 34 I.P.C. Dr. Rajesh Talwar is also convicted under section 203 I.P.C. Both the accused are sentenced to rigoures 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. Rajesh Talwar is 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. All the sentences shall run concurrently. One copy each of the judgment be provided free of cost to the accused immediately.
Both the accused shall be sent to jail under a warrant to serve out the sentence as imposed upon them. Material Exhibits shall be disposed off as per rules, after expiry of the period of limitation for filing the appeal, if no appeal is filed. The accused shall be sent to District Jail under warrant of conviction. The copy of the judgement should be sent to the District Magistrate, Ghaziabad in terms of section 365 Cr.P.C.
Dated: 26.11.2013
(S.Lal)
Addl. Sessions Judge/
Special Judge Anti-Corruption, (C.B.I.), Ghaziabad.
Judgment signed, dated and pronounced in open court today.
Dated: 26.11.2013
(S.Lal)
Addl. Sessions Judge/
Special Judge Anti-Corruption,
(C.B.I.), Ghaziabad.
