CIVIL

Arushi Murder Case page 3

 

the knowledge of the accused. In Sandeep Vs.
State of U.P. (2012) 6 SCC 107, it has been held
that burden of proof regarding facts specially within
accused’s knowledge lies on him. In Babu Vs. Babu
2003 SCC (Crl.) 1569 and in Amar Singh Man
Singh Suryavanshi Vs. State of Maharashtra
(2007) 15 SCC 455 it was held that where husband
and wife were living together and at the time of
death they were alone in the room, it was for the
husband to explain as to how the deceased met her
death. In Tulsi Ram Sahadu Suryavanshi Vs.
State of Maharashtra (2012) 10 SCC 373, it has
been held that a fact otherwise doubtful may be
inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved facts, the court exercises a process of
reasoning and reaches a logical conclusion as to the
most probable position. The above position is
strengthened in view of section 114 of the Evidence
Act which empowers the court to presume the
existence of any fact which it thinks is likely to have
happened. In that process, the courts shall have
regard to the common course of natural events,
human conduct etc. in addition to the facts of the
case. In these circumstances, the principles
embodied in section 106 of the Evidence Act can
also be utilized. Section 106 however, is not
intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable
doubts, but it would apply to cases where the
prosecution has succeeded in proving facts from
which a reasonable inference can be drawn
regarding the existence of certain other facts, unless
the accused by virtue of his special knowledge
regarding such facts, has offered an explanation
Page 83

which might drive the court to draw a different
inference.
In Babu @ Bala Subramaniam & others Vs.
State of T.N. (2013) 8 SCC 60, it was observed as
under:-
“Besides it is not contended by A-1 Babu that
he was not present in the house when the incident
occurred. To this fact situation, section 106 of the
Evidence Act is attracted. As to how the deceased
received injuries to her head and how she died must
be within the exclusive personal knowledge of A-1
Babu. It was for him to explain how the death
occurred. He has not given any plausible
explanation for the death of the deceased in such
suspicious circumstances in the house in which he
resided with her and when he was admittedly
present in the house at the material time. This
circumstance must be kept in mind while dealing
with this case. We are not unmindful of the fact that
this would not relieve the prosecution of its burden
of proving its case. But, it would apply to the case
where the prosecution has succeeded in proving
facts from which a reasonable inference can be
drawn regarding the existence of certain other facts,
unless, the accused by virtue of special knowledge
regarding such facts, has offered an explanation
which might drive the court to draw a different
inference. In this case, the law as enunciated in Tulsi
Ram’s case as referred to supra has been relied
upon. In Trimukh Maroti Kirkan Vs. State of
Maharashtra 2007 SC Criminal Rulings 384, it
was held by their Lordships of the Hon’ble Supreme
Court that if an offence takes place inside the
Page 84

privacy of the house and in such circumstances
where the assailants have all the opportunities to
plan and commit the offence at the time and in
circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to
establish the guilt of accused if strict principle of
circumstantial evidences is insisted upon by the
courts. It was further held that when death had
occurred in the custody of the accused, he is under
an obligation to give a plausible explanation for the
cause of death of the deceased in his statement
under section 313 Cr.P.C. and mere denial of the
prosecution case coupled with absence of any
explanation will be inconsistent with the innocence
of the accused but consistent with the hypothesis
that the accused is a prime accused in the
commission of murder. The same view was taken in
Mohibur Rehman Vs. State of Assam (2002) 6
SCC 715, Amit @ Ammu Vs. State of
Maharashtra (2003) 8 SCC 93, State of
Rajasthan Vs Kashi Ram AIR 2007 SC 144 and
Santosh Kumar Singh Vs. State through C.B.I.
(2010) 9 SCC 747 (Priyadarshini Mattoo’s
Case). In Rajendra Prahlad Rao Wasnik Vs.
State of Maharashtra 2012 (77) ACC 153 (SC),
it has been held that once the prosecution proved
that accused and victim were seen together, it was
for the accused to explain the circumstances. In its
latest judgment in Ravirala Laxmaiah Vs. State
of Andhra Pradesh (2013) 9 SCC 283, it has
recently been ruled that where the accused has
been seen with the deceased victim (last seen
theory), it becomes the duty of the accused to
Page 85

explain the circumstances under which the death of
the victim has occurred. (Vide Nika Ram Vs. State
of H.P. (1972) 2 SCC 80, Ganesh Lal Vs. State
of Maharashtra (1992) 3 SCC 106 and
Ponnusamy Vs. State of T.N. (2008) 5 SCC
587). Thus the quintessence of case laws in a
thumb-nail-sketch is that the law does not enjoin a
duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at
any rate extremely difficult to be led. The duty of
the prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and
circumstances of the case. Where an offence like
murder is committed in secrecy inside a house, the
initial burden to establish the case would,
undoubtedly, be upon the prosecution, but the
nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree
as is required in other cases of circumstantial
evidence. The burden would be of a comparatively
lighter character. In view of section 106 of the
Evidence Act, there will be a corresponding burden
on the inmates of the house to give a cogent
explanation as to how the crime was committed.
The inmates of the house cannot get away by simply
keeping quiet and offering no explanation on the
supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is
no duty at all on an accused to offer any
explanation.
P.W.-10 Bharti Mandal has recounted that on
16.05.2008 at about 06:00 A.M. she reached as
usual at Flat No. L-32, Jalvayu Vihar and rang the
Page 86

call-bell of the house but no response came from
inside. After pressing the call-bell second time, she
went up-stairs to take mopping bucket. Thereafter,
she put her hand on the outer grill/mesh door but it
did not open. Subsequently, she again pressed the
call-bell and then Dr. Nupur Talwar after opening the
wooden door came near the grill door/mesh door
situated in the passage and enquired about the
whereabouts of Hemraj to which she replied that she
had no idea of him and then Dr. Nupur Talwar told
her that Hemraj might have gone to fetch milk from
Mother-Dairy after locking the middle grill/mesh
door from outside and she could wait until he
returned. Thereupon, she asked Dr. Nupur Talwar to
give her keys so that she may come inside the
house after unlocking the same and then Dr. Nupur
Talwar told her to go to the ground level and she
would be throwing keys to her from balcony.
Accordingly, when she came down the stairs and
reached the ground level, 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. Thereafter,
Dr. Nupur Talwar told her “Dekho Hemraj Kya karke
gaya hai” (Look here, what has been done by
Hemraj). When maid Smt. Bharti went in Aarushi’s
room she saw that dead body of Aarushi was lying
on the bed and covered with a white bed sheet and
her throat was slit. Mr. Mir has criticized the
evidence of Mrs. Bharti Mandal on the fulcrum that
she was thoroughly tutored before stepping into the
witness box and she has admitted this fact in her
Page 87

cross-examination and therefore, no reliance can be
placed upon her testimony. Her testimony has also
been animadverted on the premise that she has
admitted in her cross-examination that for the first
time in the court she has deposed that thereafter
she came at the gate and placed her hand on the
outer mesh door and then it opened and she has not
given such statement to the investigating officer
and thus she has made improvements while giving
statement in the court which is nothing but an
afterthought as a result of tutoring. Mr. Mir has
counted upon Anil Prakash Shukla Vs. Arvind
Shukla (2007) 9 SCC 513 in support of his
arguments but I find myself unable to countenance
with the submission of the learned counsel. In the
said case the order of acquittal was recorded by the
Hon’ble High Court of Allahabad against which
appeals were filed by the complainant and the State
Government. The Hon’ble Supreme Court was
pleased to hold that P.W.-1 Anil Prakash was not a
natural witness, he had animosity against the
accused Arvind Shukla, his presence at the scene of
occurrence was by a sheer chance and the
deceased Atul Prakash had stated before the
investigating officer 20 days after the incident that
he had been tutored to give an incorrect statement
before the Magistrate and the Magistrate was
neither cited as witness in the charge-sheet nor
produced in the court and hence dying declaration
was rightly disbelieved by the Hon’ble High Court. It
is well settled law that in an appeal against the
order of acquittal, the appellate court normally does
not disturb the findings of acquittal unless the
Page 88

judgment of acquittal is perverse as the acquittal
strengthens the presumption of innocence of the
accused (Vide Narendra Singh Vs. State of M.P.
(2004) 10 SCC 699). In State of Goa Vs. Sanjay
Thakran and other (2007) 2 SCC (Crl.) 162 it
has been held that appellate court can review the
evidence and interfere with the order of acquittal
only if the approach of the lower court is vitiated by
some manifest illegality or the decision is perverse
and the court has committed manifest error of law
and ignored the material evidence on record. In that
case, the law as laid down in Chandrappa and
others Vs. State of Karnataka 2007 (58) ACC
402 (SC) was relied on. The same view has been
reiterated in Babu Vs. State of Kerala (2010) 9
SCC 189.
In the case in hand Mrs. Bharti Mandal has
nowhere stated that before giving statement to the
investigating officer, she was tutored by anyone.
“The facts and circumstances often vary from case
to case, the crime situation and the myriad psychic
factors, social conditions and people’s life-styles
may fluctuate, and so, rules of prudence relevant in
one fact-situation may be inept in another. We
cannot accept the argument that regardless of the
specific circumstances of a crime and criminal
milieu, some strands of probative reasoning which
appealed to a Bench in one reported decision must
mechanically be extended to other cases” (vide
Rafiq Vs. State of U.P. AIR 1981 SC 559). In
Haryana Financial Corporation Vs. M/s
Jagdamba Oil Mills AIR 2002 SC 834, Islamic
Academy of Education & another Vs. State of
Page 89

Karnataka & others (2003) 6 SCC 697, P.S.
Sathappan Vs. Andhra Bank Ltd. (2004) 11
SCC 672, M/s Zee Telefilms Ltd. & another Vs.
Union of India & others 2005 (2) SCJ-121,
Ramesh Chand Daga Vs. Rameshwari Bai 2005
(3) SCJ-1, it has been held that observations of the
courts could not be read as provisions of statute.
The observations of the court are to be read in the
context in which they appear. Judges interpret
statutes and do not interpret judgments. In B.
Shyama Rao Vs. U.T. of Pondicherry AIR 1967
SC 1480 (Constitution Bench), R.L. Jain (Dead)
by LRs Vs. Delhi Development Authority
(2004) 3 ACE 235 and State of Rajasthan Vs.
Ganesh Lal AIR 2008 SC 690, it was held that
reliance on a decision without looking into the
factual background of the case before it, is clearly
impermissible. A decision would be a precedent on
its own facts. Each case presents its own features. A
decision is an authority for what it actually decides.
What is of the essence in a decision is ratio and not
every observation found therein nor what logically
follows from various observations made in the
judgment.
In M/s Amar Nath Om Prakash Vs. State of
Punjab AIR 1985 SC 218 and Union of India &
others Vs. Arul Mozhi Iniarasu AIR 2011 SC
2731, it was observed that observations of court
are not to be read as Euclid’s Theorem or provisions
of statute. Observations must be read in context
they are made. Blind reliance on decision by court is
improper.
Page 90

In Narmada Bachao Aandolan Vs. State of
M.P. AIR 2011 SC 1989 (3JJ) and Rajeshwar Vs.
State of Maharashtra 2009 Cr.L.J. 3816
(Bombay-FB), it has been held that disposal of
cases by blindly placing reliance upon a decision is
not proper. A little difference in facts or additional
facts may make a lot of difference to the
precedential value of a decision. Thus, the above
case law cited by learned counsel is of no help to
the accused persons as being based on different
contextual facts and circumstances and therefore,
that citation is an act of supererogation.
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. The accused Dr.
Nupur Talwar has admitted in her answers to
question nos. 18, 19, 22 and 23 under section 313
Cr.P.C. that the evidence given by Mrs. Bharti
Mandal is correct. However, she has taken plea that
the evidence of Mrs. Bharti Mandal to the effect that
she had put her hand on the outer mesh door is
incorrect as she has not stated this fact to the
investigating officer. In Mohan Lal and another
Vs. Ajit Singh and another AIR 1978 SC 1183 it
has been held that under section 313 Cr.P.C. it is
permissible to accept that part of the statement
which accords with the evidence on record and to
act upon it. It was further held that while considering
Page 91

the statement of the accused under section 313
Cr.P.C. it is permissible to reject the exculpatory part
of the statement if it is disproved by the evidence on
record and to act upon it. In Waman Vs. State of
Maharashtra 2011 Cr.L.J. 4827 (SC), it was held
that the testimony of a witness cannot be
disbelieved merely because of some omission in
statement under section 161 Cr.P.C. and the
evidence before the court. In Alam Gir Vs. State
(N.C.T.) of Delhi AIR 2003 SC 282, it was
observed that evidence of, otherwise credit-worthy
witness cannot be discarded merely because it was
not available in statement under section 161 Cr.P.C.
In Achara Parambath Pradeepan and others
Vs. State of Kerala 2007 (1) Crimes 54 (SC), it
was held that it would be too much to expect of any
person to say everything in his statement before the
police. To see a person by face is one thing but to
know him by name is different. Some improvements
in the testimony of the witness could not lead to
rejection thereof in its entirety. In Govind and
others Vs. State of M.P. AIR 1994 SC 826, it
was held that if the witness had not given details of
occurrence in her statement under sections 161,
164 Cr.PC then it will not be a ground to reject her
evidence. In Jagdish Narayan Vs. State of U.P.
1996 JIC 388 (SC) and Lal Jit Singh Vs. State of
U.P. 2001 S.C.Cr.R 297 (3JJ) it has been held that
omissions in the statements given to police if not
material will not amount to contradiction to impeach
the version. In State of U.P. Vs. Ram Swarup
1997 JIC 1132 (DB), it has been held that minor
contradictions are not to be given much importance.
Page 92

In Shyam Sunder Vs. State of Chhattisgarh
(2002) 8 SCC 39 it was observed that where an
incident is narrated by the same person to the
different persons on different occasions some
difference in the mode of narrating the incident is
bound to arise. But such differences do not militate
against the trustworthiness of the narration unless
the variations can be held to be so abnormal or
unnatural as would not occur if the witness has
really witnessed what he was narrating. In Leela
Ram Vs. State of Haryana 2000 (40) ACC 34
(SC), it was held that “when an eye-witness is
examined at length, it is quite possible for him to
make some discrepancies. No true witness can
possibly escape from making some discrepant
detail. Perhaps an untrue witness who is well tutored
can successfully make his testimony totally nondiscrepant.
But court should bear in mind that it is
only when the discrepancies in the evidence of a
witness are so incompatible with the credibility of
his version that the court is justified in jettisoning
his evidence…….” “It is common practice in trial
courts to make out contradictions from the previous
statement of a witness for confronting him during
cross-examination. Merely because there is
inconsistency in evidence, it is not sufficient to
impair the credit of the witness. No doubt section
155 of the Evidence Act provides scope for
impeaching the credit of a witness by proof of an
inconsistent former statement, but a reading of the
section would indicate that all inconsistent
statements are not sufficient to impeach the credit
of the witness.” In Sukh Dev Yadav & others Vs.
Page 93

State of Bihar 2001 SCC (Crl.) 1416, it was
observed that there would hardly be a witness
whose evidence does not contain some amount of
exaggerations or embellishments. Sometimes there
is a deliberate attempt to offer the exaggerated
evidence and sometimes the witnesses in their over
anxiety to do better from the witness box detail out
an exaggerated account. Minor variations in
prosecution evidence are of no value if the evidence
in its entirety appears to be trustworthy.
In Sunil Kumar Vs. State Government of
N.C.T. of Delhi 2004 (48) ACC 27 (SC) it was
observed that slight insignificant omissions could
neither be termed as improvement in statement or
contradictions. Testimony recorded in court after
lapse of considerable period cannot be expected to
be exact and precise mathematical reproduction of
facts. In Umar Daraz & others Vs. Nihal Singh &
others 1965 AWR 489, it was observed that the
art of “x-bamboozling” a witness has attained the
high degree of perfection. For these reasons no
importance should be given to the so called
admission.
In Jai Shree Yadav Vs. State of U.P. 2004
ALJ 3232 (SC), it has been held when witness is
subjected to lengthy arduous cross-examination
over a lengthy period of time, there is always a
possibility of the witness committing mistakes,
which can be termed as omissions, improvements
and contradictions and therefore, those infirmities
will have to be appreciated in the background of
ground realities which makes the witness confused
because of the filibustering tactics of the crossPage
94

examining counsel. In Mata Deen Vs. State of
U.P. 1979 Allahabad Criminal Rulings 2 SOC
(SC), it has been held that statements given to I.O.
are supposed to be brief and the detailed
statements are given in the court.
In Zwinglee Ariel Vs. State of M.P. AIR
1954 SC 15, Nisar Ali Vs. State of U.P. AIR
1957 SC 366, Ugar Ahir Vs. State of Bihar AIR
1965 SC 277, Sohrab Vs. State of M.P. AIR
1972 SC 2020, Bhagwan Tana Patil Vs. State of
Maharashtra (1974) 3 SCC 536, Balaka Singh
Vs. State of Punjab (1975) 4 SCC 511, S.G.P.
Committee Vs. M.P. Das Chela (1998) 5 SCC
157, Krishna Mochi Vs. State of Bihar (2002) 6
SCC 81, Nathu Singh Yadav Vs. State of M.P.
(2002) 10 SCC 366, Sucha Singh and others Vs.
State of Punjab (2003) 7 SCC 643, Israr Vs.
State of U.P. 2004 AIR SCW 6916, Jakki Vs.
State (2007) 9 SCC 589, Kulvinder Singh Vs.
State of Punjab (2007) 10 SCC 455, Ganesh Vs.
State of Karnataka (2008) 17 SCC 152, Dinesh
Singh Vs. State of U.P. 2008 SCCrR 1201,
Dalbir Singh Vs. State of Haryana AIR 2008 SC
2389, Jaya Seelan Vs. State of T.N. (2009) 12
SCC 275, Prem Singh Vs. State of Haryana
(2009) 14 SCC 494, Mani Vs. State (2009) 12
SCC 288, Animi Reddy Venkata Ramana and
others Vs. P.P. High Court of A.P. 2008 (61)
ACC 703 (SC) and Balraje Vs. State of
Maharashtra (2010) 6 SCC 673, it has been held
that the maxim “Falsus in uno, falsus in omnibus” is
not applicable in India.
Page 95

In State of Andhra Pradesh Vs. Kanda
Gopaludu 2005 (53) ACC 772 (SC) it was
observed that every discrepancy in statement of
witness cannot be treated as fatal. In B.K.
Channappa Vs. State of Karnataka 2007 (2)
Crimes 171(SC), it has been held that in a
searching lengthy cross-examination, some
improvements, contradictions and omissions are
bound to occur which if not serious and vital would
not permit to discard the substratum of the
prosecution case. In Indra Pal Singh Vs. State of
U.P. 2009 Cr.L.J. 942 (SC), it has been held
that giving undue importance and acquitting
the accused on insignificant contradictions is not
proper. In State of U.P. Vs. Krishna Master 2010
Cr.L.J. 3889 (SC), it has been held that
discrepancies normally exists. They are due to
errors of observations, mental disposition, shock and
horror at the time of incident. Unless they go to the
root of matter, such discrepancies do not make
evidence unreliable.
Following the law as expressed in State Vs.
Sarvanana (2008) 17 SCC 587 and Sunil Kumar
Sambhu Dayal Gupta Vs. State of Maharashtra
(2010) 13 SCC 657, it has been held in Ravi
Kapur Vs. State of Rajasthan AIR 2012 SC 2986
that if variation in statements of witnesses is not
material to affect the prosecution case then it has to
be ignored.
In Sahabuddin Vs. State of Assam 2013
(80) ACC 1002 (SC), it has been ruled that every
variation or immaterial contradiction cannot provide
advantage to the accused. It is a settled principle of
Page 96

law that while appreciating the evidence, the court
must examine the evidence in its entirety upon
reading the statement of a witness as a whole and if
the court finds the statement to be truthful and
worthy of credence, then every variation or
discrepancy particularly which is immaterial and
does not affect the root of the case of the
prosecution would be of no consequences. In that
case also, the law as laid down in State Vs.
Sarvanan (2008) 17 SCC 587 has been followed.
In Sampath Kumar Vs. Inspector of Police,
Krishnagiri (2012) 4 SCC 124, it was observed
that minor contradictions are bound to appear
in statements of truthful witnesses as memory
sometimes plays false and sense of observation
differs from person to person. Discrepancies in
testimony of witness caused by memory lapses are
acceptable. In that case, the law as laid down in
Narayan Chetram Chaudhary Vs. State of
Maharashtra (2000) 8 SCC 457 and State of
H.P. Vs. Lekhraj (2000) 1 SCC 247 was relied on.
In Lekhraj’s case, it was observed “The criminal trial
cannot be equated with a mock scene from a stunt
film ……. The realities of life have to be kept in
mind while appreciating the evidence for arriving at
the truth. The traditional dogmatic hyper-technical
approach has to be replaced by rational, realistic
and genuine approach for administering justice in a
criminal trial. The Criminal Jurisprudence cannot be
considered to be a Utopian thought but have to be
considered as part and parcel of the human
civilization and realities of life. The courts cannot
ignore the erosion in values of life which are a
Page 97

common feature of the present system. Such
erosions cannot be given a bonus in favour of those
who are guilty of polluting society and the
mankind.”
In Ramesh Harijan Vs. State of U.P. (2012)
5 SCC 777 and Kuria Vs. State of Rajasthan
(2012) 10 SCC 433, it has also been held that it is
duty of the court to unravel the truth under all
circumstances. Undue importance should not be
given to minor discrepancies which do not shake the
basic version of the case. In Jagroop Singh Vs.
State of Punjab AIR 2012 SC 2600, it has been
held that omissions and contradictions in evidence
of witness affect credibility of witness only if
omission and contradiction affect core of the
prosecution case.
In Lal Bahadur Vs. State (N.C.T. of Delhi)
(2013) 4 SCC 557, it has been held that marginal
variations in the statements of a witness cannot be
dubbed as improvement as the same may be
elaboration of the statement made by the witness
earlier. In view of the above legal propositions, the
evidence of P.W.-10 who is completely disinterested
witness having no animosity or rancour against the
accused, cannot be brushed aside as unworthy of
belief.
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
Page 98

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. This fact gets strengthened from another fact
that the private parts of Ms. Aarushi were cleaned
with water and therefore, the bed-sheet below the
pelvic region was found wet and no biological fluid
or semen could be detected while examining the
bed-sheet material Exhibit-55 by P.W.-6 Dr. B.K.
Mohapatra, the Senior Scientific Officer Grade-I of
C.F.S.L., New Delhi. Dr. Mohapatra has clearly
deposed that in the said material Exhibit no urine
could be detected. He has proved his biological
examination and DNA profiling report dated
15.07.2010 as Exhibit-ka-14 in which it has been
also mentioned that the designated circular area of
bed-sheet Exhibit-1(material Exhibit-55) did not
yield DNA for analysis. 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.
P.W.-7 K.K. Gautam has deposed that he is
acquainted with Dr. Sushil Chaudhary of Eye Care
Hospital, Sector-26, N.O.I.D.A. who on 16.05.2008
made a telephone call to him and informed that the
daughter of Dr. Rajesh Talwar who happens to be
the brother of his friend Dr. Dinesh Talwar has been
murdered and the dead body has been sent for
postmortem examination and therefore, he should
help him. He has also stated that Dr. Sushil
Chaudhary has also desired that the fact of rape
should not be mentioned in the postmortem
Page 99

examination report but he expressed his inability on
this point. P.W.- 17 Deepak Kanda, Nodal Officer,
Airtel, New Delhi has deposed that User ID DSL
01205316388 is in the name of Mrs. Nupur Talwar,
R/o L-32, Sector-25, N.O.I.D.A. and its land line
telephone number is 01204316388. P.W.-19
Deepak, Nodal Officer, Vodafone Mobile Services
Ltd., New Delhi has deposed that mobile no.
9899555999 is in the name of K.K. Gautam of
Invertis Institute of Studies and mobile no.
9999101094 is in the name of Dr. Sushil Chaudhary.
P.W.-21 R.K. Singh, Nodal Officer, Bharti Airtel Ltd.,
New Delhi has proved that mobile nos. 9910520630,
9871557235, 9871625746, 9810037926 are in the
name of Dr. Rajesh Talwar. He has also proved that
mobile no. 9810302298 is in the name of Dr. Dinesh
Talwar. P.W.-22 M.N. Vijayan, Nodal Officer, Tata
Tele Services Ltd., New Delhi has proved that mobile
no. 9213515485 is registered in the name of Dr.
Rajesh Talwar. P.W.-19 has deposed that as per
Exhibit-ka-25 on 16.05.2008 a call was made at
11:15:06 hours from mobile no. 9810302298 to
mobile no. 9999101094. Duration of this call was
105 seconds. He has also stated that on 16.05.2008
a call was made from 9999101094 to mobile no.
9899555999 at 11:57:36 hours and its duration was
144 seconds. On the same date a call was made
from 9999101094 to mobile no. 9810302298 at
12:07:56 hours and it lasted for 18 seconds. On the
same date a call was made from 9999101094 to
mobile no. 9899555999 at 12:08:44 hours for 128
seconds. On the same date a call was made from
9810302298 to mobile no. 9999101094 at 15:02:08
Page 100

hours and its duration was 34 seconds. On the same
date a call was made from 9810302298 to mobile
no. 9999101094 at 15:06:00 hours and its duration
was 14 seconds. On the same date a call was made
from mobile no. 9899555999 to mobile no.
9999101094 at 18:57:11 hours and its duration was
66 seconds and at 18:57:15 hours and its duration
was also 66 seconds. On the same date a call was
made from mobile no. 9999101094 to mobile no.
9810302298 at 19:26:17 hours and its duration was
40 seconds. Thus, it becomes evident that Dr. Sushil
Chaudhary, Dr. Dinesh Talwar and K.K. Gautam were
in touch with each other on telephones over this
issue. Call-detail records have been duly proved.
Certificate under section 65-B of the Evidence Act
has also been proved by P.W.-19. Recently, in
Prashant Bharti Vs. State (N.C.T. Of Delhi)
(2013) 9 SCC 293 it has been held that evidence of
mobile phone call-details is conclusive in nature for
all intents and purposes. In that decision the law as
laid down in Gajraj Vs. State (N.C.T. Of Delhi)
(2012) 1 SCC (Cri.) 73 = (2011) 10 SCC 675 was
relied on in which it has been held that existence of
even serious discrepancy in oral evidence has to
yield to conclusive scientific evidence (Call Detail
Records). In 2005 (3) Crimes 87 (SC), it has been
held that print-outs taken from computer/server are
admissible and they are to be treated as authentic.
It is pertinent to mention here that before
16.05.2008 they have hardly made telephone calls
to each other and thus it is fully established that
they were in contact with each other regarding nondisclosure
of factum of sexual intercourse in the
Page 101

postmortem examination report of Ms. Aarushi. Dr.
Sunil Kumar Dohre has also stated that when he was
on way to postmortem examination room then Dr.
Dinesh Talwar gave him a cell-phone and told him to
talk with Dr. T.D. Dogra of A.I.I.M.S. Although, Dr.
Dohre had only stated that Dr. T.D. Dogra had told
him that blood samples of the deceased Aarushi be
taken but it appears that Dr. Dogra had asked him
not to mention in the postmortem examination
report about the evidence of sexual intercourse and
this fact has been deliberately suppressed by Dr.
Dohre.
If Dr. Dohre has not mentioned in the
postmortem examination report that opening of
vaginal cavity was prominent and the vaginal canal
was visible; that the vaginal orifice of Aarushi was
wide and open and that vaginal canal could be seen;
that the hymen of the deceased was old, torn and
healed and these facts were not stated to the earlier
investigating officers on 18.05.2008, 18.07.2008
and 03.10.2008 then it cannot be said that his
statement cannot be relied upon. Since questions
regarding the condition of vagina were not
specifically asked by the earlier investigating
officers and therefore, there was no occasion to tell
about these facts to them. In Jaswant Singh Vs.
State of Haryana (2000) 4 SCC 484 it has been
held that an omission in order to be significant must
depend upon whether the specific question, the
answer to which was omitted, was put to the
witness. If the condition of vagina, vaginal orifice
was not mentioned in postmortem examination
report and it was also not mentioned that hymen
Page 102

was old, torn and healed then it shows negligence or
deliberate act on the part of Dr. Dohre who appears
to have suppressed these material facts in the
postmortem examination report only because he
was approached by Dr. T.D. Dogra and Dr. Dinesh
Talwar of his professional fraternity who remained in
touch with him before postmortem examination.
A man may tell a lie but the circumstances can
never. Both the accused have admitted in their
written statements under section 313 Cr.P.C. that on
some occasions Dr. Nupur Talwar removed the key
from Ms. Aarushi’s lock and kept the same with her.
It is an admitted fact that the door of Ms. Aarushi’s
bed-room was having click shut automatic lock and
as such it could have been opened either by the
parents with the key from outside or by Ms. Aarushi
from inside. P.W.-29 Mahesh Kumar Mishra has
deposed that when he had talked to Dr. Rajesh
Talwar then he had told him that in the preceding
night at about 11.30 P.M. room of Ms. Aarushi’s door
was locked from outside and after taking the key he
had gone to sleep. It is not the case of the accused
that on that fateful night the key of bed-room was
with Hemraj or that they had opened the door with
the key and therefore, it becomes clear that the
room was opened by Ms. Aarushi herself. It was not
possible either for Hemraj or an outsider to unlock
the door without the key. Mere absence of
spermatozoa in the vaginal swab cannot rule out
possibility of sexual intercourse as has been held in
Prithi Chand Vs. State of Himachal Pradesh
1989 SCC (Cri.) 206. It is established that private
parts of deceased Ms. Aarushi were cleaned and
Page 103

because of that bed-sheet below the pelvic region
was found wet and hence presence of spermatozoa
can hardly be seen or found.
In Dudh Nath Pandey Vs. State of U.P. AIR
1981 SC 911, State of U.P. Vs. Babu Ram
(2000) 4 SCC 515, Munshi Prasad Vs. State of
Bihar 2001 (43) ACC 1001 (SC), State of
Haryana Vs. Ram Singh AIR 2002 SC 620, it has
been held that the credibility of defence witnesses
stands on the same footing on which prosecution
witnesses stand and there is no distinction between
the two. The defence witnesses are entitled to equal
treatment with the witnesses of prosecution.
However, the evidence of D.W.-3 Dr. Urmil Sharma
and D.W.-4 R.K. Sharma does not inspire confidence
on this aspect. D.W.-3 has stated in her crossexamination
that if male has undergone operation of
vasectomy ordinarily no spermatozoa shall be found
in his discharge. She has also stated that if there is
no spermatozoa in a male-discharge then
spermatozoa will not be seen. It is not to be
forgotten that both the accused are doctors by
profession and therefore, they were in position to
destroy the evidence of performance of sexual
intercourse. D.W.-3 Dr. Urmil Sharma is completely
an interested and partisan witness who has
appeared in the court to depose in favour of the
accused persons and therefore, her evidence cannot
be relied upon. She has admitted in her crossexamination
that she had met the accused persons
8-10 years back. She also knows Dr. Dinesh Talwar
because they both work in Apollo Hospital. She has
also admitted in her cross-examination that she has
Page 104

not examined the white discharge of this case and
without microscopic examination it will be difficult to
say as to whether the white discharge in the vagina
is from outsource or not and if the doctor conducting
postmortem examination has mentioned about the
presence of white discharge in the postmortem
examination report then question of examination by
microscope will not arise and thus the evidence of
D.W.-3 cannot be believed. D.W.-4 Dr. R.K. Sharma
has also admitted that white discharge has been
shown in the postmortem examination report of Ms.
Aarushi. His statement to the effect that if during
the process of setting in of rigor mortis vagina is
cleaned with cotton or soft cloth then injuries on
external and internal part of vagina may come
cannot be believed at all.
P.W.-36 Dr. Naresh Raj has mentioned in his
postmortem examination report that the penis of
Hemraj was found swollen but if he has stated
before the court that the swelling was because
either he had been murdered in the midst of sexual
intercourse or just before he was about to have
sexual intercourse is nothing but quite preposterous
and really a medical blasphemy as the reasons
ascribed by him are ludicrous. 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
Page 105

sexual intercourse. 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. The
prosecution cannot be supposed to give evidence of
that fact which is impossible for it to be given
because no eye witness except the accused persons
was present at the time of the murder of the
deceased persons. To repeat at the cost of
repetition, in all human affairs absolute certainty is a
myth and as Professor Brett felicitously puts it-
“all exactness is a fake”.
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
Page 106

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.
P.W.-6 Dr. B.K. Mohapatra has mentioned in his
report Exhibit-ka-6 that Exhibit-21 was one pillow
with printed multi coloured pillow-cover having few
faint brown stains. In Exhibit-kha-45 at page 33 it
has been written that one blood stained pillow with
pillow-cover was recovered from the room of Ms.
Aarushi. Dr. Mohapatra has mentioned in his report
Exhibit-ka-6 at para no. 8.12 IV that partial DNA
profiles generated from the source of
Exhibits-4(blood scrappings), 6-b (glass bottle), 9
(blood scrappings) and 21 (pillow) are consistent
with the DNA profiles generated from the source of
Exhibit-11 (blood stained threads) and Exhibit-24
(piece of wall having impression of palm print) at the
amplified loci. In Exhibit-kha-17 on which reliance
has been placed by the accused, it has been
mentioned at page no. 11 (paper no. 154-Aa/12) in
answer to question no. 2 that partial DNA profiles
generated from Exhibits-4 (blood scrappings), 6-b
(glass bottle), 9 (blood scrappings) and 21 (pillow)
are consistent with the DNA profiles generated from
the source of Exhibit-11 (blood stained threads) and
Exhibit-24 (piece of wall having impression of palm
Page 107

print) at the amplified loci and thus it becomes
abundantly clear that Hemraj’s DNA has been found
on the pillow with cover which was recovered from
the room of Ms. Aarushi as per letter dated
04.06.2008 Exhibit-kha-45 of S.P. (C.B.I.).
Dr. M.S. Dahiya, although, has not mentioned
in his report Exhibit-ka-93 that he inspected the
scene of crime but P.W.-39 Mr. A.G.L. Kaul has
deposed that in the case diary dated 09.10.2009 he
has mentioned that scene of crime was inspected
along with Dr. M.S. Dahiya. If inspector Arvind Jaitley
who accompanied Dr Dahiya has not been produced
then no adverse inference can be drawn. There is no
requirement of law to associate public witness at the
time of inspection of the crime scene. I.O. Mr. Kaul
also accompanied Dr. Dahiya at the time of
inspection of scene of crime and therefore, plurality
of evidence was not required. Subornation of
witnesses has been frowned upon by the Hon’ble
Supreme Court. Dr. Dahiya is a reputed expert of
forensic science. He is credited to have given
reports in very important cases which he has
detailed in his evidence. He is also the author of a
book “Crime Scene Management”. He has stated on
oath that on 09.10.2009 he had visited the scene of
crime along with the investigating team and then he
had prepared his report after having discussion with
the investigating officer. There is nothing to suggest
that such a witness holding high post and an
eminent expert will succumb to the pressure of
C.B.I. to give his report Exhibit-ka-93 against the
accused persons with whom no animosity or
prejudice has been shown. In view of the findings
Page 108

returned in the preceding paragraphs the report
Exhibit-ka-93 of P.W.-38 Dr. M.S. Dahiya cannot be
castigated as bereft of logic and rather the report is
compatible with the circumstances delineated
herein above. Thus, the motive of the crime also
stands proved. Mind is, indeed, a peculiar place and
the working of human mind is often inscrutable.
Motive is the moving power which impels action or a
definite result or to put it differently motive is that
which incites or stimulates a person to do an act
(vide Chandra Prakash Shahi Vs. State of U.P.
(2000) 5 SCC 152). In State of Karnataka Vs.
David Razario and others (2002) 7 SCC 728, it
has been held that where a credible evidence exists
on record to establish guilt of the accused, it is not
necessary to find out the motive of the crime. In
State of M.P. Vs. Digvijay Singh AIR 1981 SC
1740, Vinod Kumar Vs. State of M.P. 2002 (44)
ACC 994 (SC), Thamman Kumar Vs. U.T. of
Chandigarh (2003) 6 SCC 380, State of H.P. Vs.
Jeet Singh (1999) 4 SCC 370 and Suresh Chand
Bahri Vs. State of Bihar AIR 1994 SC 2420, it
has been held that absence of motive would not in
any manner destabilize the prosecution case. In
Mani Kumar Thapa Vs. State of Sikkim (2002)
7 SCC 157, Sahadevan @ Sagadevan Vs. State
2003 SCC (Crl.) 382, it has been held that if the
circumstances are proved beyond doubt, then the
absence of motive would not hamper a conviction.
In Ujagar Singh Vs. State of Punjab (2007) 13
SCC 90, it was held “it is true that in a case relating
to circumstantial evidence motive does assume
great importance but to say that the absence of
Page 109

motive would dislodge the entire prosecution story
is perhaps giving this one factor an importance
which is not due and (to use the cliché) the motive is
in the mind of the accused and can seldom be
fathomed with any degree of accuracy.” In
Mohmmad Adil Vs. State 2009 CrLJ NOC 424 it
was held that motive if proved makes the case
stronger but its absence does not render evidence
unworthy of acceptance. Proof of motive in a case
based on circumstantial evidence is of no
consequence when evidence is strong and
circumstances speak loudly, boldly and clearly.
There would be a single circumstance so strong,
weighty and conclusive that unless satisfactorily
explained, guilt of the accused could be drawn from
it. In Jagdish Vs. State of M.P. 2010 (1) U.P.
Criminal Rulings 391 (SC), it has been held that
in a case of circumstantial evidence motive does not
have extreme significance. In absence of motive,
the conviction based on circumstantial evidence can
in principle be made. In Pradeep Vs. State (N.C.T.
of Delhi) 2011 Cr.L.J. 4115 (DB-Delhi) it was
held that absence of motive in a case based on
circumstantial evidence is of no consequence, if
circumstances relied upon by the prosecution are
beyond reasonable doubt. In Ajit Singh Harnam
Singh Gujral Vs. State of Maharashtra 2012 (1)
ACR 94 (SC), it has been held that motive is
important in case of circumstantial evidence but it
does not mean that if prosecution is unable to
satisfactorily prove motive, its case must fail. Court
cannot enter into the mind of human being. The
same view has been taken in Amitava Banarjee @
Page 110

Bappa Banarjee Vs. State of West Bengal 2012
(1) ACR 306 (SC). In Munish Mubar Vs. State of
Haryana (2012) 10 SCC 464, it was held that
evidence regarding existence of motive which
operates in mind of an assassin is very often not
within the reach of others. Motive may not even be
known to victim. Motive may be known to assassin
and none else may know what gave birth to such
evil thought in his mind. Recently, in Sanaullah
Khan Vs. State of Bihar (2013) 3 SCC 52, it has
been held that where other circumstances lead to
the only hypothesis that accused has committed the
offence, court cannot acquit the accused of offence
merely because motive for committing offence has
not been established.
It is a matter of common knowledge that many
a murders have been committed without any known
or prominent motive. Mere fact that prosecution has
failed to translate that mental disposition of the
accused into evidence does not mean that no such
mental condition existed in the mind of the
assailant. Recently, in Vivek Kalra Vs. State of
Rajasthan 2013 (82) ACC 65, it has been
observed that where chain of other circumstances is
established beyond reasonable doubt that it is the
accused and accused alone who committed the
offence it cannot be held in absence of motive that
accused has not committed the offence.
Paper no. 182-Aa/2 to 182-Aa/13 was duly
prepared by Dr. Dahiya under his own signatures
and it has been proved in accordance with the
provisions of Evidence Act and therefore, rightly it
was marked as Exhibit-ka-93. Accordingly objections
Page 111

regarding marking of Exhibit are not sustained and
overruled.
It has next been contended by Mr. Mir that five
different murder weapons viz hammer, sharp-edged
weapon, kukri, golf club no. 5 and surgical scalpel
surfaced during the investigation; from 16.05.2008
to October 2009 the golf club was never in the
spectrum of the investigating agencies; on the basis
of the incorrect information supplied by Mr. A.G.L.
Kaul, Dr. Dahiya for the first time introduced golf
club as one of the murder weapons; Dr. Dahiya
mentioned in his report Exhibit-ka-93 that triangular
shaped head injury suggest that weapon of assault
must have been a golf club but in his evidence he
has admitted that I.O. had never showed him any
golf club; there is also some possibility of hockey
stick to have been used; the golf clubs were taken in
possession by C.B.I. on 30.10.2009 but their test
identification parade is not accordance with law and
hence inadmissible; in the examination report it was
found that blood or other biological fluids could not
be detected on Exhibits-1 to 12 (12 golf sticks);
negligible amount of soil was found sticking in the
cavity of the numbers engraved on bottom portion
of the head of the golf sticks (golf clubs) marked
Exhibit 3 & 5 in comparison to the soil sticking in the
cavity of the numbers engraved on bottom portion
of the heads of golf sticks (golf clubs & iron putter)
marked Exhibits 1, 2, 4, 6, 7, 8, 9, 10, 11 & 12;
P.W.-15 Mr. Umesh Sharma has been declared
hostile and has stated that in the C.B.I. Office on
seeing golf clubs bearing nos. 4 & 5 he has not
stated that these very golf clubs had been taken out
Page 112

by him from the car and kept in the servant quarter
of L-32; that when golf club bearing nos. 4 & 5 were
shown to him he has stated that he cannot say
whether these were the golf sticks bearing nos. 4 &
5; the test identification memo was not explained to
him in Hindi and since Mr. Kaul has beaten him up
and therefore, he had signed the memo out of fear;
that P.W.-16 Mr. Laxman Singh has deposed that Mr.
Umesh Sharma took out two golf sticks from bag
and stated to Mr. Kaul that these very two golf sticks
were kept by him in the servant quarter; that Dr.
Dohre for the first time on 28.05.2010 gave
statement to the I.O. that blunt injuries were caused
by a golf club and he has not stated in his
postmortem examination report that injury nos. 1 &
3 can be caused by golf club and only kukri was
shown to him by C.B.I.; Dr. Naresh Raj never opined
that blunt injuries could be caused by golf club and
for the first time in the court he stated that injuries
nos. 6 & 7 of Hemraj can be caused by a hard object
like a golf stick; that he had not given statement to
Mr. H.S. Sachan that injuries nos. 3, 6 and 7 can be
caused by a surgical scalpel or a golf club
respectively; that both Dr. Dohre and Dr. Naresh Raj
had opined as members of the expert committee
that blunt injuries could be caused by kukri; Dr.
Mohapatra has mentioned in his report Exhibitkha-37
the golf clubs examined by him resulted in
no identification of blood, no DNA, no biological
material on any of the golf clubs; that according to
report Exhibit-ka-53 of Mr. D.K. Tanwar Exhibit-3 is
the wooden golf club, Exhibit-5 is the golf club with
the engraving no. 4, Exhibit-6 is the golf club with
Page 113

the engraving no. 5 and thus golf club bearing
engraving no. 5 (Exhibit-6) was having dirt while it
has been the case of C.B.I. that golf club bearing
engraving no. 5 (Exhibit-6) was used as a murder
weapon; that the statement of Mr. Kaul that in the
intervening night of 15/16.05.2008 Dr. Rajesh
Talwar heard some noise and then he went to the
room of Hemraj and picked up one golf stick and
thereafter he again heard noise coming from his
daughter’s room, whereupon he pushed the door
which was ajar and found both the deceased in
compromising position and then he bludgeoned both
of them to death with the golf club but is selfcontradictory
as in his closure report Mr. Kaul has
himself jotted down that the exact sequence of
events (in the intervening night of 15/16.05.2008
00.08 mid night to 6:00 A.M. in the morning) is not
clear; no evidence has emerged to show the clear
role of Dr. Rajesh Talwar and Dr. Nupur talwar,
individually in the commission of crime; a board of
experts constituted during earlier investigation team
has given an opinion that the possibility of the
necks being cut by kukri cannot be ruled out,
although doctors who have conducted postmortem
examination have said that cut was done by
surgically trained person with a small surgical
instrument; D.W.-4 Dr. R.K. Sharma has deposed
that if an injury is caused by the golf stick then a
depressed fracture will be caused and the bone will
have a depression; this concept is based on Locard’s
Principle of Exchange; in Ms. Aarushi’s or Hemraj’s
postmortem examination report, it is nowhere
mentioned that any of the injuries caused depressed
Page 114

fractures; in Hemraj’s postmortem report the injury
no. 7 has been mentioned as having dimension of 8
X 2 cm. which cannot be caused by a golf stick
because the bone on the back of the head is round
shaped and the surface of the golf stick is flat,
therefore, if the golf stick is used in any manner to
cause injury then area of the impact shall never be 8
X 2 cm.; in Ms. Aarushi’s postmortem examination
report the injury nos. 1 & 3 have been mentioned
only as fracture but depressed fracture has not been
mentioned; therefore, injury no. 1 & 3 on the head
of Ms. Aarushi was not caused by the golf club; in
postmortem examination report of Ms. Aarushi injury
nos. 1 & 3 has been described by Dr. Dohre as a line
fracture and therefore, the said injury nos. 1 & 3
could not have been caused by the golf club and
thus theory of golf club was introduced for the first
time in October 2009, although, set of golf clubs was
available but no notice under section 91 Cr.P.C. was
ever given to produce the same nor Dr. Rajesh
Talwar was questioned about the golf club. It was
further submitted that T.I.P. of golf clubs was never
conducted in the presence of Judicial Magistrate;
that golf clubs were wrapped with a cloth on the
middle portion and heads and handles of clubs were
exposed and not sealed at all and therefore,
possibility of tampering or cleaning at the end of
C.B.I. cannot be ruled out and even Malkhana
Register has not been produced nor incharge
Malkhana was produced to show the proper custody
of golf clubs and the entire chain of custody is
fraught with suspicion as it has not been proved as
to when golf clubs were sent back to C.F.S.L. or to
Page 115

Mr. D.K. Tanwar and thus the story as depicted by
the prosecution is absolutely apocryphal.
It has also been argued by Mr. Mir that the
theory propounded by Dr. Dahiya that necks of both
the deceased were slit by surgical scalpel is also not
worth reliable in view of the fact that expert
committee in its report Exhibit-kha-17 dated
06.09.2008 opined that both the head and neck
injuries are possible to have been caused by kukri;
Dr. Dohre has no where stated on 18.05.2008,
18.07.2008 and 03.10.2008 that injury nos. 2 and 4
may be caused by surgically sharp-edged weapon
and for the first time he has stated before the
investigation officer on 30.09.2009 and 28.05.2010
that injury nos. 2 and 4 were caused by sharp-edged
surgical instrument; the evidence of Dr. Naresh Raj
that injury no. 3 of Hemraj may be caused by scalpel
cannot be accepted as he has also not stated to Mr.
H.S. Sachan that the injuries no. 3, 6 and 7 can
respectively be caused by surgical scalpel and golf
stick and P.W.-30 Dr. Dinesh has stated in his crossexamination
that he does not know what was the
syllabus of B.D.S. in the year 1983; that statement
of Dr. Chandra Bhushan Singh was neither recorded
nor he was produced in the court and D.W.-2 Dr.
Amulya Chaddha has stated in his evidence that
dentist do not receive any emergency patients who
would require treatment with scalpels and mostly
dentists keep scalpels in their clinic and not at home
and a prosthodontist hardly uses a scalpel and most
commonly no. 15 blade is used in the scalpel; the
job of orthodontist cannot be performed by a
prosthodontist unless he has got the specialization;
Page 116

the cutting edge of blade no. 15 is 7.8 mm.,
normally in injuries caused by scalpels one is bound
to see slashes and injuries on the necks of the
deceased do not have the pattern of slashes and
rather they are deep which can be caused by heavy
sharp-edged and curved shaped weapon; if scalpel
is used in cutting the trachea then the scalpel can
break because it has cartilage, cutting of which is
not easy; carotid artery of Ms. Aarushi was found cut
and it was found very deep and as such cutting with
scalpel is very difficult; surgically trained person
cannot cut the neck in one stroke with a small
instrument and both Dr. Dohre and Dr. Raj have no
where stated in the court that cuts on the necks of
the deceased were surgical cuts and as such use of
surgical scalpel in causing the neck injuries of both
the deceased is not proved. In support of his
arguments the learned counsel has placed reliance
on State of H.P. Vs. Jai Lal and others (1999) 7
SCC 280, Ramesh Chandra Aggarwal Vs.
Regency Hospital Limited and others 2010 (1)
ALJ 740 (SC), Madan Gopal Kakkad Vs. Naval
Dubey and another (1992) 3 SCC 204, Mohd.
Zahid Vs. State of T.N. (1999) 6 SCC 120,
Manik Gawali Vs. State of Maharashtra Crl.
Appeal No. 292 of 2006 decided by Hon’ble
High Court of Bombay on 21.12.2012,
Ramkishan Mithan Lal Sharma Vs. State of
Bombay AIR 1955 SC 104, Budhsen Vs. State
of U.P. 1970 (2) SCC 128, Kanan Vs. State of
Kerala (1979) 3 SCC 319, Panna Yar Vs. State
of T.N. (2009) 9 SCC 152, Prabir Mondal Vs.
State of West Bengal (2010) 1 SCC 386. These
Page 117

arguments are more captious than substantial and
therefore, have to be accepted to be rejected only.
In the postmortem examination report of Ms.
Aarushi Exhibit-ka-3 it has been clearly mentioned
that injury nos. 1 and 3 are lacerated wounds while
injury nos. 2 and 4 are incised wounds. Likewise, in
the postmortem examination report of Hemraj
Exhibit-ka-88 injury no. 1 has been shown as
abrasion, injury nos. 2, 4, 5 as abraded contusions,
injury no. 3 has been shown as incised wound and
injury nos. 6 and 7 have been shown as lacerated
wounds. Thus, injury nos. 1 and 3 of Ms. Aarushi are
possible to have been caused by some blunt object
and injury nos. 2 and 4 are possible to be caused by
any sharp-edged weapon. Likewise, injury nos. 1, 2,
4 and 5 of Hemraj are possible to be caused by
dragging, injury nos. 6 and 7 are possible to be
caused by a blunt object like golf stick and injury no.
3 is possible to have been inflicted by a sharp-edged
weapon. It is regretted that both Dr. Dohre and Dr.
Raj have not mentioned in the postmortem
examination reports as to which injury was caused
by which weapon. This was required to be
specifically mentioned in the postmortem
examination reports but alas they have not done so
for the reasons best known to them. Dr. Dohre has
stated at page no. 3 of his cross-examination that
since on 18.07.2008 the investigating officer had not
asked about the weapons for causing injuries of Ms.
Aarushi and therefore, he had not told him. He has
further deposed that injury no. 1 and 3 may be
caused by blunt object and injuries no. 2 and 4 may
be caused by sharp-edged weapon and on
Page 118

28.05.2010 he had given statement to I.O. that
injury no. 1 and 3 may be caused by golf stick and
injury no. 2 and 4 may be caused by small surgically
sharp weapon. Since the earlier investigating
officers had not especially asked him about the
weapons which were possibly used and therefore,
he could not tell about them to previous
investigating officers. P.W.-36 Dr. Naresh Raj has
also deposed that injury nos. 1, 2, 4 and 5 are
possible to have been caused by dragging on hard
surface, injury no. 3 may be caused by sharp-edged
weapon like scalpel and injury nos. 6 and 7 may be
caused by blunt object like golf stick. If Dr. Raj has
not stated on 25.07.2008 to the investigating officer
Mr. Sachan that injury nos. 3, 6 and 7 have been
caused by surgical scalpel and golf stick respectively
then on that ground his testimony cannot be
disbelieved. In State of H.P. Vs. Manohar Thakur
1998 (37) ACC 429 (SC), it has been held that
even if some details are missing in statement to I.O.
then it cannot be ground to reject the testimony of
the witness. If golf stick and surgical scalpel were
not sent to Dr. Dohre and Dr. Raj then on account of
this failure or omission it cannot be said that above
injuries of both the deceased were not caused by
golf stick and scalpel. In State of U.P. Vs. Ashok
Kumar Srivastava AIR 1992 SC 840 it was held
that prosecution is not required to meet any and
every hypothesis put forward by the accused. It is
important to mention that murders of both the
deceases were committed by the accused persons
and at that time no third person was present there
and therefore, it is within their especial knowledge
Page 119

as to with which weapons the injuries were inflicted
upon the deceased persons. The court is not bound
by the opinions of the doctors, because after all
medical evidence is basically opinionative and is of
advisory character. The opinion of a doctor cannot
be treated as gospel truth and last word. D.W.-4 Dr.
R.K. Sharma has admitted in his cross-examination
that if the neck of any person is slit with intent to kill
him it will not be necessary to cut the neck layer by
layer. He has also admitted that if the size of injury
on the head is similar to the dimensions of the golf
stick then this injury has been caused by golf stick
or not depends on depressed fractures but he had
not seen the injuries of both the deceased. He has
further stated that the injury as shown in photo
material Exhibit-3 above the eye-brow is in OVOID
form and the other injury below eye-brow is
triangular and oozing of blood is not seen. A specific
suggestion has been given before this witness that
small cut is not possible by kukri and only chopped
wound will be inflicted by kukri. The evidence of Dr.
Sharma is not reliable because he has displayed in
his website that “lawyers can have our services for
their clients for better interpretation of scientific
evidence against or for their clients……..” Thus it
becomes clear that he gives report in favour of the
person from whom he charges fees irrespective of
the merit of the case. However, looking to the
nature and dimension of injury nos. 1 and 3 of Ms.
Aarushi and injury nos. 6 and 7 of Hemraj it is
possible that these injuries may have been caused
by some blunt object like golf stick and injury nos. 2
& 4 of Ms. Aarushi and injury no. 3 of Hemraj are
Page 120

possible to be caused by any sharp-edged weapon
like scalpel and injury nos. 1, 2, 4 and 5 of Hemraj
are possible to be caused by dragging. Dragging
marks depend on the manner in which the deceased
was carried. There can be no cut and dried formula
that dragging marks will come on a particular part of
the body.
P.W.-26 Deepak Kumar Tanwar, Senior
Scientific Officer, Grade-1, C.F.S.L., New Delhi has
deposed that on 10.11.2009 one parcel was sent by
biology division to his division and its seal was
intact. This parcel was opened on 15.04.2010 and
12 golf sticks were found which were marked as
Exhibit-1 to 12. He has further stated that he has
examined the golf sticks in terms of letter dated
30.10.2009 and 22.06.2010 of S.P., C.B.I., Dehradun,
Camp Office, New Delhi and prepared report dated
13.07.2010 Exhibit-ka-53 and diagrams collectively
marked as Exhibit-ka-54. He has further deposed
that length of stick Exhibit- 5 is 96 cm., length of
head on frontal side is 8 cm., 5.2 cm., 7.5 cm. and
2.5 cm. and on back side it is 7.5 cm. and 3.00 cm.
There is a margin on back side whose breadth is
0.50 cm. Tracing measurement of head of Exhibit-5
on frontal side is 5.2 cm. and 8.00 cm. and on back
side 7.5 cm. and 3.4 cm. He has also stated that
there is a margin on back side whose breadth is
0.50 cm. Likewise, length of stick Exhibit-3 is 104
cm. length of head on frontal side is 8 cm., 2.5 cm.,
5.5 cm. and 2.5 cm. Tracing measurement of head
of Exhibit-3 was 8 cm. and 3.4 cm. In the report
Exhibit-ka-53 it has been mentioned that Exhibit-5 is
a golf stick which bears the engraved
Page 121

writings/markings “4GP OVERSIZE GOLF PAK XL 02”
and the stick bears the printed writings “GP ACTION
PLUS PRECISION GRAPHITE BY GOLF PAK MID FLEX”.
It has also been written in the said report that golf
sticks (golf club and iron putter) marked Exhibits- 1
to 12 reveal that negligible amount of soil was found
sticking in the cavity of the numbers engraved on
bottom portion of the head of the golf sticks (golf
clubs) marked Exhibit 3 & 5 in comparison to the soil
sticking in the cavity of the nos. engraved on bottom
portion of the heads of golf sticks (golf clubs and
iron putter) marked Exhibits- 1, 2, 4, 6, 7, 8, 9, 10,
11 and 12. In the postmortem examination report of
Ms. Aarushi Exhibit-ka-3 ante-mortem injury no. 3
has been shown as lacerated wound on left parietal
region 8 cm. X 2 cm. In the postmortem
examination report of Hemraj Exhibit-ka-88 antemortem
injury no. 7 has been shown as lacerated
wound 8 cm. X 2 cm. into bone deep on the occipital
region 1 cm. below injury no. 6. Thus the
measurement of frontal head of stick Exhibit-5
tallies with the measurements of ante-mortem injury
no. 3 of Ms. Aarushi and injury no. 7 of Hemraj. In
view of this clinching scientific evidence, it is
conclusively proved that lacerated wounds of both
the deceased were caused by golf stick. The incised
wounds of both the deceased are of same pattern
and cannot be caused by kukri and rather possible
to have been caused by a small sharp-edged
instrument like scalpel. In view of above findings it
can safely be concluded that injuries as mentioned
above were caused by golf club and scalpel. D.W.-2
Dr. Amulya Chaddha has also admitted that for oral
Page 122

surgery 15 no. blade is required by dentist and
during the course of study use of this blade is
taught. He has also admitted that if apart from gum
this blade is used on other part of the body then
that part will be cut. P.W.-30 Dr. Dinesh Kumar has
stated in his evidence that for dissection scissors,
forceps, needles and scalpel are used by B.D.S.
students. It is to be noted that both the accused are
dentists by profession and therefore, keeping
scalpel at home and use thereof cannot be ruled
out. It is also significant to note that Dr. Rajesh
Talwar has admitted in his written statement under
section 313 Cr.P.C. that he was the member of Golf
Club, N.O.I.D.A. Moreover, the golf sticks were
produced by him, which were in his possession. He
has also admitted that before his car was sent for
servicing two golf sticks were taken out from the car
by his driver Mr. Umesh Sharma and were kept in
the room of Hemraj. One such stick could be seen in
the photograph no.-21 of D-98. The other stick was
found from loft while cleaning the flat. P.W.-39 Mr.
A.G.L. Kaul has deposed that Mr. Ajay Chaddha has
sent an e-mail to him intimating therein that one
golf stick was recovered by him and Dr. Nupur
Talwar from the attic opposite to the room of Ms.
Aarushi during cleaning of the flat. P.W.-31 Mr. Hari
Singh has stated that on 18.06.2008 he has seized
five articles through seizure memo Exhibit-ka-60 in
which Dr. Nupur Talwar and her relative Mr. Ajay
Chaddha had appended their signatures. Both the
accused have stated in their examination under
section 313 Cr.P.C. that Mr. Ajay Chaddha has not
sent any e-mail on their behalf which cannot be
Page 123

believed in the face of the statement given by
P.W.-39. P.W.-31 Mr. Hari Singh has stated that Mr.
Ajay Chaddha is a relative of Talwars. Mr. Ajay
Chaddha has not been produced to rebut the
evidence of P.W.-31 and P.W.-39.
Mr. Mir with his suasive reasoning has laid
criticism that test identification of golf club has not
been made in the presence of a Magistrate and
therefore, test identification proceedings conducted
by Mr. A.G.L. Kaul carry no significance in the eye of
law. It was also submitted that golf clubs were
wrapped with a cloth on the middle portion and
heads and handles of clubs were exposed and not
sealed at all and therefore, possibility of tempering
or cleaning at the end of C.B.I. cannot be ruled out.
These arguments are more factitious than genuine
and hardly carry any conviction and therefore,
cannot be accepted keeping in view the facts and
circumstances of the case. P.W.-32 Richhpal Singh
has stated that on the direction of Mr. Kaul he had
taken 12 golf clubs and their case on 30.10.2009
from Dr. Rajesh Talwar and seizure memo Exhibitka-61
was prepared by his companion inspector
Arvind Jaitely. In Exhibit-ka-61 it has specifically
been mentioned that all the golf clubs and case
have been sealed separately with a cloth and
sealing wax. P.W.-32 has stated at page no. 3 of his
cross-examination that all the golf sticks were
wrapped with a cloth in the middle portion and it
was sealed and therefore, this argument is found to
be completely fallacious that golf clubs were not
sealed. If the test identification was not conducted
in the presence of a Magistrate then it will not affect
Page 124

the prosecution case. In Mahabir Vs. State of
Delhi AIR 2008 SC 2343 after following the law as
laid down in Matru Vs. State of U.P. (1971) 2
SCC 75 and Santokh Singh Vs. Izhar Hussain
(1973) 2 SCC 406, it was held that test
identification parade does not constitute
substantive evidence. Test identification can only be
used as corroborative of statement in court. It was
further held that the test identification parade
belongs to stage of investigation. T.I. Parades are
essentially governed by section 162 Cr.P.C. Failure
to hold same would not make inadmissible evidence
of identification in court. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. The same view was
earlier taken in Kanta Prasad Vs. Delhi
Administration AIR 1958 SC 350, Vaikuntana
Chandrappa and others Vs. State of A.P. AIR
1960 SC 1340, Budh Sen Vs. State of U.P. AIR
1970 SC 1321 and Rameshwar Singh Vs. State
of J & K AIR 1972 SC 102. In 1998 SCJ 354 it was
held that T.I. parade is only corroborative evidence
and substantive evidence is statement of witness
made in the court. The purpose of T.I. parade is to
test the observation, grasp, memory, capacity to
recapitulate what he has seen earlier. In Jadunath
Singh Vs. State of U.P. AIR 1971 SC 363 it was
held that absence of test identification is not always
fatal. It appears proper to mention here that golf
clubs were not the stolen property for which test
identification must have been essential. They were
also not recovered by the police and even no F.I.R.
regarding their theft, heist and dacoity was lodged.
Page 125

In State of Assam Vs. Upendra Nath Rajkhona
1975 Cr.L.J. 354 it was held that identification of
washer-man’s mark on the clothes found on the
dead body by the washer-man was not necessary.
In Mulla and others Vs. State of U.P. AIR
2010 SC 942, it has been held that failure to hold
parade does not render evidence of identification in
court inadmissible. However, evidence relating to
identification made for first time in court should not
form basis of conviction and can only be used as
corroborative evidence. In Sheo Shankar Singh
Vs. State of Jharkhand 2011 Cr.L.J. 2139 it has
been held that failure to hold test identification
parade does not weaken identification in the court.
In Shyam Ghosh Vs. State of West Bengal 2012
AIR SCW 4162 it was held that Cr.P.C. does not
oblige the investigating agency to necessarily hold
the test identification parade which has been
followed in Ravi Kapur Vs. State of Rajasthan
AIR 2012 SC 2986. In Kunjuman @ Unni Vs.
State of Kerala 2013 (2) Allahabad Criminal
Rulings 1324 (SC), it has been held that failure
to hold T.I.P. is not fatal to the prosecution.
Absence of T.I.P. makes no difference to the
prosecution case. The same view was iterated
earlier in Vijay @ Chinee Vs. State of M.P.
(2010) 8 SCC 191.
P.W.-15 Umesh Sharma was the driver of Dr.
Rajesh Talwar and still he is the satellite of Dr.
Rajesh Talwar and because of allegiance he has
turned hostile and resiled from his previous
statement given to the investigating officer.
Nevertheless, he has admitted that 3 to 4 months
Page 126

prior to this occurrence he had kept two golf sticks,
mopping cloth and bucket in the servant quarter of
flat no. L-32 after taking them out from Santro car
which was sent for servicing. When this witness was
declared hostile and the learned prosecutor was
permitted to cross-examine him and during the
course of cross-examination he was shown golf club
nos. 4 and 5 then he admitted that these sticks were
kept by him in the room of Hemraj. In identification
memo Exhibit-ka-18 it has been written that the
contents of the memo have been explained in
Hindi to Mr. Umesh Sharma in presence of the
independent witness but he has falsely deposed that
it was not explained to him in Hindi. He has given
false statement that on that day he was having
pains in ear and therefore, could not properly listen.
His statement that on that day he had visited a
doctor of E.N.T. for treatment of his ear is also found
to be false because the prescription of the doctor
which he had shown in the court was of 20.10.2009
while the identification proceedings were