CIVIL

Arushi Murder Case page 4

conducted on 02.08.2010. He has further stated that
he does not remember as to whether he had visited
E.N.T. Specialist on 02.08.2010. He has admitted
that at the time of preparation of identification
memo he had not told Mr. Kaul that he is suffering
from ear pain and is hard of hearing. He has feigned
ignorance that the identification proceedings were
conducted in the presence of witness Laxman Singh.
It is well-settled law that the evidence of a hostile
witness does not get effaced and his statement to
the extent of supporting the prosecution case can
be relied upon. In Soma Bhai Vs. State of Gujarat
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AIR 1975 SC 1453, State of U.P. Vs. Ramesh
Prasad Misra (1996) 10 SCC 360, Sathya
Narayan Vs. State 2013 (80) ACC 138 (SC),
Ramesh Harijan Vs. State of U.P. (2012) 5 SCC
777, Gura Singh Vs. State of Rajasthan AIR
2001 SC 330, B.S. Shinde Vs. State of
Maharashtra (2002) 7 SCC 543, Gagan Kanojia
Vs. State of Punjab (2006) 13 SCC 516,
Sarvesh Narain Shukla Vs. Daroga Singh
(2007) 13 SCC 360, Bhagwan Singh Vs. State
of Haryana (1976) 1 SCC 389, Rabindra Kumar
Dey Vs. State of Orissa (1976) 4 SCC 233, Syad
Akbar Vs. State of Karnataka (1980) 1 SCC 30,
Khujji @ Surendra Tiwari Vs. State of M.P.
(1991) 3 SCC 627 (3JJ), T. Shankar Prasad Vs.
State of A.P. 2004 Crl. J. 884: (2004) 3 SCC
753, Muniappan Vs. State of T.N. (2010) 9 SCC
567, Rajendra & others Vs. State of U.P. 2009
(2) JIC 356 (SC-3JJ), Param Jeet Singh @
Pamma Vs. State of Uttrakhand (2010)10 SCC
439, Himanshu @ Chintu Vs. State (N.C.T. of
Delhi) (2011) 2 SCC 36, Ram Krushna Vs. State
of Maharashtra 2007 (58) ACC 604 (SC), Bhajju
@ Karan Singh Vs. State of M.P. (2012) 4 SCC
327, Gudu Ram Vs. State of H.P. 2013 (1) SCCR
46, M. Sarvana @ K.D. Sarvana Vs. State of
Karnataka 2012 Cr.L.J. 3877, Govind Raju @
Govind Vs. State (2012) 4 SCC 722, Yomesh
Bhai Pran Shanker Bhatt Vs. State of Gujarat
(2011) 6 SCC 313, Koli Lakhmabhai Chanabhai
Vs. State of Gujarat Judgment Today 1999 (9)
SC 133, Prithi Vs. State of Haryana 2011 (72)
ACC 338, Sidharth Vashistha @ Manu Sharma
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Vs. State (N.C.T. of Delhi) 2010 (69) ACC 833
(SC), Radha Mohan Singh @ Lal Saheb &
others Vs. State of U.P. (2006) 2 SCC 450 (3JJ),
State of Rajasthan Vs. Bhawani & others AIR
2003 SC 4230 (3JJ), Subba Singh Vs. State
(2009) 6 SCC 462, Ramappa Halappa Pujar &
others Vs. State of Karnataka (2009) 1 SCC
(Crl.) 250, Swami Prasad Vs. State of M.P.
(2009) 2 SCC (Crl.) 354, Jodh Raj Singh Vs.
State of Rajasthan 2007 (58) ACC 614,
Gurpreet Singh Vs. State of Haryana 2002 (45)
ACC 934 (SC), Sat Paul Vs. Delhi
Administration AIR 1976 SC 294, Bhagwan
Dass Vs. State (N.C.T.) of Delhi AIR 2011 SC
1863, Haradhan Das Vs. State of West Bengal
2013 (1) ACR 1162 (SC) and Lahu Kamlakar
Patil & others Vs. State of Maharashtra (2013)
6 SCC 417, it has been held that courts are entitled
to rely upon such portion of evidence of prosecution
witness who has been permitted to be crossexamined
by the prosecution, as supports the
prosecution case. P.W.-16 Laxman Singh who is
quite disinterested witness has also stated that
Umesh Sharma had taken out golf sticks no. 4 and 5
although he has stated that these sticks were taken
out from bag. The fact remains that golf sticks no. 4
and 5 were taken out by Umesh Sharma. It is also
important to mention here that the accused Dr.
Rajesh Talwar has not taken plea that golf sticks do
not belong to him.
It is the contention of the learned counsel for
the accused that Malkhana (godown) Register has
not been produced nor incharge Malkhana was
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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 Mr. D.K.
Tanwar. Dilating his argument it was submitted that
report dated 07.01.2010 Exhibit-kha-37 reveals that
golf clubs were received in the biology division of
C.F.S.L. Lab on 30.10.2009 and they were examined
by Dr. B.K. Mohapatra and returned to the
investigating officer on 07.01.2010 but Exhibit-ka-53
dated 13.07.2010 of D.K. Tanwar (physics division) it
has been shown that the golf-clubs were received
from biology division on 10.11.2009 but they were
opened on 15.04.2010 and returned to forwarding
authority on 13.07.2010 and therefore, if the biology
division returned the Exhibits on 07.01.2010 to the
forwarding authority then how the same Exhibits
without any forwarding letter proving chain of
custody were sent again to the physics division and
no evidence has been adduced to show as to when
the forwarding authority after 07.01.2010 re-sent
the articles to the physics division of C.F.S.L. and in
the circumstances it was imperative to produce
Malkhana Register and also to examine officer-incharge,
Malkhana, C.B.I. which has not been done
and therefore chain of custody of golf-clubs is not
proved. I am unable to subscribe to the contention
of the learned counsel. The golf-clubs were seized
through production-cum-seizure memo Exhibit-ka-61
on 30.10.2009 and on the same date these golfclubs
were sent to C.F.S.L. by the forwarding
authority as is evident from perusal of Exhibitkha-37.
In this report it has also been mentioned at
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para 8.3 that regarding query no. 2 the report in
original from physics division of this laboratory shall
be submitted after completion of the examinations
in the physics division of this laboratory. This shows
that in the meantime Dr. Mohaparta forwarded the
Exhibits to the physics division and that is the
reason that P.W.-26 D.K. Tanwar has mentioned at
page no. 2 of his report Exhibit-ka-53 that one
sealed parcel was received from biology division on
10.11.2009 and it was sealed by the seals of biology
division and the seals on parcel were found intact.
P.W.-26 has also testified this fact by stating on oath
about this fact. He has also stated that this
parcel was opened on 15.04.2010 and report of
examination was given on 13.07.2010. In the report
dated 07.01.2010 Exhibit-kha-37 it has been
mentioned at the bottom that the remnants of the
Exhibits with original packing have been sealed in
two parcels and handed over to the forwarding
authority. P.W.-6 Dr. B.K. Mohapatra has not been
cross-examined as to whether only his report was
forwarded by the director or whether along with this
report the Exhibits were also sent. P.W.-26 D.K.
Tanwar has stated that one sealed parcel was
received from biology division on 10.11.2009 and it
was sealed by the seals of biology division and the
seals on parcel were found intact and as such in the
circumstances there was no need to produce the
Malkhana Register or to examine officer-in-charge
Malkhana, C.B.I. and tampering of golf-clubs is not
proved. Therefore, the
argument of learned counsel is found
impuissant. The accused cannot take any benefit
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from the case laws cited by their learned counsel
which are based on different contextual facts,
settings and circumstances.
The next submission of Mr. Mir is that the
prosecution has made a futile attempt to bolster its
case by alleging that the internet router installed at
the place of crime showed start and stop activity
throughout the whole night suggesting that the
accused persons were awake but from the evidence
on record this fact is also not proved and evidence
given in this respect by P.W.-17 Deepak Kanda,
P.W.-18 Bhupender Singh Awasya and the
documents Exhibit-ka-19, ka-20, ka-21 and ka-22
relied upon by the prosecution are not reliable
because P.W.-17 Deepak Kanda has stated in his
cross-examination that he does not know whether
there was a modem or a wi-fi; he was never taken to
the place where the modem was installed; he does
not know that his company had installed the modem
along with which a wireless router was also installed;
he does not know that if the laptop or desktop
computer are switched off then also there will be
data transfer between the router/modem and I.S.P.
which are switched on; he cannot say whether the
log provided to him was a detailed one or not; he
has himself admitted that the view of technical team
was obtained according to which there were four
main reasons for start and stop activity of internet-
(i) physical closing of dialer (ii) physical closing of
modem/router (iii) power recycling of modem and
(iv) network failures and no member of technical
team was examined and therefore his evidence is
nothing but on dit. Moreover, this witness has also
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admitted that even from 02:04:35 hours till 10:16:19
hours on 16.05.2008 the usage pattern was similar
and start/stop activity was also seen from 02:04:35
hours (in the night) to 13:11:44 hours on 16.05.2008
and thus, physical operation by the accused persons
is not established; he has further argued that
P.W.-18 has also stated in his cross-examination that
he never went to L-32, Jalvayu Vihar to make
physical inspection; the router, modem, router log or
modem log, laptop log or the desktop log were
never sent to him; he cannot say whether the logs
supplied to him were complete or not; if the router
or modem is switched on then log to that extent
shall also be available and upon examination of
router log it can be said when the router was
switched on and switched off and he had written to
the investigating officer that computer internet
activity log, modem and router log and detailed log
of I.S.P. be provided to him but not made available
which were essential for complete analysis of these
logs and if the investigator had sent the aforesaid
details then better analysis could have been done.
These arguments are specious and hence
cannot be accepted. The statements of the accused
under section 313 Cr.P.C. that they went to sleep at
about 11.30 P.M. on 15.05.2008 are found to be
false. P.W.-17 Deepak Kanda has clearly deposed
that user ID DSL01205316388 is registered in the
name of Nupur Talwar R/o L-32, Sector-25 N.O.I.D.A.
and its land-line telephone no. is 01204316388 and
he had supplied the logs of above mentioned broad
band from 01.05.2008 to 16.05.2008 through e-mail
to Mr. Neelabh Kishore S.P., C.B.I., Dehradun. He has
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further stated that as per electronic record internet
activity started on the said DSL ID on 15.05.2008 at
23:00:50 hours and it lasted up to 02:04:30 hours on
16.05.2008 and thereafter again it started on
16.05.2008 at 02:04:35 hours and it continued up to
03:02:16 hours and again it started at 03:28:36
hours and lasted 03:34:07 hours and then it again
started at 03:41:01 hours and remained active up to
03:43:32 hours and then started at 06:01:51 hours
and stopped at 06:04:55 hours. He has further
stated that according to itemized bill internet of
11835 kilo-bytes was used on 15.05.2008 at
23:00:50 hours and then on 16.05.2008 internet 46
kilo-bytes was used at 02:04:35 hours and then
again on 16.05.2008 at 06:01:51 hours 3 kilo-bytes
internet was used. He has further stated that he has
sought opinion from technical team about the start
and stop activity of internet and the technical team
has opined that stop and start activity may be due
to (i) physical closing of dialer (ii) physical closing of
modem/router (iii) power recycling of modem and
(iv) network failures. Nothing has been suggested
before this witness that start and stop activity was
due to network failures in that night. This witness
has also stated that the aforesaid data was obtained
by IT and Technical Team from server which is being
preserved for three years. If this witness has stated
that he does not know whether there was a modem
or a wi-fi; he was never taken to the place where the
modem was installed; he does not know that his
company had installed the modem along with which
a wireless router was also installed; he does not
know that if the laptop or desktop computer are
switched off then also there will be data transfer
between the router/modem and I.S.P. which are
switched on and he cannot say whether the log
provided to him was a detailed one or not then on
that ground it cannot be said that in the night of
15/16.05.2008 the internet was not used at the
times as disclosed by this witness in his
examination-in-chief because start and stop activity
is not possible without the physical intervention and
the data used is not possible without surfing on
internet and hence in the circumstances if any
member of technical team has not been examined,
it will have no impact.
P.W.-18 Bhupender Singh Awasya, Scientist-C
of C.E.R.T.-In Department of Information
Technology, Govt. of India has also deposed that
logs of DSL Modem No. 01205316388 were sent for
analysis by S.P., C.B.I., Dehradun and then he and
Mr. Anil Sagar, Director, CERT-In have analyzed the
logs and then report/letter Exhibit-ka-23 was
prepared and signed by Mr. Anil Sagar. In Exhibitka-23
it has been mentioned that time gaps
between two sessions depicts inactivity or no
internet connection establishment between the CPE
(Customer Premises Equipment) device and the ISP
(Internet Service Provider); Longer time gaps
indicates that a) user has consciously disconnected
the connection, b) there is network disruption such
as unavailability of telecom carrier and unavailability
of services at ISP end. This is the period when no
internet connection is established by the CPE
device; retrieval of names/identities of sites visited
by the user and/or downloaded packet details during
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a particular session can be established by the
respective logs and packet capture maintained by
the ISP. Both the technologies come under real-time
monitoring category. Logs and/or packet details are
only available when it is being captured during the
session in real-time. It is neither available nor can be
regenerated as the session expires or after the
session is terminated. If P.W.-18 has stated in his
cross-examination that he never went to L-32,
Jalvayu Vihar to make physical inspection; the
router, modem, router log or modem log, laptop log
or the desktop log were never sent to him; he
cannot say whether the logs supplied to him were
complete or not; if the router or modem is switched
on then log to that extent shall also be available and
upon examination of router log it can be said when
the router was switched on and switched off and he
had written to the investigating officer that
computer internet activity log, modem and router
log and detailed log of ISP be provided to him but
not made available which were necessary for
complete analysis/investigation of these logs then
on that ground it cannot be held that the internet
was not used in the night of 16.05.2008 and no start
and stop activity of router is possible without human
intervention. Both the accused have admitted in
their statements under section 313 Cr.P.C. that at
about 11.00 P.M. in the night Dr. Nupur Talwar went
in the Aarushi’s room to switch on the internet
router and then Dr. Rajesh Talwar started working
on internet on his laptop and they went to sleep
around 11.30 P.M. It is very important to mention
here that none of the accused has stated in their
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detailed written statements under section 313
Cr.P.C. as to when the router were switched off.
Even in oral examination under section 313 Cr.P.C.
they have not stated that when the router was
switched off. In that very night the router or laptop
were in their possession and they have especial
knowledge about the mode, manner and functioning
of the router and therefore, it was for them to
explain under section 106 of Evidence Act to satisfy
the court regarding the start and stop activity of
internet router. In Rattan Singh Vs. State of H.P.
(1997) 4 SCC 161 it was held that the examination
of accused under section 313 Cr.P.C. is not a mere
formality. Answers given by the accused to the
questions put to him during such examination have
a practical utility for criminal courts. Apart from
affording an opportunity to the delinquent to explain
incriminating circumstances against him, they would
help the court in appreciating the entire evidence
adduced in the court during trial. In this view of the
matter, it is established that in the night of
15/16.05.2008 internet was used throughout the
whole night intermittently and the accused were
awaken. It should be borne in mind that both the
accused are acquainted with the internet functioning
and therefore, they may have continued with the
start and stop activity of internet router till 13:11:44
hours on 16.05.2008 with intent to confuse and
camouflage the investigating agency as also to
create evidence in their favour.
The next submission of learned counsel for the
accused is that the presence of P.W.-4 Sanjay
Chauhan at the place of occurrence in the morning
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of 16.05.2008 has not been proved and therefore,
his statement that he had seen blood stains on the
stairs as well as on the railing is not credible and
hence his evidence carries no weight. It was also
submitted that the investigating officer Mr. M.S.
Phartyal has admitted in his cross-examination that
he had gained knowledge from some witness that
Sanjay Chauhan was also present at the crime scene
and therefore, his statement was recorded but on
this aspect he does not want to peruse the case
diary. It was further added that evidence of
P.W.-13 Dr. Rajiv Kumar Varshney, P.W.-14
Dr. Rohit Kochar, P.W.-7 K.K. Gautam, P.W.-10 Bharti
Mandal and P.W.-29 Mahesh Kumar Mishra are
contradictory as some of the witnesses have stated
that they had seen the blood stains on the stairs and
railing while others have denied this fact and
therefore, in view of the maddening contradictions,
the entire warp and woof of the prosecution story is
rendered brittle.
I do not agree with the submissions of the
learned counsel. P.W.-4 Sanjay Chauhan is an officer
of Provincial Civil Service and no animus with this
witness has been established by the accused. He is
also completely disinterested witness and therefore,
his evidence cannot be viewed with a lens tinged
with suspicion. He was posted as Additional
Executive Magistrate as well as a staff officer in the
office of District Magistrate, Gautambudh Nagar on
the relevant date. He has categorically stated on
oath that when on 16.05.2008, when he was
returning to his residence after morning walks and
came near the curve of sector-25 N.O.I.D.A. then
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saw the presence of police and government vehicles
there and thought that there is some problem of law
and order and therefore, he went inside sector-25
where he gained knowledge that a murder has been
committed in flat no. L-32, Jalvayu Vihar and
therefore, he reached there at about 7.30-7.40 A.M.
and went inside the room of Ms. Aarushi where she
was found dead and her dead body was covered
with a white sheet, her trouser was just below the
waist. He has further stated that some police
personnel were seen on the stairs and therefore, he
also climbed 2-3 steps and had seen blood stains on
the stairs as well as the railing and then he came
back thinking that crime scene may be disturbed. He
has also stated that he had perceived that in the
upstairs there were blood stains but not in the down
stairs. He has stood the test of grueling crossexamination
and nothing could be elicited to doubt
his presence at the crime scene in the morning of
16.05.2008 and discredit his testimony. He has also
stated that he remained there at the place of
occurrence for about an hour. His evidence cannot
be castigated that stadium in sector 25 N.O.I.D.A. is
about 28 km. away from his residence and it is not
possible to come for morning walks after covering
such a long distance. He has assigned reasons for
taking morning walks in the N.O.I.D.A. Stadium by
stating that during those days Greater N.O.I.D.A.
was not developed and keeping in view the nature
of his job, it was not safe for him to have morning
walks there.
P.W.-13 Dr. Rajiv Kumar Varshney has also
testified that on receiving a message about the
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murder of Ms. Aarushi he went there at about 9.00
A.M. but by mistake he climbed up to the terrace
door where in the door and lock he found blood
stains and then he located the flat of Dr. Rajesh
Talwar and came inside where Dr. Rohit Kochar and
his wife met him to whom he told about the
presence of blood stains on door and lock of the
terrace. Thereupon, he came with Dr. Rohit Kochar
near the terrace door and showed him blood stains.
He has further stated that on minute observation
blood stains were seen in the stairs. Meanwhile, a
policeman also came there and he was also shown
the blood stains on the stairs. Thereafter, both of
them came inside the flat and Dr. Rajesh Talwar
came out of the flat and went towards the stairs but
immediately came back. It is to be noted that he has
been the colleague of Dr. Rajesh Talwar in ITS
Dental College N.O.I.D.A. and both of them were in
the same faculty. Thus, there is no reason to doubt
on the testimony of this witness, particularly when
he was the colleague of Dr. Rajesh Talwar.
P.W.-14 Dr. Rohit Kochar was also the
colleague of Dr. Rajesh Talwar in ITS Dental College,
N.O.I.D.A. and since 2007 he was acquainted with
Dr. Rajesh Talwar, he has deposed that on
16.05.2008 at about 8.00-8.15 A.M. he received a
telephone call from one friend who informed him
about the murder of Ms. Aarushi and then he along
with his wife Dr. Preeti Kochar went to the house of
Dr. Rajesh Talwar where a large number of persons
were present there. After about 45-60 minutes Dr.
Rajiv Kumar Varshney came there and told him that
by mistake he had gone up to the terrace door and
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had witnessed blood stains on handle of terrace
door and floor and then he went up with him and
found foot prints of red colour which appear to have
been cleaned and blood stains on the handle of
terrace door. He has also stated that by that time
some persons also came there and one of them was
a policeman, who was also shown the blood
stains. Despite incisive cross-examination nothing
favourable could be extracted from this witness and
therefore, there is no reason to disbelieve his
testimony. If certain facts on trivial and non
significant matters have not been stated to the
investigating officer(s) by P.W.-13 & 14 in their
statements under section 161 Cr.P.C. then by dint of
that their testimony cannot be discarded. It is also
important to mention that both P.W.-13 and P.W.-14
have given their statements under section 164
Cr.P.C. before the learned Metropolitan Magistrate,
New Delhi on 15.12.2010 vide Exhibit-ka-16 and
ka-17. In Shyam Sunder Vs. State of
Chhattisgarh (2002) 8 SCC 39 it has been held
that when an incident is narrated by the same
person to 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 had really witnessed what he was narrating.
Ex-cathedra, if Dr. Rohit Kochar has stated before
this court that he had seen blood stains only on
handle of terrace door and floor and has stated
before the Metropolitan Magistrate that blood stains
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on the door, handle and floor were seen then only
on that ground his testimony cannot be held to be
unreliable. Possibility of cleaning the blood stains on
stairs and railing by the accused after commission of
the crime in the night cannot be ruled out as they
had enough time and opportunity to do so.
P.W.-7 K.K. Gautam has also stated that on
17.05.2008 when he went to the flat of Dr. Rajesh
Talwar alongwith Dr. Sushil Chaudhary then Dr.
Dinesh Talwar met them there and thereafter took
them the to the rooms of Ms. Aarushi and Hemraj
and the stairs leading to terrace and showed blood
stains on stairs, railing, lock, latch and door of
terrace and then on the request of Dr. Dinesh Talwar
he telephoned S.P. City Mr. Mahesh Mishra and told
him about the blood stains and for opening the
terrace lock. On this part of statement, this witness
has not been cross-examined at all and therefore,
his testimony on this aspect goes unchallenged. In
Bal Krishna Vs. State 1977 Crl. J. 410, State of
U.P. Vs. Nahar Singh 1998 Cr.L.J. 2006 (SC)
and State of U.P. Vs. Anil Singh 1989 SCC (Crl.)
48, it has been held that where a witness had not
been specifically cross-examined on a particular
question, the court cannot presume something
adverse to the witness in relation to that question
unless his attention is specifically drawn to it. In
Laxmi Bai (deceased) through LRs and others
Vs. Bhagwant Buva (deceased) through LRs
and others (2013) 4 SCC 97, it has been held that
if a party intends to impeach a witness, he must
provide adequate opportunity to the witness in the
witness box to give a full and proper explanation. In
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that case the law as given in Khem Chand Vs.
State of H.P. AIR 1994 SC 226, State of U.P.
Vs. Nahar Singh (1998) 3 SCC 561, Rajender
Pershad Vs. Darshana Devi (2001) 7 SCC 69
and Sunil Kumar Vs. State of Rajasthan (2005)
9 SCC 283 was relied on.
It is the contention of Mr. Mir that if there could
have been blood stains on stair and railing then
certainly the same must have been seen by P.W.-10
Bharti Mandal when she had gone up the stairs after
pressing the call-bell on the second occasion but she
has also nowhere stated that blood stains were seen
by her and as such the evidence of Sanjay Chauhan,
Dr. Rajiv Kumar Varshney, Dr. Rohit Kochar and K.K.
Gautam that they had seen the blood stains proves
to be false. This argument has no legs to stand. This
witness has also not been cross-examined on the
point as to whether she had seen any blood stains
when going up the stairs. The investigating officers
have also not specifically questioned this witness of
having seen any blood stains on stairs or not. Had
she been questioned on this point and she might
have replied that she had not seen any blood stains
on the stairs then the matter would have been
otherwise. As such in the circumstances the
evidence of P.W.-4, 7, 13 & 14 is not discredited.
In furtherance of his arguments it was also
pointed out by the learned counsel that P.W.-34
Dataram Naunoria, S.H.O. of Police Station,
Sector-20 has also stated that when he went
through the stairs to the roof-door, he found blood
marks on the lock of the terrace door but no blood
stains on stairs, railing and roof near the door and
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red coloured foot prints and thus his evidence
contradicts the claim of P.W.-4, 13 and 14. Likewise,
P.W.-29 Mahesh Kumar Mishra the then S.P., City
has also stated before this court that lock of the
terrace door was having blood marks but the stairs
did not bear any blood marks. Thus, his testimony
demolishes the claim of P.W.-4, 13 and 14. It was
also submitted by the learned counsel that P.W.-1
Constable Chunni Lal Gautam too has stated that on
16.05.2008 he went up the stairs to the roof door,
examined the door, the latch and the lock but did
not observe any blood stains on stairs or railing nor
any blood stained foot prints as claimed by P.W.-4,
13 & 14. It was also submitted that P.W.-12 Punish
Rai Tandon has also stated that he had gone up the
stairs two times on 16.05.2008 but he also did not
observe any blood stains on stairs and railing and
D.W.-5 Vikas Sethi has also stated that when he
went to the stairs up towards the roof he had not
seen blood stains at any place and S.I. Sunita Rana
gave her statement to the assisting investigating
officer Pankaj Bansal that on 16.05.2008 there was
no blood stains on the stairs at all and thus in view
of the inherent contradictions as pointed out above
no reliance can be placed on the evidence of these
witnesses.
I find it difficult to accede to the arguments of
the learned counsel for the accused. As already
stated above P.W.-4 Sanjay Chauhan, P.W.-13 Dr.
Rajiv Kumar Varshney and P.W.-14 Dr. Rohit Kochar
have categorically stated that they had seen the
blood stains on the stairs, lock, handle and door of
the terrace. P.W.-4 has also stated that he had seen
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blood stains on railing. P.W.-13 & 14 who are
medical professionals have stated that on
meticulous examination it was found that blood
stains were visible and therefore, in view of this
evidence it is proved that blood stains were there on
stairs and railing, lock, handle and door of terrace.
P.W.-1 Constable Chunni Lal remained busy in taking
finger-prints from various places. He has nowhere
specifically stated that he had not seen the blood
stains. He has simply stated at page no. 8 of his
cross-examination that he does not remember that
when he climbed the stairs and had gone to the roof
there were two doors or not across the stairs.
P.W.-12 Punit Rai Tandon was has stated that when
he went inside flat no. L-32 and came to know about
the occurrence then he came back from there and
informed the security personnel about the incident
and when at about 4.00 P.M. Umesh Sharma the
driver of Dr. Rajesh Talwar asked him to provide the
key of his terrace door then he had gone up the
stairs to open the lock of his terrace door and again
at about 4.30 P.M. he again went up the stairs to
open the lock of the terrace door. He has not been
cross-examined specifically as to when he had gone
up the stairs two times on 16.05.2008 whether he
had seen any blood stains on stairs, railing, lock,
handle and terrace door of Dr. Rajesh Talwar.
P.W.-29 Mahesh Kumar Mishra and P.W.- 34 S.I.
Dataram Naunoria have also stated that they had
seen blood stains on the lock of the terrace door of
Dr. Rajesh Talwar. If P.W.-29 has stated that there
were no blood stains on the terrace then it cannot
be said that there were no blood stains on the stairs.
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P.W.-34 has stated at page no. 9 of his crossexamination
that he does not remember whether
S.P. City had told Constable Chunni Lal to take the
photographs of blood stains on the upstairs. Since
blood stains appeared to have been cleaned and
therefore, this witness may not have noticed
minutely the faint bloodstains on the stairs and as
such no importance can be attached to the omission
on this aspect on part of P.W.-29. P.W.-34 has also
not been specifically asked whether he had seen
blood stains on the upstairs or not and he has
nowhere stated that he had not seen bloodstains on
the stairs.
The next submission of the learned counsel for
the accused is that theory of the prosecution that
Hemraj was taken in a bed-sheet to the terrace
through the stairs and his body was dragged on the
roof is not proved and the dummy test carried is not
admissible under section 45 of the Evidence Act and
the evidence given by P.W.-26 Deepak Kumar
Tanwar, P.W.-27 Dr. Rajendra Singh, P.W.-38 Dr.
M.S. Dahiya and P.W.-39 A.G.L. Kaul in this respect
is of no significance. I agree with the contention of
the learned counsel to the extent that dummy test is
not admissible under section 45 of the Evidence Act
because P.W.-27 Dr. Rajendra Singh has admitted at
page no. 4 of his cross-examination that he cannot
tell whether the dummy test is conclusive or not.
However, the fact remains that crime scene was reenacted
and dummy test was conducted. It is also
possible that after bludgeoning Hemraj with golf
stick he was carried in a bed sheet by both the
accused to the terrace when he was in a state of
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concussion and thereafter on the terrace his throat
was slit and body was dragged. The dragging marks
could be easily seen in the photographs material
Exhibit-14, 17 and 18. P.W.-36 Dr. Naresh Raj has
deposed that ante-mortem injury nos. 1 2, 4 and 5
of Hemraj may occur due to dragging on a hard
surface. It is well settled law that there is no set
pattern of injuries caused by dragging. It depends
how the body was lugged about. Under Section 106
Evidence Act it was incumbent upon the accused to
establish as to how the body of Hemraj was taken to
the roof by whom and who had locked the terrace
door from inside but they have miserably failed to
establish the same. It is not expected of the
prosecution to lead evidence on the point which is
exclusively within the knowledge and domain of the
accused. Thus, the argument of the learned counsel
is devoid of any merit.
It has next been argued with perspicacity by
the learned counsel for the accused that from the
evidence of P.W.-15 Umesh Sharma it is proved that
one door of Hemraj’s room opening towards the
passage remained closed as in front of this door
refrigerator was kept to block the opening of the
door and P.W.-39 A.G.L. Kaul has admitted that the
wooden door was having an automatic click shut
lock and therefore, the statement of Bharti Mandal
that flat was locked from inside cannot be believed.
It was also argued that Mrs. Shashi Devi has given
her statement to I.O. Hari Singh that whenever she
went to deliver ironed clothes outermost iron mesh
door was found jammed. I do not agree with this
submission because P.W.-10 Bharti Mandal has
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asseverated that when she had placed her hand on
outer mesh door it did not open and Dr. Nupur
Talwar had told her that perhaps Hemraj might have
gone to fetch milk after locking the middle
grill/mesh door from outside and when she came
again from ground level and placed her hand on the
mesh door it got opened. There is no valid reason to
disbelieve the statement of Bharti Mandal and it is
proved that when Bharti Mandal had reached at flat
no. L-32 it was latched from inside and purposely
she was told to go to the ground level so that in the
meantime Dr. Nupur Talwar may open the latch of
the door from inside which ultimately she did so.
P.W.-15 is a traitor who after taking oath has
deliberately back tracked. He has invented a new
story that outer mesh door opened with sound due
to being jammed. Mrs. Shashi Devi has neither been
produced by the prosecution nor by the defence and
therefore, her statement under section 161 Cr.P.C.
cannot be looked into as held in Mohd. Ankoos Vs.
P.P. High Court of A.P. 2009 AIR SCW 7132. Be that
as it may, it is amply proved that when Bharti
Mandal had placed her hand on the outer mesh
door, it did not open and when she came back from
ground level it got opened when she placed her
hand on it which clearly suggests that outer meshdoor
was latched from inside at the time of arrival of
Mrs. Bharti Mandal. The terrace door was also locked
from inside and therefore entry of third person is
completely ruled out.
It has next been argued by the learned counsel
for the accused that the evidence proffered by the
prosecution that Dr. Rajesh Talwar after committing
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the murder consumed neat whiskey without pouring
it into a tumbler can hardly be believed and the
evidence given in this respect by finger-prints lifter
constable Chunni Lal Gautam, P.W.-3 Amar Dev Sah,
P.W.-6 B.K. Mohapatra, P.W.-24 Suresh Kumar Singla
and P.W.-25 S.P.R. Prasad is not credible. In
furtherance of his arguments it was submitted con
brio that P.W.-1 has stated that he had taken fingerprints
from the whisky bottle and the plate and he
had applied black powder and when the finger-prints
developed tape was applied on that; about 15-20
gms. of powder was used and he does not
remember whether he had given the statement to
the investigating officer that whisky bottle from
which he had taken the finger-prints had a red
colour mark and the bottle was almost of red colour;
he does not remember that on 29.03.2010 he had
given statement to the inspector Arvind Jaitley that
he had used the powder to take chance-prints from
the bottle and had seen any blood on the same; that
in the report Exhibit-kha-1 of P.W.-3 Amar Dev Sah it
has been mentioned that the lifted chance-prints
marked as Q-1 and Q-10 are different from
specimen 10 digit finger-print slips marked as S-1 to
S-7 while in Exhibit-kha-3 it has been stated that
chance-prints detected from the wine bottle marked
as Q-3, Q-5 and Q-6 are different from specimen 10
digit finger-prints marked as S-1 to S-7 (S-1 & S-2
are of Dr. Rajesh Talwar & Dr. Nupur Talwar
respectively); P.W.-6 Dr. B.K. Mohapatra has
mentioned in his report Exhibit-ka-6 that blood was
detected on Exhibit-6 d (Ballantine scotch bottle)
and mixed partial DNA profile was generated from it
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which is consistent with both the sets of DNA profile
generated from the source of Exhibits of parcel-1
and parcel-24 at the amplified loci and he has also
deposed that from Exhibit-6 d partial profile of male
and partial profile of female DNA was generated but
in cross-examination he has stated that study of 16
markers is undertaken and he has taken only those
peaks which he had considered as correct; genotype
plots have not been placed on record in the court; in
the genotype table he has only shown the correct
peaks which were selected by him; if multiple peaks
are seen in the genotype then no opinion can be
given; for one man, in one loci, maximum two peaks
will appear; if in one loci more than two peaks
appear, then the same is called as multiple peaks;
when a mixed profile is obtained no opinion is given
about the same; if upon observing 9 loci same
tandem repeats are seen then in that case it cannot
be concluded that both are from the same source
and if the source is not known and upon
comparison/observation of 9 loci, same tandem
repeats are seen, then the identity cannot be
established, however, at similar observation of 15
loci identity is established and thus it is not proved
that Ballantine scotch bottle had DNA of Aarushi &
Hemraj. It was further submitted that P.W.-25 S.P.R.
Prasad in his report Exhibit-ka-51 dated 06.11.2008
has mentioned that alias Exhibit-F (Ballantine scotch
bottle) did not yield any DNA for analysis, alias
Exhibit-X (DNA Sample said to be extracted from
Exhibit-6 d) yielded male DNA profile; the DNA
profiles from the sources of Exhibit-W (DNA sample
said to be extracted from the bloodstained palm
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print found on the wall of the roof/terrace, marked
as 24), Exhibit-X (DNA sample said to be extracted
from the Exhibit-6 d bottle) and Exhibit-Z20 (one
pillow cover, purple coloured cloth) are a male
origin and identical; the DNA profile of the sources of
Exhibit-U (broken hair comb, article said to be of
Hemraj), Exhibit-R (two razors, articles said to be of
Hemraj) and Exhibit-Z30 (one bed cover multi
coloured with suspected spots of blood) are
matching with the DNA profiles of the sources of
Exhibit-W (DNA sample said to be extracted from
the bloodstained palm print found on the wall of the
roof/terrace, marked as 24) and Exhibit-X (DNA
sample said to be extracted from the Exhibit-6 d
bottle), as shown in the enclosed table 7 but in his
evidence he has stated that the samples from
Exhibit-F (Ballantine scotch bottle) were taken from
its mouth; P.W.-24 Suresh Kumar Singla has
mentioned in his report dated 17.06.2008 Exhibitkha-36
that blood on Exhibit-6d is of human origin
but Exhibit-6d gave no reaction for blood groups A,
B, AB & O and as such in view of this evidence it is
not established that Dr. Rajesh Talwar consumed the
neat liquor and the blood of both the deceased and
DNA got embossed on the said bottle and P.W.-3
Amar Dev Shah has stated that out of five chanceprints
Q-3 to Q-7 found on the bottle three prints i.e.
Q-3, Q-5 and Q-6 were fit for comparison and when
they were compared with the finger prints of the
accused no match resulted; while Dr. Mohapatra has
stated that DNA profile found from the bottle was a
mixed partial profile of male and female origin which
were consistent with the profile generated from the
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blood stained palm prints and Exhibits like bedsheet,
mattress and pillow-cover collected from Ms.
Aarushi’s room but P.W.-25 S.P.R. Prasad on analysis
of extracts generated by Dr. Mohapatra from the
said bottle found DNA profile of only male which
matched with the profile of the blood stained palmprint
and other profiles belonging to deceased
Hemraj. If Dr. Rajesh Talwar had consumed neat
liquor from its mouth then in that eventuality the
saliva and DNA of Dr. Rajesh Talwar must have
come in contact with the mouth of the bottle but no
DNA could be found on it and therefore, this
circumstance as relied upon by the prosecution is
liable to be disbelieved. The aforesaid arguments do
not appeal to the reason and therefore, liable to be
rejected. In Thogorani @ K. Damyanti Vs. State of
Orissa and others 2004 Cr.L.J. 4003 and Raghubir
Desai Vs. State 2007 Cr.L.J. 829, it was held that
DNA test is clinching piece of evidence. DNA testing
can make a virtually positive identification when two
samples are matched. It exonerates innocent and
helps to convict the guilty. In Smt. Kamti Devi Vs.
Poshi Ram AIR 2001 SC 2226, it has been held
that the result of genuine DNA test is said to be
scientifically accurate. In Sanjay @ Kaka Vs. NCT
of Delhi 2001 CrLJ 1230 (SC), it was held that
failure of prosecution to prove the origin of blood on
clothes would not extend any benefit to the
accused. In Sunil Clifford Daniel Vs. State of
Punjab 2013 (80) ACC 1999 (SC), it was held that
if classification of blood has not been determined
because of lapse of time, no advantage can be
conferred on the accused to enable him to claim any
Page 152

benefit and the report of disintegration of blood
cannot be termed as missing link. Relying on
Prabhu Babaji Navie Vs. State of Bombay AIR
1956 SC 51, Raghav Prapanna Tripathi Vs.
State of U.P. AIR 1963 SC 74 and the State of
Rajasthan Vs. Tej Raj AIR 1999 SC 1776, it was
held in Gura Singh Vs. State of Rajasthan AIR
2001 SC 330 that a failure by the serologist to
detect the origin of the blood due to disintegration
of the serum does not mean that the blood stuck on
the axe would not have been human blood at all.
Sometimes, it is possible either because the stain is
too insufficient or due to haematological changes
and plasmatic cogulation, that a serologist may fail
to detect the origin of the blood. In Keshav Lal Vs.
State of M.P. (2002) 3 SCC 254 it has been held
that non-ascertainability of the blood group cannot
be made a basis to discard the evidence of the
witnesses who otherwise inspired the confidence of
the court. In Hira Lal Pandey Vs. State of U.P.
(2012) 5 SCC 216, it was observed that fact that
Serological report was not produced although blood
stained earth was collected and that investigation
commenced only on next day of incident, are
defects in investigation which are not of a such
nature as to cast doubt on the prosecution story. In
Rama Nathan Vs. State of T.N. AIR 1978 SC
1204, it was observed that the mere fact that the
identity of the accused could not be established on
the basis of number of finger prints obtained during
the course of investigation cannot be said to be
enough to justify his acquittal when there was
overwhelming evidence against him to establish his
Page 153

guilt. In State of Karnataka Vs. M.N. Ram Das
(2002) 7 SCC 639, it was held that failure to send
murder weapon for finger prints may not be fatal
keeping in view the fact that it was soaked in the
blood or that there was other evidence connecting
the accused. It is doubtful whether blood soaked
chopper, if analysed by a finger-print expert could
have any clues as to finger-prints. Be that as it may,
even if it is considered as a lapse in the
investigation, that will not cast a cloud of doubt on
the prosecution case. In Musheer Khan @
Badshah Khan & others Vs. State of M.P. AIR
2010 SC 762, it has been held that evidence of
finger print expert is not substantive evidence. Such
evidence can only be used to corroborate some
items of substantive evidence which are otherwise
on record. In State of Maharashtra Vs. Anil 2006
Cr.L.J. (NOC) 288 (Bom) and Baso Prasad Vs.
State of Bihar (2006) 13 SCC 65 it has been held
that unless it is established in the cross-examination
that the opinion given by the expert is incorrect, the
said evidence cannot be discarded on showing
minor discrepancies such as non-production of the
original work-book. D.W.-7 Dr. Andrei Semikhodskii
has stated at page no. 3 of his examination-in-chief
that Genotype plots in paper no. 464-kha/2 to 464-
kha/8 are version of final conclusion documents.
This paper could not permit him to determine the
height of many peaks, the morphology of many
peaks and because of this he cannot tell whether
some peaks could be PCR artifact or real peaks and
this has a profound implication to determine the
possible number of contributors to the biological
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sample. He has further stated that since the
complete raw datas have not been supplied to him
and therefore, he is not in position either to concur
with or disagree with the report given by Dr. B.K.
Mohapatra. However, even without raw data he
disagrees with the report of Dr. Mohapatra on two
points- (I) Dr. Mohapatra has not calculated the RMP
(Random Match Probability), which does not allow
the court to form an opinion as to the strength of
DNA evidence and (ii) Dr. Mohapatra has deposed
that he does not interpret a mixed profile and
therefore, his capability is questioned and his
statement may lead to miscarriage of justice. In
cross-examination he has admitted that the copy of
the report Exhibit-ka-6 was sent to him and in
Exhibit-ka-6 tables of genotype plots have been
given. He has stated that samples of genotype plots
which have been attached with his report are having
11 markers and the samples of genotype plots
which have been produced by Dr. Mohapatra are
having 16 markers and he knows that in India the
experts use AMP FL STR 16 Loci base and Gene
Mapper ID Software. It is correct to say that the
height of the individual peak of the generated
genotype plot can be seen by the examiner from the
system itself and can be documented by the expert
if it is within acceptable limit. It is also correct to say
that the individual allels can be analysed in the
system with respect to its height, size, and all other
parameters. It is also correct to say that the height
of the peaks, morphology of peaks can be viewed in
a better manner from the system itself by doing
zoom. However, the height of the peaks can be best
Page 155

judged or estimated by the tabular chart which gives
the exact value. It is correct that Dr. Mohapatra has
recorded the allels which he has identified in the
tabular chart given in Exhibit-ka-6. He does not
know as to whether there are any guidelines or rules
that the printouts of blank genotype plots without
any allels peak are to be kept. He agrees that
genotype plots contain information with reference
to some allels, all dyes, very rough estimate/
general estimate of peak heights, very rough
estimate/general estimate of peak heights ratio,
some data points and some file names. It is correct
to say that many samples can be made to run
together in the DNA kit after one and another but
the interval must be of at least 30 seconds between
the samples. It is also correct to say that Dr.
Mohapatra has made inter-se comparison of the
DNA in the samples received by him. It is also
correct to say that Dr. Mohapatra has not given
identity of the source of DNA. It is true that the LCN
DNA results have been the subject of adverse
observations by the courts due to possibility of
contamination.
Thus the defence witness has admitted the
evidence and report of Dr. B.K. Mohapatra with
minor tit-bits here and there. Dr. Mohapatra has
stated at page no. 19 of his cross-examination that
NABL guidelines are followed and record of every
process is maintained and electrophoregram is in his
record. He has also stated at page no. 8 of his crossexamination
that DNA is extracted from the sample
and thereafter purification is done and then
amplification and genotyping is done and then
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results are obtained. He has also mentioned the
method of test in his work sheet with which he has
come to depose in the court. He has also stated at
page no. 23 of his cross-examination that genotype
plots are generated from automatic machineAutomatic
Genetic Analyzer. He has also stated at
page no. 26 of his cross-examination that lab
procedure has been mentioned in his report Exhibitka-10
and other reports and even if there is a
contaminate in DNA result will be the same and only
change will be in the graph. He has also stated that
he has extracted electrophoregram of positive
control. Thus, there appears no reason to discard
the report and evidence of Dr. B.K. Mohapatra.
P.W.-24 Suresh Kumar Singla has examined a
portion of cloth piece described as pillow-cover
(Exhibit-26) and a portion of blood stained threads
described as kukri with sheath (Exhibit-27) and
Exhibit-26 was found to be of human-in-origin but
Exhibit-26 gave no reaction for blood groups A, B,
AB & O and human blood could not be detected on
Exhibit-27. He has proved his examination report as
Exhibit-ka-49. In the cross-examination he has
stated that in the Exhibit-ka-27 human blood was
not found and blood of common animals like cow,
sheep, goat, cock, dog and Buffalo was also not
found. This evidence proves that kukri was not used
for homicide. He has also stated that his lab follows
NABL guidelines. P.W.-25 S.P.R. Prasad, Senior
Technical Examiner, C.D.F.D., Hyderabad has proved
examination report as Exhibit-ka-51. He has also
proved clarificatory letter dated 24.03.2011 as
Exhibit-ka-52 in which it has been mentioned that
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there are typographical errors in the description of
the Exhibits-Z14 and Z20 and therefore the
description of “Exhibit-Z14 shall be read as “one
pillow-cover (purple coloured cloth) Y-204, C-110”
instead of pillow with pillow-cover (Blue and White
Coloured)” and the description of “Exhibit-Z20” shall
be read as “pillow with pillow-cover (Blue and White
Coloured) Y-204, C-114” instead of “one pillow-cover
(purple coloured cloth)”. He has given cogent
reasons for this faux pas. He has stated on oath that
before given inputs electrophoregrams of ExhibitY204
CL-14 from which DNA profile was received
and Exhibit-Y204 CL10 from which DNA profile was
not received were checked. It is to be noted that no
DNA was found in the pillow-cover of Krishna by
C.F.S.L., New Delhi and C.D.F.D., Hyderabad and
both have found DNA of Hemraj in the pillow-cover
of Hemraj. This issue was raised before the Hon’ble
High Court, Allahabad by the accused Dr. Nupur
Talwar in Criminal Revision No. 1127 of 2011 Dr.
Nupur Talwar Vs. C.B.I. & another and after hearing
both the sides it was adjudicated on 18.03.2011 by
the Hon’ble High Court that the objections raised by
the accused are baseless and it was clear that DNA
of Hemraj was not found on Krishna’s pillow-cover.
The matter was again agitated before the Hon’ble
High Court in Petition No. 35303 of 2012 and it was
held by the Hon’ble High Court that the clarificatory
letter of C.D.F.D., Hyderabad has mentioned as to
how the error has crept in. It is also pertinent to
mention here that original Exhibits are having
proper tags of C.F.S.L. and C.D.F.D. and full
description of the Exhibits have been mentioned in
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the tags and signed by the concerned experts. All
the tags have been exhibited with envelopes and
material Exhibits i.e. pillow-cover and pillow with
cover. In view of this clinching scientific evidence
the arguments advanced on behalf of the accused
have got no force.
It was next contended by the learned counsel
for the accused that in a case based on
circumstantial evidence if chain of events points out
to only hypothesis that the accused are guilty and
then conviction can be recorded otherwise not but in
the instant case alternative hypothesis is proved
from the evidence on record in as much as when Dr.
Rajesh Talwar was arrested nothing was discovered
on his pointing out although he was taken in police
custody remand for several days; no incriminating
evidence including murder weapon was found from
him; a number of Exhibits were collected and got
examined but yielded no evidence to connect the
accused with the crime; polygraph test and
psychological assessment tests conducted upon Dr.
Rajesh Talwar, no incriminating material was
obtained; weapons of offence as introduced by
N.O.I.D.A. police were never found; during
investigating Krishna a friend of Hemraj was
arrested and order was passed by Special Judicial
Magistrate (C.B.I.), Ghaziabad on 11.06.2008
granting permission to C.B.I. to conduct Lie Detector
Test, Brain Mapping Test and Narco Analyses Test at
F.S.L. Banglore and the aforesaid tests indicated
that Krishna had revealed crucial information
leading to the double murders and his complicity is
found; as per application dated 14.06.2008 of C.B.I.
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not only Krishna but other persons were also
involved; that when Krishna was arrested and taken
on remand then he gave a voluntary disclosure
statement confessing the double murders by kukri;
Krishna also disclosed that murders were committed
by him and accomplices Rajkumar and Vijay Mandal;
in the application dated 17.06.2008 of C.B.I. it was
again stated that Krishna had admitted to have
committed the double murders and then his custody
remand was granted till 23.06.2008 by Special
Judicial Magistrate (C.B.I.), Ghaziabad and it was
observed by the learned Magistrate that on perusal
of case diary and disclosure memo it is revealed that
accused Krishna has confessed his guilt that on
14.05.2008 Hemraj has told him to get a kukri and
accordingly he had gone with kukri to Hemraj and in
the night of 15.05.2008 at around of 12.00 O’Clock
he had gone to meet Hemraj at L-32 and can get
recovered the mobile phone of Ms. Aarushi; on
14.06.2008 a kukri alongwith sheath and purple
colour pillow-cover were recovered from his room;
on 18.06.2008 the clothes of Dr. Rajesh Talwar and
Dr. Nupur Talwar which they were wearing in the
night intervening 15/16.05.2008 were seized but on
scientific examination and DNA analysis they yielded
blood and DNA of Ms. Aarushi alone; Rajkumar was
arrested on 27.06.2008 and during custody remand
he also made a disclosure statement admitting his
involvement alongwith Krishna and others which
stands proved from the application dated
28.06.2008 filed by Vijay Kumar the then
investigating officer; Vijay Mandal was arrested on
11.07.2008 and he also disclosed his complicity
Page 160

alongwith Krishna and Rajkumar; that on 11.07.2008
an application was given by C.B.I. before the learned
Special Judicial Magistrate (C.B.I.), Ghaziabad under
section 169 Cr.P.C. mentioning therein that evidence
against Dr. Rajesh Talwar is insufficient and
consequently he was released from jail; Dr. Sunil
Dohre and Dr. Naresh Raj opined that antemortem
injuries on the heads of both deceased are possible
to have been caused by kukri; P.W.-37 Vijay Kumar
has stated in his evidence that in Brain Mapping
Test, Narco Analysis Test and Polygraph Test of
Krishna his complicity in double murders has been
found; Krishna, Rajkumar and Vijay Mandal were
involved in the crime; Vijay Kumar has also stated
that K.K. Gautam has stated before him that he had
found that on the bed of Hemraj at least three
persons must have been seated as there were
depressions in the bed and in the two glasses
substance like alcohol was seen and it seemed that
toilet of Hemraj had not been flushed and more than
one person had urinated in the toilet; that P.W.-35
M.S. Phartyal has also admitted in his crossexamination
that the above three persons had
confessed to have committed murders, however
they were not cooperating and giving misleading
information; that sound test was carried on
10.06.2008 and it was found that accused sleeping
in their bed-room with air-conditioner switched on
cannot hear opening and closing/bolting of entryexit
door; that on 15.05.2008 at about 16:58:14
hours a call was made from telephone number
01206479896 to mobile number 9213515485 and
on the same date another call was made from the
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said land-line number to the said mobile number at
17:37:33 hours by Krishna to Hemraj from N.O.I.D.A.
Clinic of Dr. Rajesh Talwar and at that time Dr.
Rajesh Talwar was in his Hauz Khas Clinic and Dr.
Nupur Talwar was in Fortis Hospital, Sector-62,
N.O.I.D.A. which is proved from the C.D.R. of mobile
number 9810178071 in the name of Dr. Nupur
Talwar and as such as it is proved that all the
erstwhile accused persons were in contact with each
other. Like a drowning man catching at the straw,
wild suggestions have been thrown that there was a
possibility of the murder of both the deceased
having been committed by these three erstwhile
accused and thus alternative hypothesis of
commission of double murders by Krishna, Rajkumar
and Vijay Mandal stands proved and exconsequenti,
the accused deserve to be acquitted.
I do not find any substance in the aforesaid
submissions. The purpose of investigation is to find
out the real culprits and in that process even
suspected persons are arrested by the investigating
agencies for interrogation but when their culpability
and complicity in the commission of the offence is
not established, then they are let off and therefore,
if Krishna, Rajkumar and Vijay Mandal were arrested
by C.B.I. during the course of investigation but no
prima-facie evidence surfaced against them then
they were rightly not proceeded against. Recovery
of kukri was not made on the basis of pointing out
by the accused Krishna. Even this kukri was not
recovered from his room on the basis of his
disclosure statement and rather from the perusal of
Exhibit-ka-92, it will reveal that C.B.I. team along
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with forensic experts from C.F.S.L., New Delhi
inspected the room of Krishna Thadarai in the
presence of his brother-in-law Bhim Bahadur Thapa
and then kukri along with sheath was recovered.
P.W.-37 Vijay Kumar, a quondam S.S.P. of C.B.I. has
stated at page no. 2 of his cross-examination that
although Krishna confessed before him but he had
changed his version and therefore, he could not
reach at the conclusion that he has perpetrated the
crime. This witness has wrongly deposed that on the
basis of disclosure statement made by Krishna kukri
was recovered from his room because in Exhibitka-92
it has no where been written that on the basis
of disclosure statement recovery of kukri was made
on 14.06.2008. If, while moving applications for
granting police custody remand of these three
erstwhile accused it was mentioned that these
persons are involved in the crime then it cannot be
held that, in fact, these persons were the
perpetrators of the crime because, in practice, the
investigating agency when moves application for
police custody remand of an accused then all-out
efforts are made to convince the concerned judicial
magistrate regarding the complicity of the accused
so that custody remand may be granted and
therefore, if the learned Special Judicial Magistrate
(C.B.I.), Ghaziabad has made certain observations
for grant of police custody remand on the basis of
averments made in the applications, then by that
observation this court is not bound to infer that the
suspects were actually involved in the crime. It is
also pertinent to mention here that investigation at
that stage was at preliminary stage and all the
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cumulative evidence and circumstances had not
surfaced by then and hence, for these reasons no
importance can be attached to the applications for
grant of remand and the orders passed by the
Special Judicial Magistrate (C.B.I.), Ghaziabad
thereon. In Smt. Selvi and others Vs. State of
Karnataka AIR 2010 SC 1974 (3JJ) it has been
held that the results of Brain Mapping, Narco
Analysis and Polygraph Tests cannot be admitted in
evidence and the results obtained from such tests
cannot be categorized as material evidence and
even when the subject has given consent to undergo
any of these tests, the test results by themselves
cannot be admitted as evidence because the subject
does not exercise conscious control over the
responses during the administration of tests and
therefore, in view of the law settled by the Hon’ble
Supreme Court, if the erstwhile accused persons had
given any inculpatory statements during the course
of these tests then they are of no legal significance.
If on 15.05.2008 at about 16:58:14 hours and
17:37:33 hours telephone calls were made by
Krishna to Hemraj from N.O.I.D.A. Clinic of Dr.
Rajesh Talwar and at that time Dr. Rajesh Talwar
was in his Hauz Khas Clinic and Dr. Nupur Talwar
was in Fortis Hospital, Sector-62, N.O.I.D.A. then it
cannot be said that they were planning to commit
any crime. One should not lose sight of the fact that
Hemraj was also murdered in the intervening night
of 15/16.05.2008 and therefore, conspiracy between
Hemraj and Krishna cannot be deduced by any
stretch of imagination. There is no evidence that
Rajkumar and Vijay Mandal were in contact either
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with Hemraj or Krishna. The evidence of K.K.
Gautam that on examination of the room of Hemraj
it was observed that three persons might have been
sitting in the bed as there were depressions on the
bed and in the two glasses substance like alcohol
was seen and it seemed that toilet of Hemraj had
not been flushed and more than one person had
urinated in the toilet hardly inspires confidence as
this statement is based on surmises, conjectures
and speculations. It is not possible at all that in the
midnight around 12.00 O’Clock Krishna, Rajkumar
and Vijay Mandal will come to the room of Hemraj
and have liquor drinks. If it was so, four glasses
might have been found there but K.K. Gautam has
stated before the I.O. that in only two glasses
substance like alcohol was seen which has not been
confirmed by any other evidence. The prosecution
story and its evidence will not receive a jerk and jolt
because the erstwhile accused were not chargesheeted
or put on trial as the jerk and jolt is not such
as to upset and tilt the prosecution version against
the accused and create any reasonable doubt in
regard to their complicity in the ghastly crime. Since
the occurrence is nocturnal inside the flat and the
crime came into light in public domain in the
morning of 16.05.2008 and therefore, it is possible
in all human probability that both the accused may
have created evidence of such a nature which may
confuse the investigators. The accused Dr. Rajesh
Talwar has admitted at page no. 2 of his written
statement under section 313 Cr.P.C. that he and his
wife have been brought up in a very liberal
atmosphere with modern outlook and at page 3 he
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has stated that he takes alcohol at parties. However,
at page no. 4 of his written statement he has stated
that whisky bottle should have been ordinarily in the
cabinet. This answer itself suggests that Dr. Rajesh
Talwar is fond of liquor and he used to take liquor in
his flat as he himself has admitted that whisky bottle
must have been in the cabinet and not in the dining
table and therefore, there is every possibility that
whisky was taken by the accused Dr. Rajesh Talwar.
It is also possible that whisky bottle might have
been lifted after wearing gloves. It is also possible
that Sula wine may have also been taken by the
accused when he was extremely and intensely in
tension after committing the crime or it was partly
made empty to show that Hemraj and his friends
had consumed the liquor. It is not the case of the
accused that Hemraj used to take wine or liquor.
If weapons of offence i.e. hammer, knife and
scalpel have not been recovered then due to that,
the case of prosecution is not affected. In Umar
Mohmmad Vs. State of Rajasthan 2008 (60)
ACC 295 (SC) it has been held that non recovery of
incriminating material/weapons of offence from the
accused cannot be a ground to exonerate them
when the eye witnesses examined by the
prosecution are found to be trustworthy. In this
case, the law as laid down in Krishnamochi and
others Vs. State of Bihar (2002) 6 SCC 81 was
followed. In Baba Deen @ Babai Vs. State of U.P.
2012 (78) ACC 660 (DB ALL) it has been held that
non recovery of weapon of offence is not a ground
for acquittal of the accused when there is a clinching
and reliable evidence. In that case the law as
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expounded in State of Rajasthan Vs. Arjun Singh
2012 (77) ACC 708 (SC) has been followed. It is
to be noted that head and neck injuries of both the
deceased persons do not appear to have been
caused by hammer and knife respectively and
therefore, question of their recovery does not arise.
Golf sticks were produced by Dr. Rajesh Talwar
himself. The size of Scalpel is just like a pen and can
easily be concealed or destroyed at any time after
the commission of the double murders in the night
and both the accused had sufficient time and
opportunity to destroy or conceal the scalpel and
other incriminating evidence which was against
them. In view of the discussion made above, the
arguments advanced on behalf of the accused pale
into insignificance.
The next contention of the learned counsel for
the accused is that from the evidence it is not
proved that the crime scene was dressed up by the
accused persons and insinuation that toys having no
blood stains were kept on the bed after the
commission of the murder; that the bed-sheet was
not having creases; that dead body of Hemraj was
covered with a cooler panel; that the accused
persons changed their clothes which they were
wearing in the night of the occurrence and fresh
clothes were worn before the onset of the dawn are
nothing but a pack of lies and have been concocted
as a cock and bull story but these allegations are not
proved by the evidence in view of fact that on
perusal of photographs paper no. 560-ka-/31, 560-
ka/37and 560-ka/39 which were taken from the
digital camera (which was given to Ms. Aarushi as
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birth day gift) in the evening of 15.05.2008 it will
reveal that toys, pillow have also been shown in
those photographs which were taken in the evening
and and Dr. Nupur Talwar was also wearing the
same gown which she was found wearing in the
morning and therefore, the allegations are proved to
be utterly false and the prosecution story collapses