evidence - ii.docx

Evidence – II Project

iNATIONAL LAW INSTITUTE

UNIVERSITY

EVIDENCE-IThe State of U.P. Through the C.B.I.

v.

Rajesh Talwar & Another

SUBMITTED TO-

Submitted by :-

The State of U.P. Through CBI v. Rajesh Talwar and Anr.


ACKNOWLEDGMENT

I take immense pleasure in thanking Ms. teacher for having permitted me to carry out this

project work. I express my gratitude to her for giving me an opportunity to explore the world

of information concerning my project topic.



TABLE OF CONTENTS

ACKNOWLEDGMENT............................................................................................................2

TABLE OF CONTENTS...........................................................................................................3

INTRODUCTION......................................................................................................................4

FACTS.......................................................................................................................................5

FACTS WHICH WENT AGAINST THE ACCUSED.............................................................7

PRINCIPLES OF EVIDENCE LAW REFERRED.................................................................11

CIRCUMSTANTIAL EVIDENCE.....................................................................................16

REASONS GIVEN AND AUTHORITIES CITED BY LD. JUDGE.....................................17

CONCLUDING REMARK BY LD. JUDGE..........................................................................19

CONCLUSION........................................................................................................................20

BIBLIOGRAPHY....................................................................................................................21

BOOKS AND ARTICLES:-................................................................................................21

INTERNET SITES:-............................................................................................................21



INTRODUCTION

The murder of Arushi Talwar and the subsequent investigations and judicial proceedings in

the case have been in the news since the May 26, 2008 when the deceased was found dead at

her home in suspicious circumstances. This project will analyse the principles of evidence

law and provisions of the Evidence Act used by the Ld. Additional Sessions Judge, Sohan

Lal, while coming to conclusions in his judgment dated 26.11.2013.

The evaluation of the evidence in this case was of prime importance as the investigations in

this case were conducted very arbitrarily and several officers were transferred. Also, several

contradictory statements came out during the investigation while also the case was also very

highly publicized by the media. The Talwars’ also faced what in common parlance is called

Trial by Media and they were shown as criminals even before the verdict came out and the

basic presumption of criminal jurisprudence “one shall be presumed innocent until proven

guilty” was taken to the cleaners by the media.



FACTS

The mise en scene was Flat No. L-32, JalvayuVihar, Sector 25, N.O.I.D.A., a suburb of New

Delhi.The Dramatis Personae were Dr. Rajesh Talwar, hiswife Dr. Nupur Talwar, the

accused of this case, Ms.Aarushi and Hemraj, who were bludgeoned andthereafter, jugulated

to death on the intervening night of 15/16 May, 2008.

On 15.05.2008 at about 09:30 P.M. only Dr.Rajesh Talwar, Dr. Nupur Talwar, Ms. Aarushi

andHemraj were last seen in the house by UmeshSharma, the driver of Dr. Rajesh Talwar and

in themorning of 16.05.2008 Ms. Aarushi was found deadin her bedroom, which was

adjacent to the bedroomof accused persons and in between these bedroomsthere was a

wooden partition wall. The dead body ofdomestic servant Hemraj was found on the terraceof

the house on 17.0.2008 and there was nothing tosuggest that intruder(s) perpetrated this

fiendishand flagitious crime.



When Bharti Mandal, the housemaid of the Talwars’ household, came to the house on

16.05.2008, she was informed by Dr. Nupur Talwar that Arushi had been murdered by

Hemraj who had fled. Meanwhile, Dr. Rajesh Talwardelated the matter with the Police

Station, Sector20, N.O.I.D.A. stating therein that he lives in L-32,Jalvayu Vihar, Sector 25,

N.O.I.D.A., along with hiswife and daughter Aarushi. The servant Hemraj, who hails from

Nepal used to live in one room of the saidhouse. His daughter Aarushi, aged about 14

yearswas sleeping in her bedroom in the preceding nightbut in the morning she was found

dead in her bed,having incised wounds in her throat. The servant hascommitted the murder of

his daughter who ismissing since night and therefore, the report belodged and action taken.

On the basis of this reportCase Crime No. 695 of 2008 u/S 302 I.P.C. wasregistered against

Hemraj and the substance of theinformation was recorded in G.D. No. 12 at 07:10A.M. on

16.05.2008.

The investigation of the case was taken up byS.I. Data Ram Naunaria, the Station House

Officer, Noida, Sector 20. During investigation S.I. Data Ram Naunariaseized the blood

stained pillow, bed sheet and pieces of mattress from the room of Aarushi. He tried to go to

the roof of the house but the doorof the roof was found locked and the lock washaving blood

stains. He asked Dr. Rajesh Talwar togive the keys of lock of the door of the terrace tohim

but Dr. Rajesh Talwar told him that he was not having the keys and he should not waste his

time inbreaking open the lock, else Hemraj will manage toflee away.

On 17.05.2008 Dr. Dinesh Talwar wasasked to provide the key of the lock of the door ofthe

terrace but he also told that he had no key withhim and therefore, the Investigator Data

RamNaunaria broke open the lock of the door of theterrace and went to the terrace along with

K.K.Gautam, a retired police officer, Dr. SushilChaudhary and Dr. Dinesh Talwar and found

thedead body of Hemraj lying there in a pool of blood.The dead body was covered with a

panel of coolerand dragging marks were visible. Dr. Dinesh Talwarwas told to identify the

dead body but he stated thathe could not recognize the dead body. However Ram

Prasad, Rudra Lal and other persons who hadgathered there identified the dead body as that

ofHemraj. On 17.05.2008 Constable Chunni LalGautam took the photographs and finger

prints ofthe terrace.

Subsequently, Dr. Nupur and Rajesh Talwar were put to trial in which a total of 247 Exhibits

were submitted in the Court in the course of trial.



FACTS WHICH WENT AGAINST THE ACCUSED

The Court had listed out 26 facts which went accused in the instant case.

"From the evidence as tendered by the prosecution in form of oral and documentary evidence

this court reaches to the irresistible and impeccable conclusion that only the accused persons

are responsible for committing this ghastly crime as the following circumstances unerringly

point towards the hypothesis of guilt of the accused,”.

1. That irrefragably on the fateful night of May 15 and 16, 2008 both the accused were last

seen with both the deceased in Flat No. L-32, Jalvayu Vihar at about 9.30 pm by U Umesh

Sharma, the driver of Rajesh Talwar.



2. That on the morning of May 16, 2008 at about 6.00 am Aarushi was found murdered in her

bed-room which was adjacent to the bedroom of the accused and there was only partition

wall between two bed-rooms.

3. That the dead body of the servant Hemraj was found lying in the pool of blood on the

terrace of flat no. L-32, Jalvayu Vihar on May 17, 2008 and the door of terrace was found

locked from inside.

4. That there is a close proximity between the point of time when both the accused and the

deceased persons were last seen together alive and the deceased were murdered in the

intervening night of May 15 and 16, 2008 and as such the time is so small that possibility of

any other person(s) other than the accused being the authors of the crime becomes

impossible.

5. That the door of Aarushi's bed-room was fitted with automatic click-shut lock. Mahesh

Kumar Mishra, the then S.P. (City), NOIDA has deposed that when he talked to Rajesh

Talwar on May 16, 2008 in the morning, he had told him that in the preceding night at about

11.30 P.M. He had gone to sleep with the key after locking the door of Aarushi's bed-room

from outside. Both the accused have admitted that door of Aarushi's bed-room was having

automatic-clickshut lock like that of a hotel, which could not be opened from outside without

key but could be opened from inside without key. No explanation has been offered by the

accused as to how the lock of Aarushi's room was opened and by whom.

6. That the internet remained active in the night of the gory incident suggesting that at least

one of the accused remained awake.

7. That there is nothing to show that an outsider(s) came inside the house in the said night

after 9.30 P.M.

8. That there was no disruption in the supply of electricity in that night.

9. That no person was seen loitering near the flats in suspicious circumstances during that

night.



10. That there is no evidence of forcible entry of any outsider(s) in the flat in the night of

occurrence.

11. That there is no evidence of any larcenous act in the flat.

12. That in the morning of May 16, 2008 when the maid came to the flat for the purpose of

cleaning and mopping, a false pretext was made by Nupur Talwar that door might have been

locked from outside by the servant Hemraj although it was not locked or latched from

outside.

13. That the house maid Bharti Mandal has nowhere stated that when she came inside the flat

both the accused were found weeping.

14. That from the testimony of Bharti Mandal it is manifestly clear that when she reached the

flat and talked to Nupur Talwar then at that time she had not complained about the murder of

her daughter and rather she told the maid deliberately that Hemraj might have gone to fetch

milk from Mother dairy after locking the wooden door from outside.

15. That the clothes of both the accused were not found soaked with blood. It is highly

unnatural that parents of deceased Aarushi will not cling to and hug her on seeing her

murdered;

16. That no outsider(s) will dare to take Hemraj to the terrace in severely injured condition

and thereafter search out a lock to be placed in the door of the terrace;

17. That it is not possible that an outsider(s) after committing the murders will muster

courage to take Scotch whisky knowing that the parents of the deceased Aarushi are in the

nearby room and his top priority will be to run away from the crime scene immediately.

18. That no outsider(s) will bother to take the body of Hemraj to the terrace. Moreover, a

single person cannot take the body to the terrace;

19. That the door of the terrace was never locked prior to the occurrence but it was found

locked in the morning of May 16, 2008 and the accused did not give the key of the lock to the

police despite being asked to give the same;

20. That the accused have taken plea in the statements under section 313 Cr.P.C. That about

8-10 days before the occurrence painting of cluster had started and the navvies used to take

water from water tank placed on the terrace of the flat and then Hemraj had started locking



the door of the terrace and the key of that lock remained with him. If it was so then it was not

easily possible for an outsider to find out the key of the lock of terrace door;

21. That if an outsider(s) may have committed the crime in question after locking the door of

terrace and had gone out of the flat then the outer most mesh door or middle mesh door must

have been found latched from outside;

22. That the motive of commission of the crime has been established;

23. That it is not possible that after commission of the crime an outsider(s) will dress-up the

crime scene;

24. That golf-club no.5 was thrown in the loft after commission of the crime and the same

was produced after many months by the accused Rajesh Talwar;

25. That pattern of head and neck injuries of both the accused persons are almost similar in

nature and can be caused by golf-club and scalpel respectively;

26.That the accused Rajesh Talwar was a member of the Golf-Club NOIDA and golfclubs

were produced by him before the CBI and scalpel is used by the dentists and both the accused

are dentists by profession;

“The manner in which the murders were committed is not the handiwork of single

accusedand rather the murders were committed and evidence destroyed by both the accused

infurtherance of their common intention which is apparent from the facts and circumstances

asdiscussed above.”



PRINCIPLES OF EVIDENCE LAW REFERRED

There was noevidence of egress and ingress; there was no evidence of any larcenous act;

there was no evidence of anyforcible entry inside the flat; there was no evidence atall to

suggest that friends of Hemraj came inside theflat after 9.30 P.M. and shared drinks of liquor

withHemraj in the postmortem examination report of Hemraj no finding was given that

liquorcontents were found in his stomach and nosuggestion was given before any witness

thatHemraj had taken alcohol with his friends in thatnight.

It was establishedfrom the evidence of Mrs. Bharti Mandal that meshdoor was latched from

inside and she was misled togo to the ground level and in the meanwhile whenshe went down

the stairs at the ground level thelatch was opened by Dr. Nupur Talwar. It was notpossible

that an outsider(s) after committing thetwin murders would clean the private parts of

Ms.Aarushi, dress-up the bed-sheet, cover the deadbody with the flannel blanket, place toys

in properorder, dare to drink scotch and Sula wine, will takeaway the body of Hemraj to

terrace, place a panel ofcooler over his body, place a bed-sheet over the irongrill dividing the

roofs to save from gaze wellknowing that both the accused are in their bed-roomand they can

awake at any time. This is not the caseof defence that their bed-room was bolted fromoutside

by any person(s) and they were 'cabined,cribbed and confined' in their bed-room.



Both theaccused in their statements undersection 313 Cr.P.C. stated that about 8-10 days

prior to theoccurrence painting of cluster had started and thelabourers used to take water from

the water tankplaced in their roof and therefore, Hemraj hadlocked the door of terrace and the

key of the doorremained with him. If it was so, then it was notpossible for an outsider(s) to

rummage out the keyand thereafter, lock the door of the terrace frominside when the dead

body of Hemraj was lying inthe terrace.

When the investigators asked Dr. RajeshTalwar to provide the key of the door of the

terrace,he gave incoherent answers and a device wasresorted to by Dr. Rajesh Talwar to

throw enquirersoff the scent. From the evidence it was alsoestablished that both the accused

changed theirvestures. It is against the order of human naturethat on seeing their dearest

daughter lying in a poolof blood the accused being the natural father andmother will not hug

her. In the process of hugging,their clothes will be deeply stained with the bloodbut not found

so.

Both the accused have alsoadmitted in their statements under section 313Cr.P.C. that the area

of the flat is 1300 sq. feet andit has only one gate. If some outsider(s) might havecommitted

the offence then after making his exitfrom the flat, either he will bolt the outer or middlemesh

door from outside or will keep them open butthis was not done and rather the outer mesh

doorwas latched from inside by the accused persons andthat's why when the maid came and

placed herhand on the mesh door, it did not open and she waspurposely told to go to the

ground level andthereafter, latch was opened. Therefore, it was concluded that no

outsidercame inside the house in the fateful night andtherefore, when the prosecution has

been successfulin proving that both the deceased were last seenalive in the company of both

the accused at flat no.L-32 at about 9.30 P.M. on 15.05.2008 and both thedeceased were

murdered in the intervening night of15/16.05.2008 then from this fact, as held inTukaram

Ganpat Pandare v. State ofMaharashtra,1this court mayhave regard to the common course

of naturalevents, human conduct, public or private business,in their relation to the facts of the

particular case asenvisaged in Section 114 of Evidence Act and canreasonably be presumed

that it is the accused andaccused only who have murdered the deceased andnone else for want

of giving evidence in rebuttalunder Section 106 of the Evidence Act whichprovides that

when any fact is especially within theknowledge of any person, the burden of proving thatfact

is upon him. In Crystal Developers v. AshaLata Ghosh,it has been heldthat it is well settled

1Tukaram Ganpat Pandare v. State ofMaharashtra, AIR 1974 SC 514



that inferences have to bedrawn from a given set of facts and circumstanceswith realistic

diversity and not with dead uniformity.

This was the bounden duty of both the accusedpersonally knowing the whole circumstances

of thecase to give evidence on their behalf and to submitto cross-examination, which they

have failed to doso. In Gurcharan Singh v. State of Punjab,2it has been held that the burden

ofproving a plea especially set up by an accusedwhich may absolve him from criminal

liability,certainly lies upon him.

In Razik Ram v. J.S.Chouhan,3it was observed “theprinciple under lying section 106 which

is anexception to the general rule governing burden ofproof applies only to such matters of

defence whichwere supposed to be especially within the knowledgeof the party concerned. It

cannot apply when thefact is such as to be capable of being known also bypersons other than

the party.”

In Shambhu Nath Mehra v. State of Ajmer,4it has been held that section 106 lays down

thegeneral rule that in a criminal case the burden ofproof is on the prosecution and section

106 iscertainly not intended to relieve it of that duty.

Onthe contrary, it is designed to meet certainexceptional cases in which it would be

impossible, orat any rate it is proportionately difficult, for theprosecution to establish facts

which are “especially”within the knowledge of the accused and which hecould prove without

difficulty and inconvenience.

The word “especially” stresses that. It means factsthat are pre-eminently or exceptionally

within hisknowledge. It was further held that this sectioncannot be used to undermine the

well-establishedrule of law that, save in a very exceptional class ofa case, the burden is on the

prosecution and nevershifts. In Kali Ram v. State of HimachalPradesh,5it has also beenheld

that the burden of proving the guilt of theaccused is upon the prosecution and unless

itrelieves itself of that burden, the courts cannotrecord a finding of the guilt of the accused.

Thereare certain cases in which statutory presumptionarises regarding the guilt of the

accused, but theburden even in those cases is upon the prosecutionto prove the existence of

facts which have to bepresent before the presumption can be drawn. Oncethose facts are

shown by the prosecution to exist,the court can raise the statutory presumption and itwould, 2Gurcharan Singh v. State of Punjab, AIR 1956 SC 4603Razik Ram v. J.S. Chouhan, AIR 1975 SC 6674Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 4045Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 (3JJ)



in such an event, be for the accused to rebutthe presumption. The onus even in such cases

uponthe accused is not as heavy as is normally upon theprosecution to prove the guilt of the

accused.

In Shamnsaheb M. Multtani v. State of Karnataka,6the prosecution failed to prove the

chargeunder section 302 I.P.C. and no charge under section304-B I.P.C. was framed and

hence it was held thatconviction under section 304-B without affordingopportunity to the

accused to enter on his defenceand disprove the presumption under section 113-BEvidence

Act would result in failure of justice.

In Radhey Lal and others v. Emperor,7it was held by the Hon’ble JusticeAllsop that an

accused person is required to explainthe circumstances which appear against him in

theevidence and if he cannot or will not do so, he musttake the consequences. If he chooses to

take up theposition that he relies upon the technicality that thewhole burden of proof was

upon the prosecution andrefuses to say anything about the matter, he canhardly be surprised

if he is convicted upon theevidence produced by the prosecution, if that provescircumstances

from which his guilt can be inferred.

In Krishan Kumar v. Union of India (1960) 1 SCR 452, it was held that it is not the lawof

this country that the prosecution has to eliminateall possible defences or circumstances which

mayexonerate him. If these facts are within theknowledge of accused then he has to prove

them. Ofcourse, the prosecution has to establish a primafacie case in the first instance. It is

not enough toestablish facts which give rise to a suspicion andthen by reason of section 106

of the Evidence Act tothrow the onus on him to prove his innocence.

InCollector of Customs v D. Bhoormall,8it was held “Prosecution/or theDepartment is not

required to prove its case withmathematical precision to a demonstrable degree;for, in all

human affairs absolute certainty is a mythand as Professor Brett felicitously puts it- “all

exactness is a fake”.

El Dorado of absolute proofbeing unattainable the law accepts for it, probabilityas a working

substitute in this work-a-day world. Thelaw does not require the prosecution to prove

theimpossible. All that it requires is the establishmentof such a degree of probability that a

prudent manmay, on its basis, believe in the existence of a factin issue. Thus, legal proof is

not necessarily perfectproof; often it is nothing more than a prudent man’sestimate as to the

probabilities of the case. Theother, cardinal principle having an important bearing

6Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 (3JJ).7Radhey Lal and others v. Emperor, AIR 1938 All. 2528Collector of Customs v D. Bhoormall, (1972)2 SCC 544



on the incidence of burden of proof is thatsufficiency and the weight of the evidence is to be

considered- to use the words of Lord Mansfield- inBatch v. Archer9, “according to the

proof which it was in thepower of one side to prove, and in the powerof the other to

have contradicted.” Since it isexceedingly difficult, if not absolutely impossible, forthe

prosecution to prove facts which are especiallywithin the knowledge of the opponent or the

accused, it is not obliged to prove them as part ofhis primary burden......”. The same view has

beenreiterated inMohmmad Amir Kasab @ AbuMujahid v. State of Maharashtra.10

In State of West Bengal v. MirMohammad Umar,11 it wasobserved- “The pristine rule that

the burden of proofis on the prosecution to prove the guilt of theaccused should not be taken

as a fossilized doctrinealthough it admits no process of intelligentreasoning. The doctrine of

presumption is not alien to the above rule, nor would it impair the temper ofthe rule. On the

other hand, if the traditional rulerelating to burden of proof of the prosecution isallowed to be

wrapped in pedantic coverage, theoffenders in serious offences would be the

majorbeneficiaries and society would be casualty.”

Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steel Coal Co. Ltd.,12observed as

follows-“Proof does not mean proof to rigidmathematical demonstration, because that is

impossible; it must mean such evidence as wouldinduce a reasonable man to come to a

particularconclusion.”

The said observation has stood the test of timeand can now be followed as the standard of

proof. Inreaching the conclusion the court can use theprocess of inferences to be drawn from

factsproduced or proved.Law gives absolute discretion tothe court to presume the existence

of any fact whichit thinks likely to have happened. In that process thecourt may have regard

to the common course ofnatural events, human conduct, public or privatebusiness vis-a-vis

the facts of the particular case.The discretion is clearly envisaged in Section 114 ofthe

Evidence Act.

Presumption is an inference of a certain factdrawn from other proved facts. While inferring

theexistence of a fact from another, the court is onlyapplying a process of intelligent

reasoning which themind of a prudent mind would do under similarcircumstances.

9Batch v. Archer, (1774) 1, cowp-63 at page 6510Mohmmad Amir Kasab @ AbuMujahid v. State of Maharashtra,(2012) 9SCC-111State of West Bengal v. Mir Mohammad Umar, (2000) 8 SCC 38212Hawkins v. Powells Tillery Steel Coal Co. Ltd, 1911(1) KB 988



Presumption is not the finalconclusion to be drawn from other facts. But it couldas well be

final if it remains undisturbed later.

Presumption in law of evidence is a rule indicatingthe stage of shifting the burden of proof.

From acertain fact or facts the court can draw an inferenceand that would remain until such

inference is eitherdisproved or dispelled.

In Achara Parambath Pradeepan and others v.State of Kerala,13it was held that if a person

is last seen with the deceased, he must offer an explanation as to how and when he parted

company. Section 106 lays down the rule that when the accused does not throw any light

upon facts which are specially within his knowledge and which could not support any theory

or hypothesis compatible with his innocence the court can consider his failure to adduce any

explanation as an additional link which completes the chain.

CIRCUMSTANTIAL EVIDENCE

In the instant case it was observed by the Ld. Judge that the parties were ad idem that the

case is based on circumstantial evidence.

It is one of the established principles of law that a witness may lie but not the circumstances.

Direct ocular evidence is not necessary behind the crime. The guilt of a person can be proved

by circumstantial evidence also.14 However, the court must adopt a cautious approach while

basing its conviction purely on circumstantial evidence.15As evidence there is not much

difference between direct and circumstantial evidence. The only difference is in that as proof,

the former directly establishes the commission of the offence whereas the latter does so by

placing the circumstances which lead to irresistible inference of guilt.16

13Achara Parambath Pradeepan and others v.State of Kerala, 2007 (1) Crimes 54 (SC).14Vilas Pandurang Patil v. State of Maharashtra, AIR 2004 SC 3562.15State of Haryana v. Ved Prakash, AIR 1994 SC 468; State of Karnataka v. Hanumantha, 2002 CrLJ NOC 254 (Kant), Bodh Raja v. State of J&K, 2002 CrLJ 4664 (SC); Dharyashil v. State of Maharashtra, 2003 CrLJ 317 (Bom).16Makbul Ahammad v. Abdur Rahaman Akand, (1953) 1 Cal 348; Debar Kundu Rama Krishna Rao v. State of W.B., 1988 CrLJ 345 (Cal); Liyakat v. State of Uttaranchal, AIR 2008 SC 1537.



REASONS GIVEN AND AUTHORITIES CITED BY LD. JUDGE

In Barendra Kumar Ghosh v. King Emperor17, it was observed that in crime as well as in life, he also serves whomerely stands and waits. In Rishi Dev Pandey v.State of U.P.18 it was heldthat it is not necessary to adduce direct evidence ofthe common intention. Indeed, in many cases it maybe impossible to do so. The common intention maybe inferred from surrounding circumstances andconduct of the parties. In Laxman v. State ofMaharashtra19 it has beenheld that intention to kill can be inferred from thenumber and nature of the injuries caused to thedeceased. In Harshad Singh Pahelwan Singh Thakore v. State of Gujarat,20it was observed that conjoint complicity is theinevitable inference when a gory group animated bylethal intent accomplish their purpose cumulatively.

Section 34 I.P.C. fixing constructive liabilityconclusively silences such a refined plea ofextrication. Lord Sumner’s Classic Legal Short Handfor constructive criminal liability, expressed in theMiltonic Verse “they also serve who only standand wait” a fortiori embraces cases of commonintent instantly formed, triggering a plurality ofpersons into an adventure in criminality, somehitting, some missing, some splitting hostile heads,some spitting drops of blood. Guilt goes withcommunity of intent coupled with participatorypresence or operation. No finer juristic niceties canbe pressed into service to nullify or jettison the plainpunitive purpose of the penal code.

In Krishna & others v. State,21 it has beenheld that acts of all accused need not be the sameor identically similar. They must be actuated by oneand the same common intention. The reason why allare deemed guilty in such cases is that the presenceof accomplice gives encouragement, support andprotection to the person actually committing the act.The provision embodies the common sense principlethat if two or more persons intentionally do a thingjointly, it is just the same as if each of them haddone it individually.

17Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.18Rishi Dev Pandey v. State of U.P., AIR 1955 SC 331 (3JJ),19Laxman v. State of Maharashtra, AIR 1974 SC 1803 (3JJ),20Harshad Singh Pahelwan Singh Thakore v. State of Gujarat, (1976) 4 SCC 640,21Krishna & others v. State, (2003) 7 SCC 56



In Surendra Chauhan v.State of M.P.,22 it has been heldthat to apply section 34, apart from the fact thatthere should be two or more accused, two factorsmust be established–(i)common intention and (ii)participation of the accused in the commission of anoffence. If a common intention is proved but noovert act is attributed to the individual accused section 34 will be attracted as essentially it involvesa vicarious liability but if the participation of theaccused in the crime is proved and a commonintention is absent, section 34 cannot be invoked.

Under section 34 a person must be physicallypresent at the actual commission of the crime forthe purpose of facilitating or promoting an offence.

Such presence of those who in one way or the otherfacilitate the execution of common design is itselftantamount to actual participation in the criminalact. No direct evidence of common intention isnecessary. For the purpose of common intentioneven the participation in commission of offenceneed not be proved in all cases. The commonintention can develop even during the course of anoccurrence. In Janak Singh v. State of U.P.23it has been held thatsection 34 I.P.C. is applicable even if no injury iscaused by a particular accused. In Lallan Rai Vs.State of Bihar,24 relying upon thedictum laid down in Mohan Singh v. State of Punjab,25it was heldthat essence of section 34 is simultaneousconsensus of the mind of persons participating inthe criminal action to bring about a particular result.

Under section 313 Cr.P.C. both the accused have denied incriminating circumstances appearing against them. In Joseph v. State of Kerala26, Vasa Chandra Shekhar Raov. Ponna Satyanarayana27andAftab Ahmad Ansari v. State of Uttaranchal28, it has been heldthat blunt and outright denial of everyone and allincriminating circumstances by the accusedprovides missing links to connect him with deathand the cause for death of the victim.

In Santosh Kumar Singh v. State through CBI29 (Priyadarshini Mattoo’s case), again been held that if in case of circumstantialevidence false plea is taken by the accused then itwill be another link in the chain of circumstances.

In Munish Mubar v. State of Haryana,30it has been held that it isobligatory on the part of the accused while beingexamined under section 313 Cr.P.C. to furnish someexplanation with respect to incriminatingcircumstances associated with him. Court must takenote of such

22Surendra Chauhan v. State of M.P., (2000) 4 SCC 110,23Janak Singh v. State of U.P., 2004 Cr.L.J. 2533 (SC),24Lallan Rai Vs. State of Bihar, (2003) 1 SCC 26825Mohan Singh v. State of Punjab, AIR 1963 SC 17426Joseph v. State of Kerala, AIR2000 SC 1608 (3JJ),27Vasa Chandra Shekhar Rao v. Ponna Satyanarayana, AIR 2000 SC 213828Aftab Ahmad Ansari v. State of Uttaranchal, (2010) 2 SCC 58329Santosh Kumar Singh Vs. State through CBI, (2010) 9 SCC 74730Munish Mubar v. State of Haryana, (2012) 10 SCC 464.



explanation even in a case ofcircumstantial evidence so as to decide whetherchain of circumstances is complete.

CONCLUDING REMARK BY LD. JUDGE

Toperorate, it is proved beyond reasonable doubt thatthe accused are the perpetrators of the

crime inquestion. The parents are the best protectors of their own children- that is the order

of human nature but there have been freaks in the history of mankind when the father and

mother became the killer of their own progeny. They have extirpated their own daughter who

had hardly seen 14 summers of her life and the servant without compunction from terrestrial

terrain in breach of Commandment 'Thoushall not kill' and injunction of Holy Quran-

“Takenot life, which God has made sacred”. They arealso found guilty of secreting and

obliterating theevidence of the commission of the murders toscreen themselves from legal

punishment. Inaddition to that Dr. Rajesh Talwar is also foundguilty of furnishing false

information to the policeregarding the murder of his daughter by Hemraj.

Both the were convicted under sections 302 r/w 34, 201 r/w34 I.P.C. In addition to that Dr.

Rajesh Talwar was alsoconvicted under section 203 I.P.C. Theyare on bail. Their bail was

cancelled, sureties aredischarged and they were taken into police custody.



CONCLUSION

The case which involved a very lengthy trial in itself ultimately became a blot on the Indian

investigation system and the manner in which the responsibility was shirked by the CBI in

conducting the investigations. It involved only of those case which came into the media

spotlight raising questions as to whether all investigations are carried out with such

incompetence. The sensational media coverage, which included salacious allegations against

Aarushi and the suspects, was criticized by many as a trial by media.

The police were heavily criticized for failing to secure the crime scene immediately. After

ruling out the family's ex-servants, the police considered Aarushi's parents — Dr. Rajesh

Talwar and Nupur Talwar — as the prime suspects. The police suspected that Rajesh had

murdered the two after finding them in an "objectionable" position, or because Rajesh's

alleged extra-marital affair had led to his blackmail by Hemraj and a confrontation with

Aarushi. The accusations enraged the Talwars' family and friends, who accused to police of

framing the Talwars in order to cover up the botched-up investigation. The case was then

transferred to the CBI, which exonerated the parents and suspected the Talwars' assistant

Krishna along with two domestic servants — Rajkumar and Vijay. Based on the narco

tests conducted on the three men, the CBI suspected that they had killed Aarushi after an

attempted sexual assault, and Hemraj for being a witness. The CBI was accused of using

dubious methods to extract a confession, and all the three men were released after it could not

find any solid evidence against them.

The decision of the Ld. Judge received mixed responses. It remains to be seen what the

Allahabad High Court rules in this matter as the Talwars’ have filed an appeal against the

impugned judgment.



BIBLIOGRAPHY

Books and Articles:-

1. Ratanlal & Dhirajlal, The Law of Evidence, 25th Edition, B.M. Prasad and Manish Mohan.

2. http://blogs.wsj.com/indiarealtime/2013/11/27/judgment-in-full-aarushi-talwar-murder-

case/

3. http://ibnlive.in.com/news/26-reasons-why-cbi-court-sentenced-talwars-in-aarushi-case/

436309-3-242.html

Internet Sites:-

1. www.manupatra.com.

2. www.indiankanoon.org.

3. www.scconline.com.


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