Critical analysis of Arushi Talwar murder case.
Author: Pragya Jain & Taniya Roy
The Arushi- Hemraj Double murder case is an unsolved mystery of the murder of a 13-year old girl Aarushi Talwar and a man 45-year-old Hemraj Banjade, a male domestic servant employed by her family. Prima facie, the case appeared to be a case of honour killing as the evidence showed that the murder was done with surgical precision. During the trial period, the issue of the process by the Magistrate regarding the summon of the Talwars was also questioned. However, all the grounds regarding the proceedings were satisfied. Further, we will discuss the relevancy of section 204 of CrPC with this case. On June 1, 2008, CBI took over the case from the Delhi Police. In the investigation done by the CBI, the help of the NarcoAnalysis Test, Polygraph test and Brain Mapping was taken. But this evidence was considered to be insufficient. We will also discuss the inefficiency of the Police and CBI investigation in this case, where the first CBI team claimed that the servants were the murderers while the second team gave a contradictory statement stating the Talwars to be the murderers. Finally, Allahabad High Court acquitted the dentist couple Rajesh and Nupur Talwar giving them the benefit of doubt. Further, in this assignment we have tried to determine whether the judgment passed by the CBI Court was in the light of justice, the investigation conducted by the police was proper or not, and why narco analysis test can’t be admissible in the Court and the different facets of law involved.
Aarushi Talwar, 13-year-old, was found dead with her throat slit in her bedroom in flat no. L-32 Jalvayu Vihar in Noida on the morning of May 16, 2008. Hemraj, who was the family’s domestic help was missing and thus, suspected of the murder.
On May 17 Hemraj was found in a pool of blood on the terrace of the flat.
Chain of events hereafter was as follows:
May 18: Noida police claimed the twin murders were done with surgical precision, insider job was suspected.
May 19: Former domestic help Vishnu Sharma was also suspected.
May 21: Delhi police joined the probe.
May 22: Police suspected it to be a case of honour killing. Police spoke to Aarushi’s friend.
Her parents were suspected.
May 23: Rajesh Talwar, Aarushi’s father, was arrested for double murders.
June 1: CBI took over the case from Noida police.
June 13: Krishna, domestic help of Talwar’s was arrested.
June 20: Lie detection test of Rajesh Talwar was conducted.
June 25: Second lie detection test was done on Nupur Talwar, Aarushi’s mother, as the first test was found inconclusive.
June 26: CBI claimed it to be a “blind case”. Bail appeal was refused for Rajesh Talwar by Ghaziabad Magistrate.
July 12: Rajesh Talwar got bail.
February: Narco-analysis tests on Rajesh Talwar was conducted between February 15 to February 20.
December 29: CBI team filed a closure report citing “insufficient evidence.” Servants got clean chit and Talwars remained prime suspects.
Feb 9: the Trial court rejected CBI’s closure report and summoned Aarushi’s parents to face murder charges.
February 21: Talwars approached Allahabad High Court for quashing trial court summons.
March 18: Allahabad HC dismissed their plea.
March 19: The couple approached the Supreme Court.
January 09: Supreme Court said the bail granted to Rajesh Talwar by the lower court in the ‘Aarushi murder case’ would continue and that he should appear before the Ghaziabad Magistrate to face trial along with his wife, Nupur Talwar.
November 2013: The couple was convicted for the double-murder and sentenced to life imprisonment by a special Central Bureau of Investigation court in Ghaziabad.
October 12: The Allahabad High Court acquitted the dentist couple Rajesh and Nupur Talwar giving them the benefit of doubt.
RESEARCH SCOPE AND OBJECTIVE
The objective is to determine whether the judgment passed by the CBI Court was in the light of justice and the investigation conducted by the police was correct or not.
The scope is limited to the facts and investigation procedure and the analysis is drawn from the personal research and not from the judgment passed by the CBI Special Court or High Court through Doctrinal Research.
Media is the eye, ear and mouth of the society. It has social power and responsibilities which it is entitled to perform. Media covered the double murder case of Aarushi Talwar and Hemraj and it was at the press conference that senior officers of the Noida police accused the Talwar couple and their deceased daughter of dubious character. It was because of the unrelenting media pressure and the faulty investigation conducted by the Noida police that everyone accused Rajesh Talwar of the murders.
- Whether the issue of the process by the Magistrate under Section 204 of Criminal Procedure Code was valid, after the supreme investigating agency, Central Bureau of Investigation in its end report prayed for the closure of the case due to lack of substantial evidence?
- Whether the investigation conducted by the Investigating agency was questionable?
- Whether a person can be convicted based on the last seen theory without substantial evidence?
- Whether a crime can be established without mens rea or motive?
- Whether the Narco- Analysis Test is admissible?
- Issue of process
In February 2011 the Magistrate issued a summoning order to the parents of the victim even when CBI’s end report prayed for the closure of the case and Dr. Rajesh Talwar, father of victim Aarushi Talwar had prayed for further investigation. The parents filed a revision petition before the High Court of Allahabad which was dismissed and thus they approached the Supreme Court by filing a Special Leave Petition questioning the summoning order.
- Issue of process under the statute
Section 204 of CrPC states that any Magistrate can take cognizance of an offence and issue the process when he is satisfied that sufficient ground for proceeding exists. There is no legal requirement in Section 204 to record the reasons for issuing process. However, the Magistrate who issued the summoning order passed a reasoned order. Under Section 204 Magistrate has to form an opinion that there was sufficient ground for proceeding and the opinion had to be formed judicially and here through reasoned order Magistrate has already fulfilled the statutory obligation by expressing sufficient grounds for proceeding.
- Landmark judgments supporting the contention
In the case of Kanti Bhadra Saha v. State of West Bengal, it was held that there is no legal requirement that the Trial Court should write an order showing the reasons for framing a charge. It is completely unnecessary to give reasons for issuing the process.
In the case of Dy. Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors, the court concluded that in determining the question whether any process is to be issued or not, the only criteria is that the Magistrate has to be satisfied that there is sufficient ground for proceeding and not sufficient ground for conviction.
In the case of Bhushan Kumar and Another v. State (NCT of Delhi) and Another , the court held that a summon is a process issued by a court calling upon a person to appear before the Magistrate. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, the summons may be issued.
In the instant case, the next question is whether Magistrate had sufficient grounds for proceedings against the parents of the victim. In the summon order the Magistrate had clearly mentioned the fact that the Talwar resident was inhabited by four people of which two were dead and there was no sign of forced entry and thus the other two might have further information.
- The question in the investigation began when the investigation was under the Noida police. The Noida police collected the Scotch bottle, blood-stained bedsheets and pillow cases from the Talwar house and the bed-sheet that covered Hemraj’s body, however, they labeled them in such a way that the forensic results were confusing. They could not get a clear fingerprint from the bottle of Scotch. Talwar’s neighbors pointed the blood stains leading to the terrace. Initially, police dismissed those stains and called them “paan stains” which could have been the blood of the victims or the murderer. They were wiped and cleaned. The journalists were allowed to walk all over the terrace and click photographs thus contaminating the evidence. CBI collected bloodied water from the cooler and scraped the blood stains from the roof which were earlier missed by the Noida police. The investigating team created a lot of confusion regarding the blood of Hemraj found on the pillow cover. The defence said the pillow cover was recovered from Krishna’s room but the prosecution claimed it was recovered from Aarushi’s room. Thus one of the most incriminating evidence was also contaminated. The post-mortem report did not mention any sexual assault on Aarushi however, Dr. Sunil Dhore in his testimony later talked about open vaginal cavity and white discharge. Dr. Naresh Raj presumed that Hemraj’s penis was swollen because he was either in the middle of or about to have sexual intercourse. There was no medical reason behind his presumption thus it was a medical blasphemy. CBI collected the clothes that the Talwar’s were wearing on the night of the crime which was completely ignored by the Noida police. The police never collected the sample section of a wall existing between the room of the victim and her parents and thus the theories of parents being able to or not being able to hear the sound from their daughter’s room could not be proved. The CBI never tried to gather evidence based on the narco-analysis test of Krishna and Rajkumar. The first CBI team claimed them to be the murderers, on the other hand, the second team had put the onus on the Talwars. Investigating reports of two teams of one agency were contradicting each other.
- Last seen theory is a jurisprudential concept where the accused can be proven guilty
- Accused was the last person who
was seen with the victim.
- The chain of events was not broken.
- The guilt of the accused was established.
Statutory provisions stutting this concept are:
Section 106 of the Indian Evidence Act states that the burden of proof lies on the person who has the knowledge of the fact.
Section 114 of the Indian Evidence Act states that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
In this case, since the parents were the only 2 surviving inhabitants of the house, the burden of proof was shifted from prosecution to them as the court held that they could only hold the knowledge of the crime. The court presumed that the parents weren’t sleeping as the internet router was turned on quite a few times that night.
In the case of Satpal Singh v. State of Haryana, judgment dated 1st May 2018 the Division Bench of the Supreme Court has fundamentally stated that last seen theory as a facet of circumstantial evidence is a weak kind of evidence if the conviction is to be solely based on it. The courts held that this theory is not sufficient in the absence of direct evidence. However, this theory is applicable when the motive is established and the chain of circumstances is proved beyond a reasonable doubt through corroborative evidence.
In the case of Hemraj Laxman Gondane v. The state of Maharashtra, the court held that the conviction recorded merely on the theory of last seen together cannot be maintained merely on a suspicion however strong it may be or on the conduct of the accused.
In the case of Ravinder Prakash and Another v. State of Haryana, the link in the chain of circumstances must not be broken in order to convict the accused.
Even though the parents were the only people in the house who have seen both the victims, the facts that invalidate this theory in this case are:
- The narco-analysis test of Krishna Thandarai, where he admitted his presence in the Talwar’s residence on the night of the crime was ignored.
- The footprints found in the bed room of Aarushi Talwar did not match either of the parents.
- Since the body of Hemraj was found on the terrace and the house door was locked from outside, the parents definitely couldn’t have been involved in the incident and the clear chain of circumstances couldn’t be established.
- The room of the Hemraj had two doors, one opened in the flat and the other outside the house, thus the culprit could have entered from the other door and thus, the clear chain of circumstances couldn’t be established.
- The prosecution couldn’t prove the guilt of the accused parents.
4. MENS REA:
Actus Non Facit Reum Nisi Mens Sit Rea is the Latin maxim which means the act itself doesn’t constitute the guilt unless done with a guilty mind.
Crime can be divided into two parts:
1.Actus Reus: the criminal act and
2.Mens Rea: the intention or motive behind the crime.
The accused cannot be convicted without the guilty mind being established. In this case, the prosecution couldn’t prove the motive of the Parents to kill their own daughter. The prosecution put forth the hypothesis that they found their daughter in a compromising position with their servant and thus, in a fit of rage they killed both of them, however, no evidence was found to support this contention.
In the case of Deep Kalra v. State of Maharashtra and Another6, the court held that in the absence of Mens Rea, the alleged offence is not maintainable against the applicants.
In the cases of Jagannath v. State of West Bengal7, M. Mammutti v. State of Karnataka it was settled that Mens Rea can be ascertained by evidence but not presumed.
The Narco-analysis test of the parents further proved that they were not involved in the crime.
5. In this case, two sets of narco-analysis tests were conducted that
- that of parents where no link with the murder could be established.
- that of Krishna and 2 other servants where a fierce link with the crime was established.
Narco-analysis, Brain Electrical Activation Profile (BEAP), Functional Magnetic Resonance Imaging (fMRI) and Polygraph are those boons of modern medical science which are being followed as an alternative to third-degree to tap out information that can be used as evidence out of the accused.
The constitutional validity of the narco-analysis test was discussed in the case of Selvi v. State of Karnataka, Supreme Court held these tests to be violative of Article 20(3) i.e., right against self-incrimination. The protection awarded to an accused insofar as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the courtroom but may well extend to compelled testimony previously obtained from him. This phrase is not confined to oral testimony and it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures. An important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the CrPC 1973. Section 53 & 54 of the CrPC (recommended by the 37th and 41st law commission reports) contemplate the medical examination of a person who has been arrested either at the instance of the investigating officer or even the arrested person himself or at the direction of the jurisdictional court. Section 53 contemplates the use of force as is reasonably necessary for conducting a medical examination. Also, an explanation to this section should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence and does not include forms of medical examination that include testimonial acts. The results of the impugned tests are testimonial acts for the purpose of invoking the right against self-incrimination’.The court also held these techniques to be violative of the right to privacy and due process of law.
Reasons why these tests should be allowed to be conducted:
- In the process of extracting information, these can help the investigating agencies to prevent criminal activities in the future and in circumstances wherein it becomes difficult to gather evidence through ordinary means.
- These tests cause no bodily harm by their application and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage.
- This will lead to improvements in fact-finding during the investigation stage and thereby helping to increase the rate of prosecution as well as the rate of acquittal.
The admissibility of these tests will amount to self-incrimination, however, if they are used only for extracting further information where the physical investigation leads to a dead end as in the case of Aarushi’s death these tests should be allowed and further investigation should be made in this regard.
A high profile case, such as this, attracts a lot of attention and this case drew a significant amount of attention from the media and the public. Analyzing the horrendous double murder case of 2008 and its investigation, we consider the CBI Special Court to be unjust as a clear chain of events could not be established by the investigating agency. The clear motive of the crime was also not proved against the parents. There was no substantive evidence and all the hypothetical situations put forth by the prosecution could not be proved.
It is difficult
to avoid external pressure in such a high profile case and thus a sense of
belief is to be put in the judicial system so that justice can be served to the
victims and their families by the Supreme Court.
 (2000)1 SCC 722
 (2003) 4 SCC 139
 Criminal Appeal no. 612 of 2012
 Criminal Appeal No. 737 of 2004
 (2002) 8 SCC 426
 Decided on 16th August, 2019 Decided on 14th August,2019
 AIR 1979 SC 1705
 2010(7) SCC 263