ALLAHABAD HIGH COURT
Bala Krishna Narayana and
Arvind Kumar Mishra-I, JJ.
Dr. (Smt.) Nupur Talwar —Appellant
versus
State of U.P. and Anr. —Respondents
with
Dr. Rajesh Talwar —Appellant
versus
State of U.P. and Anr. —Respondents
Criminal Appeal No.293 of 2014
with
Criminal Appeal No.294 of 2014
Decided on 12.10.2017

IMPORTANT POINT
Passionate and rash reasoning should not be guiding factor while scrutinizing evidence, facts and circumstances of a criminal case.

Headnote:Per Bala Krishna Narayana, J.

       (A) Indian Penal Code, 1860—Sections 302/34, 201/34 and 203—Aarushi murder case—Circumstantial evidence—Appeal against conviction and sentence—Appellants have been charged and convicted for having committed murder of their only daughter and their domestic help in an extremely gruesome and diabolic manner within premises of their residential flat—There cannot be a safer haven for a child than his/her home—There is no direct evidence on record proving complicity of appellants in commission of double murder—Medical evidence found to be contradictory—Prosecution in order to further corroborate theory of sexual intercourse and case of grave and sudden provocation not found to be credible—Doctors committed medical blasphemy in supporting prosecution case of sexual intercourse and consequent grave and sudden provocation theory—Prosecution has failed to prove by any reliable or cogent evidence, motive suggested by prosecution for appellants to commit double murder—There are material discrepancies in evidence of witnesses produced by CBI— Prosecution witnesses made material improvements in their evidence tendered during trial by deposing facts in their testimonies which are conspicuous by their absence in their previous statements recorded under Section 161 Cr.P.C.—Credible evidence of alternative hypothesis available on record substantially demolishes prosecution theory that crime was committed by appellants alone as there was no proof of any outsiders having accessed into apartment—No evidence for proving that case properties had remained in safe custody after same were returned to Malkhana by CDFD was led by CBI nor Malkhana register was placed on record—Investigating authorities had deliberately not filed photographs of most controversial exhibits—Chain of circumstances is grossly incomplete and broken—Appellants acquitted of all charges framed against them. (Paras 44, 45, 65, 68, 80, 142, 162, 194, 198, 222, 228, 232, 256, 257 and 264)

       (B) Criminal Law—Circumstantial evidence—Same has to be of highest order to satisfy test of proof in a criminal prosecution—In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture—In a case based upon circumstantial evidence prosecution has to prove motive. (Paras 51, 52, 54 and 58)

       (C) Indian Evidence Act, 1872—Section 145—Contradiction of a witness—When it is intended to contradict a witness by his previous statement reduced into writing, attention of such witness must be first drawn to those parts of his earlier statement reduced into writing which are to be used for the purpose of contradicting him, if the witness is not confronted with that part of statement with which defence intended to contradict him, then Court cannot suo moto make use of statements made to Police not proved in accordance with Section 145 of Evidence Act. (Para 93)

       (D) Indian Evidence Act, 1872—Section 65B—Electronic evidence—Admissibility in evidence—Electronic record is inadmissible in evidence without certification as provided under Section 65B—Evidence relating to electronic record being a special provision, general law on secondary evidence under Section 63 read with Section 65B of Evidence Act shall yield to the same—Certificate issued under Section 65B must conform to requirements prescribed under Section 65B of Evidence Act. (Para 124)

       (E) Indian Evidence Act, 1872—Section 106—Burden of proof—When an offence like murder is committed in secrecy inside a house, initial burden to establish case would be upon prosecution—In view of Section 106 of Evidence Act, there will be a corresponding burden on inmates of house to give cogent explanation as to how crime was committed—Inmates of house cannot get away by simply keeping quiet and offering no explanation on supposed premise that burden to establish its case lies entirely upon prosecution and there is no duty at all on accused to offer—Prosecution has to establish guilt of accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty—It is only when initial burden has been discharged by prosecution that defence of accused has to be looked into—Section 106 of Indian Evidence Act cannot be applied to fasten guilt on accused, even if prosecution has failed in its initial burden. (Paras 240 and 246)

       Per Arvind Kumar Mishra-I, J.

       (Assenting View)

       Indian Penal Code, 1860—Sections 302/34, 201/34 and 203—Aarushi murder case—Appeal against conviction and sentence—Trial Judge has prejudged things in his own fashion, drawn conclusion by embarking on erroneous analogy conjecturing to brim on apparent facts telling a different story propelled by vitriolic reasoning—Basing finding of conviction without caring to see that it being a case based on circumstantial evidence things cannot be presumed and stuffed in a manner like present one by adhering to self-created postulates then to roam inside circle with all fanciful whim—Trial Judge was unmindful of basic tenets of law and its applicability to given facts and circumstances of case and failed to properly appraise facts and evaluate evidence and analyse various circumstances of this case—In such sensitive cases, trial Judge should act with utmost circumspection and caution—Parochial and narrow approach to facts and evidence should be avoided and evidence of a particular case has to be read and construed on its face value in line with statutory requirement—Passionate and rash reasoning should not be guiding factor while scrutinizing evidence, facts and circumstances of a criminal case—Self-perception and realm should not be reflected on analogy of facts and evidence on record—Judgment should not be based on self-created postulates—Imagination should not be given a concrete form and transparency of approach must be reflected in judgment. (Paras 3, 6, 7 and 9)

       Result: Appeals allowed.