NUPUR TALWAR vs STATE OF U. P. - 2017 Supreme(All) 994

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(All) 994

ALLAHABAD HIGH COURT
BEFORE : BALA KRISHNA NARAYANA AND ARVIND KUMAR MISHRA-I, JJ.
Dr. (Smt.) NUPUR TALWAR ....Appellant
Versus
STATE OF U.P. AND ANOTHER ....Respondents
(Criminal Appeal Nos. 293 and 294 of 2014, decided on 12th October, 2017)

Advocates:
Counsel :
Vikram D. Chauhan, Dileep Kumar, Kuldeep Saxena, Ms. Rebecca M. John, Nikhil Kumar, Rajrshi Gupta, Tanveer Ahmad Mir and Vijit Saxena for the Appellant; A.G.A., Anurag Khanna, Gyan Prakash, S.N. Tripathi, R.K. Saini, Rajeev Sharma and Raunak Chaturvedi for the Respondents.

Headnote:(A) (Indian) Penal Code, 1860—Sections 302 read with Section 34, Section 201 read with Section 34 and Section 203—(Indian) Evidence Act, 1872—Sections 3, 145, 155, 65-B, 63 and 106—Double murder—Conviction—Appeal against—Victim daughter of accused-appellants and domestic help—Appellants convicted and sentenced to digorous imprisonment for life, with fine—Sustainability of—Case based on circumstantial evidence—No direct evidence on record proving the complicity of appellants in commission of double murder—Hypothesis of guilt—Motive thus assumes found importance—As per medical evidence deceased daughter neither subjected to sexual intercourse or any fidding activity—Theory of prosecution that deceased being caught in the midst of a sexual act on the fateful night by accused-appellant, who suddenly got so gravely provoked that he committed their murder, not proved—Motive of murder on part of appellants absent—Post-crime conduct of appellants also not suggested the theory of guilt—Also no evidence to show that cleaning of victim’s bed room was done by PW-15 at behest of appellants—Prosecution also failed to prove that the accused-appellants had destroyed material evidence—Identification of murder weapons “golf sticks” and “surgical scalpal” also not clear—Scientific examination of serology, blood scrappings, finger prints, photographs, DNA-analysis, palm prints did not yeild guilt of appellants—Polygraphs test and psychological assessment also did not point any incriminating substance—Section 106 of Evidence Act cannot be invoked against appellants to convict them for their failure to come up with any explanation for the circumstances under which the double murder were committed in their flat in the intervening night of 15/16.5.2008—Circumstances of this case do not lead to the conclusion that appellants alone were the perpetrators of crime in question—Two views possible, one pointing to the guilt of appellants and other to their innocence—Impugned conviction therefore set aside. [Paras 45 to 264]
       (B) Conviction—Based on circumstantial evidence—Requisites—Circumstance adduced when collectively considered must lead to only irresistible conclusion that the accused alone is the perpetrator of a crime in question—Circumstances established must be of a conclusive nature. [Paras 49 to 55]
       (C) Motive—Significance of—A case if based upon circumstantial evidence the prosecution has to prove the motive. [Paras 58 to 80]
       (D) (Indian) Evidence Act, 1872—Section 65-B—Electronic Evidence—Admissibility—Electronic record is inadmissible in evidence without the certification as provided under Section 65-B of Evidence Act. [Para 124]
       (E) (Indian) Evidence Act, 1872—Section 106—Innvocation of Section 106—Scope—Extent of—Section 106 of Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing innocence—Burden of proof is always upon the prosecution—Aforesaid section cannot be applied to fasten guilt on the accused. [Paras 233 to 254]

JUDGMENT

Hon’ble Bala Krishna Narayana, J.—Heard Sri Dileep Kumar, Sri Tanvir Ahmad Mir, Sri Rajrshi Gupta, Sri Aditya Wadhwa and Sri Dhruv Gupta, learned counsel for the appellants, Sri Anurag Khanna, Senior Advocate assisted by Sri Ronak Chaturvedi, Sri R.K. Saini, Sri Raghav Dev Garg and Sri Hridesh Batra learned counsel for the CBI, Sri Awadhesh Narayan Mulla, Sri Saghir Ahmad, Sri J.K. Upadhyay and Kumari Meena, learned A.G.As., Smt. Manju Thakur and Syed Hasan Shaukat Abidi, State Law Officers for the State and perused the entire lower Court record.

2. These two criminal appeals have been preferred by the appellants Dr. Nupul Talwar and Dr. Rajesh Talwar under Section 374(2) of the Cr.P.C., against the judgement dated 25.11.2013 and order dated 26.11.2013 passed by Shri Shyam Lal, Learned Additional Sessions Judge & Designated Judge under the P.C. Act, Ghaziabad in Sessions Trial No. 477 of 2012 (State of U.P. through CBI v. Rajesh Talwar and another) arising out of RC No. 1(2)/2008/SCR-III/CB/New Delhi, by which both the appellants have been convicted and sentenced to rigorous imprisonment for life and a fine of Rs. 10,000/- each under Section 302/34 IPC, five years rigorous imprisonment and a fine of Rs. 5000/- each under Section 201/34 IPC. In addition Dr. Rajesh Talwar appellant in Criminal Appeal No. 294 of 2014 has been convicted and sentenced to one year simple imprisonment and a fine of Rs. 2000/- under Section 203 IPC. All the sentences were directed to run concurrently.

3. The prosecution case as emerging out from the perusal of the facts stated in the FIR of this case which was lodged by appellant Dr. Rajesh Talwar himself and as later testified by the prosecution witnesses who were examined during the trial for proving the guilt of the accused, defence witnesses and the statements of the accused-appellants recorded under Section 313 Cr.P.C., are that the appellant Dr. Rajesh Talwar successfully completed his master’s course in Prosthetic Dentistry while appellant Nupur Talwar successfully completed her post graduation in Orthodontics and both started practicing in their clinic situated in C-42 Hauz Khas and several other hospitals. The marriage of the appellants was solemnized in the year 1989 and the appellants started residing at A-1/143, Azad Apartments, Aurobindo Marg, New Delhi. Appellant Nupur Talwar gave birth to a female child Aarushi at Sir Ganga Ram Hospital. Thereafter, on account of the fact that mother of Dr. Rajesh Talwar had already expired, in order to give great love and affection to the newly born Aarushi, they decided to buy a flat bearing Flat No. L-32 in Jalvayu Vihar, Noida, the primary consideration being its close vicinity to the flat in which Aarushi’s grandparents and Dr. Nupur Talwar’s parents Group Captain B.G. Chitnis (Retd.) and Smt. Lata Chitnis were residing which would facilitate a better upbringing of Aarushi.

4. In his Noida clinic appellant Dr. Rajesh Talwar was assisted on day to day basis by one Krishna Thadarai who was of Nepali origin. Krishna Thadarai was residing in servant quarter of L-14, Jalvayu Vihar which was at a distance of about 50 meters from the appellants’ flat.

5. In the year 2008 Aarushi was studying in Class 9th in Delhi Public School, Noida. After her school was over she was taken from her school to her grandparents’ apartment from where she was picked up usually by Dr. Nupur Talwar and brought up to her home. Dr. Nupur Talwar’s usual home return time was between 6pm-7pm. Sometimes in the year 2007, the appellants had employed Hemraj who was originally from Nepal, as a permanent domestic help. Hemraj had two daughters, one of whom was physically handicapped and in terms of the statements recorded by the Investigating Officer themselves during the course of investigation, it was found that Hemraj was a very affable domestic help and there had never been any complaint against him regarding misbehaviour or any other reason.

6. Hemraj’s duties as a domestic

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2017 Supreme(All) 994

ALLAHABAD HIGH COURTBEFORE : BALA KRISHNA NARAYANA AND ARVIND KUMAR MISHRA-I, JJ.Dr. (Smt.) NUPUR TALWAR ....AppellantVersusSTATE OF U.P. AND ANOTHER ....Respondents(Criminal Appeal Nos. 293 and 294 of 2014, decided on 12th October, 2017)

Cases Referred (18)

ALLAHABAD HIGH COURT
BEFORE : BALA KRISHNA NARAYANA AND ARVIND KUMAR MISHRA-I, JJ.
Dr. (Smt.) NUPUR TALWAR ....Appellant
Versus
STATE OF U.P. AND ANOTHER ....Respondents
(Criminal Appeal Nos. 293 and 294 of 2014, decided on 12th October, 2017)