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Divulgation Of The Double Murder Case - The Talwars (By-Keval Pankaj Khona & Ritika Ghosh)
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Divulgation Of The Double Murder
Case - The Talwars
Authored By-Keval
Pankaj Khona & Ritika Ghosh
Abstract
The murder of Aarushi Talwar, a
14-year-old girl, and Hemraj Banjade, a 45-year-old male domestic staff
employed by her family, famously known as the “Double murder case” is still a
mystery. This research paper not only makes people understand the present case
in detail but also analyzes some of the most crucial issues that have
subsequently arisen in the due course of the investigation. This research paper
also points out irregularities in the investigation and gives a wide
interpretation of the same.
Introduction
The
Aarushi Talwar Double Murder case has left the entire country in despair.
Filled with loopholes and mysteries, this case is well known for its stake in
the double murder investigation. Let us understand explicitly the double
murder. The basic two essential ingredients of crime are mens rea and actus
reus. Mens rea is guilty mind i.e., the intention of committing a crime, while
actus reus refers to the guilty act, which is a necessity to prove that a
criminal act was committed. The guilty act can either be a commission of an
unlawful act, or an omission of an act that a person was legally bound to do.
Murder comes under offenses committed against human life. Murder is defined under Section 300
of the Indian Penal Code, 1860. According to this Act, culpable homicide is considered murder if the
following conditions are met:
- The act is carried out to cause death.
- The conduct is committed with the aim to cause such bodily damage
that the perpetrator knows would result in death.
- If a person is aware that his act is risky and likely to result in
death or physical damage but yet goes ahead and does it, this is
considered murder.[1]
Murder,
under section 302 of the India Penal Code, 1860 states “Whoever kills any
person, shall be punished with death or with imprisonment for life, as well as
with fine.”[2]
One such form of murder is Double Murder.
A
double murder is a murder or unlawful death of two victims by one perpetrator.
It is typically a description of a circumstance, rather than a formal legal
term, in which a person is accused of killing two people and is charged with
two counts of homicide or murder, rather than a single charge that includes
both deaths. In a
nutshell, a double murder occurs when two individuals are killed in the same
place, or when two people are slain as part of the same action or scenario.
Let us proceed with the present case
for highlighting the event of a double murder.
Factual Background
Dr. Rajesh and Nupur Talwar are the
main suspects in the murders of their only daughter Aarushi Talwar and their
domestic assistant Hemraj. The following are the essential details of the case:
1) Only days before her 14th birthday,
Aarushi Talwar was discovered dead at her parents' house in Jalvayu Vihar,
Noida. Hemraj, the primary suspect, has gone missing. Hemraj stayed in Talwars'
apartment.
2) May 17, 2008: Hemraj is discovered
dead on the roof the next day.
3) On May 23, 2008, the Noida Police
mishandled the investigation on multiple fronts, including giving media access
to the crime scene before collecting evidence. Dr. Rajesh Talwar, Aarushi's
father, was also arrested by Noida police for the double murder.
4) Senior Noida police officers
indicated after Rajesh Talwar's arrest that Dr. Rajesh and Nupur Talwar were of
questionable character; the deceased Aarushi was not spared, and she is accused
of being of questionable character as well.
5) June 1, 2008: Aarushi's parents seek
that the matter be turned over to the CBI. Neither the murder weapon nor
Aarushi and Hemraj's smartphones have been found.
6) June 2008: CBI arrests four guys who work as domestic
assistants for the Talwars or their friends and neighbors. Tests on narcotics
are inconclusive, and the four are later released due to a lack of evidence.
7) July 2008: The CBI declares that
there is no evidence against Dr. Rajesh Talwar, and he is released from prison.
8) The CBI retrieves Aarushi's
smartphone, but it contains no evidence that points to the perpetrator.
9) Narco- Analysis tests were conducted for the
accused parents and fellow friends of Late Hemraj.
10) December 29, 2010: The CBI submits a
closure report in a Ghaziabad court. Even though the CBI has no proof to place
the murders on one individual, the report claims that Dr. Rajesh Talwar is the
key suspect in both cases.
11) Based on the report, the court orders Rajesh
and Nupur Talwar's trial, charging them with murder and evidence destruction.
12) On January 6, 2012: The Talwars filed a motion
with the Supreme Court to have the trial dismissed since they claim there is no
evidence against them. The Supreme Court permits the trial to proceed.[3]
Based on the facts mentioned
hereinabove, certain pertinent issues have arisen that are worth a ponder, they
are:
ISSUE 1
Whether the Magistrate's issuance of
the procedure under Section 204 of the Criminal Procedure Code was lawful after
the highest investigating agency, the Central Bureau of Investigation, asked
for the case's closure owing to a lack of substantial evidence in its
conclusion report?
The grounds for issuing process are
not required to be recorded under Section 204 of the CrPC. It says any
Magistrate can take notice of an offense and issue the process if he believes
there is adequate reason for proceeding. The Magistrate who issued the summons,
on the other hand, issued a reasoned order.
According to Section 204, the Magistrate must
develop an opinion that there is adequate justification for proceeding, and the
view must be formed judicially. The
court concluded in Dy. Chief Controller of Imports and Exports v. Roshanlal
Agarwal and Ors[4] that the
only criteria for determining whether or not a process should be issued are
that the Magistrate must be satisfied that there is good justification for
proceeding but not an adequate ground for conviction, it was also decided in
the case of Kanti Bhadra Saha v. State of West Bengal[5]
that the Trial Court is not required to draught an order stating the reasons
for filing a charge. Giving explanations for issuing the procedure is entirely
superfluous.
When a revision is filed against an
order issuing process against an accused person, the Supreme Court has stated
that the Revisional Court cannot consider whether the grounds offered by the
Magistrate were excellent or poor, adequate or insufficient.
In the present case:
The parents of Aarushi Talwar were called
by the magistrate; they responded by submitting a review petition to Allahabad
High Court; however, after the High Court denied the case, a special leave plea
was filed in the Hon'ble Supreme Court. When S.L.P was dismissed, the parents
filed an instant review petition, which was granted, in which the parents
wished to have the order in S.L.P reviewed.
ISSUE 2
Whether the investigation conducted
by the Investigating Agency was questionable?
Yes, definitely the investigation
conducted by the investigating agency was questionable. There were many
instances where the investigation can be termed faulty. In totality, two
investigation teams were investigating the same case one after the other. It is
pertinent to see that the second investigation team relied on the finding of
the Noida police. However, the police investigation was itself very faulty and
irregular. For instance, The Scotch bottle, blood-stained bedsheets and pillow
covers, and the bedsheet that covered Hemraj's body were recovered by the Noida
police, but they have labeled in such a way that the forensic results were
confusing. They were unable to obtain a clean fingerprint from the Scotch
bottle.[6]
The blood traces heading to Talwar's
terrace were pointed out by his neighbors. Initially, authorities rejected the
stains, referring to them as "paan stains," which may have been the
victims' or the murderer's blood. They were cleaned and wiped down. The media
were free to stroll about the terrace and take pictures, corrupting the
evidence.
The blood of Hemraj found on the
pillow cover caused a lot of consternation among the investigators. The pillow
cover was retrieved from Krishna's room (friend of Hemraj), according to the
defense, while it was recovered from Aarushi's room, according to the
prosecution. The police never took a sample of a wall between the victim's room
and her parents' room, therefore the idea that the parents could hear or
couldn't hear the sound from their daughter's room was never proven. Even the
post-mortem report was not properly taken.
Owing to so many irregularities, it
was very clear that the Police investigation was not an authentic investigation
and the second CBI team should not have relied on the police's story. However,
the first CBI team did an investigation on its own. But because of the blunder
created by the Noida police, it was very difficult for them to carry out a
swift investigation. However, CBI team 1 and team 2 both had their own stories
and theories. It is questionable because both the investigations that were
conducted did not succeed in gathering sufficient evidence to prove their
contentions.
ISSUE 3
Whether a person can be convicted
based on the last seen theory without substantial evidence?
The burden of proof for an accused is
placed on him under Section 106 of the Evidence Act of 1872, which states that
he must prove facts that are within his knowledge. Before you begin, review the
meanings of proved, disproved, and not proven. Assume you were spotted entering
a room alone with a friend, who was assassinated minutes later by a fleeing
assassin. The cops don't believe you and accuse you of murdering someone. At
trial, how the death occurred will be established as a fact, based on your unique
information. You bear the burden
of proving that the death occurred in
the manner you claim, but not beyond a reasonable doubt, which constitutes to
be the theory of last seen[7].What
if you don't succeed? Your fact is disproved if the Court believes the
prosecution. The fact remains unproven if neither party can persuade the judge.
How does the prosecution present the
theory of the last seen? It must establish (a) the time when the accused was
last seen with the deceased, (b) the time of death, and (c) a strong link
between the two to rule out any outside intervention [For example, Bodhraj v.
State of Jammu & Kashmir[8];
Mohd. Azad v. State of West Bengal[9];
Shyamal Ghosh v. State of West Bengal.[10]]
Applying
It To This Case-
The prosecution's case was to show a
specific chain of events that could only lead to one conclusion: the accused's
guilt. The last seen theory was used to try to fill a big gap. Because there
was no other person in the residence that night, the accused must explain what
transpired.
Were the initial conditions met,
however, for the last seen theory to be pursued? On May 15, 2008, around 9.30
p.m., everyone was last seen together. Between this and Aarushi's death, there
might have been a three-hour gap. An uncertain time of death causes a possible
4–5-hour gap for Hemraj. This is significant, especially since there was no
security officer on duty to check if someone entered the property late at
night.
Even if this were adequate, what
about the accused's explanation? They claimed they were sound sleeping, and
that any noise was drowned out by the air conditioning. Perhaps because it made
too much logic, the court chose not to trust it. The prosecution's arguments in
the Aarushi Talwar murder case overlapped because there was only one main
hypothesis and several supporting hypotheses. The prosecution's explanations
that were added to its arguments were too vague.
First off, it was impossible to
choose the most appropriate murder weapon to utilize. Second, the medical results
eliminated any chance that Hemraj had had any sexual relations with or
assaulted the deceased victim.
The Sound Simulation Test and Crime
Scene Reconstruction Report were considered by the Allahabad High Court, which
concluded that both were in line with the defense of the accused since the
C.B.I. had neglected to produce the report before the trial court. These
reports made it abundantly evident that even if the accused were sleeping with
their air conditioners on at night, the couple could not have noticed the
arrival of the outsiders due to the noisy and obtrusive sounds the air
conditioners were making.
Following this, the prosecution's
version of events suffered a severe blow, and the sequence of events proving
the accused's guilt was severely disrupted. Instead, it was believed that a
14-year-old girl had willingly opened her chamber to allow her 45-year-old
servant for intercourse, only to be found in the act by her father, who killed
both of them.
Mistakes
About The Law?
The decision is laden with case law
citations and discussion. The Court explains on Page 86,
“Where an offence like murder is
committed in secrecy inside a house, the initial burden to establish the case
would, undoubtedly, be upon the prosecution, but the nature and amount of
evidence to be led by it to establish the charge cannot be of the same degree
as is required in other cases of circumstantial evidence. The burden would be comparatively lighter. Given section 106 of the
Evidence Act, there will be a corresponding burden on the inmates of the house
to give a cogent explanation as to how the crime was committed. The
inmates of the house cannot get away by simply keeping quiet and offering no
explanation on the supposed premise that the burden to establish its case lies
entirely upon the prosecution and there is no duty at all on an accused to
offer any explanation”[11]
Here,
I believe the Judge reveals himself. He incorrectly puts the prosecution to a
lower standard just because the accused was not there. He further conflates the
convincing burden of proving the accusation with the burden of proving facts
under Section 106. It is an acquittal if the accused can show that the deaths
happened as they claimed. Is it always the end if you can't prove your case?
No. Either side may not be able to prove the fact.
That is to say, while the facts reveal that
the victims were murdered, neither side has been able to explain how it
happened. As a result,
the accused persons cannot be judged guilty of murder.
ISSUE 4
"Can a crime be proven without
the presence of mens rea or motive?"
Is it possible for a couple to be
sentenced to life in prison despite the fact that there is no direct evidence
against them and the investigating agency believes that no one else but them
could have committed two murders? The Allahabad High Court, in acquitting
Rajesh and Nupur Talwar for the sensational Aarushi-Hemraj murders, essentially
answered this question in the negative.
In essence, the reason for the
murders is unknown, the murder weapon is unknown, and forensic proof is
lacking. The CBI's only goal was to prove that no outsiders could enter a 1300
square foot flat, conduct two murders, and even have a drink while the Talwar
couple was sleeping in the next room. The HC required more evidence before
convicting two defendants to life in prison. The tragedy is that, in light of
this textbook case of inquiry bungling, no one may ever know who killed Aarushi
and Hemraj.
ISSUE 5
"Whether the Narco-Analysis Test
is admissible?"
The use of the Narco-investigation
test includes the central inquiry relating to legal issues and Human Rights.
The legitimate situation of applying this method as an insightful guide raises
veritable issues like infringement of a person's privileges, freedoms, and
opportunities.
In the event of State Bombay v.
Kathikalu, it was held that it must be indicated that the accused was
constrained to offer expression liable to be incriminative of himself. Impulse
implies coercion, which incorporates undermining, beating, or detainment of the
spouse, parent, or offspring of an individual. Hence where the charge makes an
admission with no instigation, danger, or guarantee of workmanship 20(3)
doesn't matter. In this way, the advantage against self-implication aids in the
maintenance of human security and the acceptance of enlightened standards in
the application of criminal justice.
The privilege against constrained
self-implication, generally known as the Right to Silence, is cherished in the
Code of Criminal Procedure (CrPC) and the Indian Constitution. It is said that
Narco-examination comprises mental torment and hence abuses the privilege of
life under Article 21 as it manages the right to protection. Once more, the law
against interruption in the protection of individuals would not permit mind
fingerprinting proof to be given in court.
The current criminal equity framework
is hard with singular freedom and opportunity and in this setting, a protected
entry is unavoidable to crooks because of shortcomings in the criminal equity
framework prompting the weakening of proof. This move will achieve a subjective
change in criminal equity. Be that as it may, unavoidable issue blemishes the
legitimacy of the Narco-examination test when requesting equity by a denounced
person.
The Narco test possibly can be
inaccurate, when everything in exploring fizzles. Each person is blameless
until proven guilty, and a similar mindset should be maintained throughout any
criminal investigation. In a circumstance where the Narco investigation is
increasing legal acknowledgements and supports despite being a questionable
science, we need to seriously re-examine its legitimacy from a personal freedom
point of view.
Our Views/ Conclusion
After
reviewing the facts and circumstances of the case, it may be concluded that the
CBI's special court was unable to perform its duties since the investigation
branch failed to establish an explicit sequence of events. In addition, the
major motive for the crime against Aarushi's parents has not been determined.
The parents were also found not to have a clear motivation for the crime. There
was no substantive evidence, and none of the prosecution's hypothetical
scenarios could be proven.
We are of a
firm opinion that the Police investigation should be carried out with proper
scrutiny and attending rightly to the minute details for delivering timely
justice and efficiently proving the investigation to be worthwhile. One
careless mistake can cost someone their life. If Noida Police, being the first
administrators of the crime scene here, were vigilant enough to cover all the
pieces of evidence and aspects of the double murder, the true criminals would
be behind bars without a doubt. CBI, being the superior investigating agency of
India, shockingly failed to retrieve any supporting evidence and hereby walked
on the paved way of the Noida Police's investigation, the one failing to cover
the loopholes.
The murder
case of Aarushi Talwar is regarded as one of the most perplexing situations the
Indian judiciary has ever seen. This case has several defects and
contradictions, which makes it an insoluble mystery to this day. One of the key
features of this case was the investigations and law enforcement agencies' poor
performance, which undermined public confidence in the pursuit of justice. Who
killed Aarushi Talwar has not been determined, and it is worrying that no steps
have been made to identify the person responsible for these crimes.
A
high-profile case like this draws a lot of attention, and this case garnered a
lot of it from the media and the public. The public's trust in the court system
must be maintained for meaningful justice to be delivered to the victim.
Article Information
Divulgation Of The Double Murder Case - The Talwars (By-Keval Pankaj Khona & Ritika Ghosh)
Authors: Keval Pankaj Khona, Ritika Ghosh
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/12
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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