Aarushi-Hemraj murder case: CBI goofed up in rush to prosecute Talwars; probe agencies should get their act right

The Arushi Talwar-Hemraj double murder case is a classic example of how India's investigating agencies need to act better. Throughout the judgment of the Allahabad High Court, one sees the many lapses by the CBI, some procedural and some that led to the tampering of the evidence itself.

For example, with respect to the admissibility of the internet records, the State sought to rely on usage logs provided by Airtel to show that the Talwars were not asleep at the time they claimed they were. There was a lot of information to this effect including a new dynamic IP being assigned to their router around 2 am in the morning. These logs were at Kar 21 and 22 of the record. However, the CBI failed to adhere to the necessary procedural guidelines required to submit electronic records.

Representational image. AFP

Representational image. AFP

In 2000, the Parliament had passed the Information Technology Act which amended the law of evidence allowing for electronic records to be made admissible. All that the law requires is that the person relying on the electronic record submit a certificate under Section 65B of the Evidence Act, 1872, to make the record admissible. The certificate basically needs to say that the print out is the exact reproduction of what is in the system.

Speaking of which, the Court said (in para 124 of the main opinion on the case):

"The evidence relating to the electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65B of the Evidence Act shall yield to the same. The certificate issued under Section 65B must conform to the requirements prescribed under Section 65B of the Evidence Act. Thus in view of the law declared by the Apex Court in the case of P.V. Anvar (supra), the CDRs Ext. Ka21 and Ext. Ka22 were not admissible in evidence as the same were not accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to the aforesaid electronic records was inadmissible (sic)."


A simple procedural requirement mandated under law rendered the two pieces of evidence inadmissible. All the inference that the State attempted to draw form those two pieces was also consequently left inadmissible.

Further, the judgment notes that the investigating agency tampered with the evidence during the course of the investigation. The State claimed that a golf club was used to effect the murder, but the golf club was not kept properly during the course of the investigation and the court explicitly records that it was tampered with. The court says (in paragraph 184 of the main opinion):

"It is apparent that the entire theory of crime weapons being golf club and surgical scalpel has been propounded by PW38 Dr. M.S.Dahiya on the basis of absolutely wrong information supplied to him by PW39 AGL Kaul, Investigating Officer of the case, which was not warranted by any material on record is liable to be rejected out rightly. Moreover there is evidence on record showing that the golf club, which was handed over by appellant Dr. Rajesh Talwar was neither properly sealed nor kept in Maalkhana and the same had been tampered with (sic)."

In the next paragraph (185) of the main opinion, the Allahabad High Court adds:

"Record shows that entire set of 12 golf club including golf club no. 5 and golf bag were seized on 03.10.2009 in the clinic of appellant Dr. Rajesh Talwar at Hauz Khas, New Delhi after being voluntarily produced by him vide Ext. Ka61. The golf bag was separately sealed with cloth by PW32 Inspector Richh Pal Singh and Inspector Arvind Jetly who was not examined. The 12 golf clubs were not sealed with separate pieces of clothes individually but were tied together with a piece of cloth wound around the same in the middle and sealed as a result the handles and head portions remained uncovered. The aforesaid fact was admitted by PW32 Richpal Singh and PW39 I.O. AGL Kaul in theirstatements recorded before the trial court. PW32 Richpal Singh deposed on page 235 of the paper book that he had tied 12 golf sticks in the middle together in a bundle with a piece of cloth and on that cloth he had put the seal. PW39 AGL Kaul on page 283 of the paper book deposed that when golf clubs were seized, their heads were not sealed separately. Record further shows that partially sealed set of 12 golf sticks and fully sealed golf bag/cover were sent by PW39 AGL Kaul, Investigating Officer to the CFSL Biology Division, New Delhi for blood and DNA analysis on 30.10.2009. PW6 Dr. B.K.Mahapatra after examining the set of golf sticks and the golf bag returned the entire set of 12 golf clubs including golf club no.5 and golf bag separately along with his report Ext.Ka-37. No DNA or blood was found on either of the articles. He also deposed before the trial court (9th line from the bottom, page 130) that after examining the 12 golf clubs for blood and DNA, he had sealed head portion of the 12 golf clubs with the seal and returned both the parcels i.e. golf clubs and golf bag with the seals of BKM SSO II BIO CFSL, CBI New Delhi (sic)."

The high court offers states in paragraph 189:


"...Thus from the evidence of PW15, PW16, PW39 and PW6, it is fully established that the golf clubs were not properly sealed and the seals which were put on the golf bag and golf sticks on 07.01.2010 by PW6 by Dr. B.K. Mahapatra were tampered with by the investigating authority. At the time when the test identification parade of the golf sticks was conducted the golf sticks were not taken out from any sealed bag or cover but were found lying on the table by PW15. Even if, we ignore the aforesaid glaring irregularities and illegalities committed by the investigating authorities during the investigation, there is absolutely no cogent or reliable evidence on record to persuade us to believe that golf club no. 5 was the crime weapon. No blood or DNA was found on any of the golf clubs. Thus we do not find that the prosecution has been able to prove that golf club and surgical scalpel were the crime weapons which were used by the accused-appellants for committing the double murder... (sic)."

Now, why did the agency leave the heads of the golf clubs uncovered? The DNA evidence (if any) would have been on the head of the golf club, but the agency failed to preserve the evidence resulting in the evidence being tampered with. There is a rule in Indian Law called the best evidence rule. What it means is if one is leading evidence about something, it must be the best available evidence that they can lead. But in this case, by failing to preserve the evidence, the agency failed to ensure that the best evidence was available. This put the entire DNA report in doubt even though they also failed to establish that the golf club was the weapon used to commit the crime.

In a case that concerns only circumstantial evidence, it becomes vital to ensure that no other possible theory is ruled out. One of the things that the prosecution relied upon was Section 106 of the Evidence Act, 1872, which creates a burden on a person, within whose special knowledge a fact is, has to prove it. For example, normally people use the bus to get from point X to Y. But, if someone claims they got on a bus to just enjoy the breeze, then the onus is on them to prove that. The trial court said that since the Talwars claimed that they were sleeping and were in the house at the night of the murders, it was only in their special knowledge that they didn't hear anyone from outside coming in. Since they couldn't explain who else was there, they were guilty.

But the high court has rejected this. And correctly, for two reason: first, Section 106 doesn't relieve the prosecution from its initial burden of proving the case beyond doubt; second, the prosecution failed to prove that they were awake on the night of the murder and this crucial missing link in the chain of events means that it was not for the Talwars to establish or explain the events. Section 106 is applied when someone is found in a situation where they can be called upon to explain, however, since those circumstances warranting an explanation weren't proved by the prosecution, the court cannot convict on the basis of 106 of the Evidence Act, 1872.

The concurring opinion by Justice Arvind Kumar Mishra-I was scathing in its rebuke of the trial judge in the CBI court. He states in his concurring opinion:

"It is apparent that the trial Judge was unmindful of the basic tenets of law and its applicability to the given facts and circumstances of the case and failed to properly appraise facts and evaluate evidence and analyze various circumstances of this case. It can by no means be denied that the trial Judge, perhaps out of extra zeal and enthusiasm and on the basis of self perception adopted partial and parochial approach in giving vent to his own emotional belief and conviction and thus tried to give concrete shape to his own imagination stripped of just evaluation of evidence and facts of this case (sic)."

It's quite clear if not the outcome that the trial was a gross miscarriage of justice. The investigating agency botched up majorly. No one really knew what happened to Aarushi on that night. All they knew was there were circumstances. In fact, if the prosecution has doubts about its own case, prosecuting counsel are under a duty not to prosecute.

The principle is that no innocent person should ever be convicted of a crime. But this is what you get when you launch a media witch hunt. India's television viewing public wanted a trial and they got a trial. Only time will tell how deep are the wounds that were caused to the Talwar's by this trial.


Published Date: Oct 13, 2017 08:53 pm | Updated Date: Oct 13, 2017 08:53 pm


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