Nupur Talwar Vs. Central Bureau of Investigation & ANR. [June 07, 2012]
2012 Latest Caselaw 317 SC

Nupur Talwar Vs. Central Bureau of Investigation & ANR.

[Review Petition (CRL.) No. 85 of 2012 in Criminal Appeal No. 68 of 2012]

O R D E R

1. The instant controversy emerges out of a double murder, committed on the night intervening 15-16.5.2008. On having found the body of Aarushi Talwar in her bedroom in house no. L-32, Jalvayu Vihar, Sector 25, Noida, her father Dr. Rajesh Talwar got a first information report registered at Police Station Sector 20, Noida, on 16.5.2008. In the first information report Dr. Rajesh Talwar pointed the needle of suspicion at Hemraj, a domestic help in the household of the Talwars. On 17.5.2008 the dead body of Hemraj was recovered from the terrace of the same house, i.e., house no.L-32, Jalvayu Vihar, Sector 25, Noida, where Aarushi's murder had also allegedly been committed.

2. The initial investigation into the double murder was carried out by the U.P. Police. On 29.5.2008 the State of Uttar Pradesh handed over the investigation to the Central Bureau of Investigation (hereinafter referred to as, the CBI), thereupon investigation was conducted by the CBI.

3. During the course of investigation, besides Dr. Rajesh Talwar, the needle of suspicion came to be pointed towards Krishna Thadarai, Rajkumar and Vijay Mandal. Dr. Rajesh Talwar was arrested on 23.5.2008. Originally a three days' remand was granted to interrogate him to the U.P. Police. Dr. Rajesh Talwar remained in police and judicial custody from time to time, wherefrom, he was eventually released on bail on 11.7.2008. The other three individuals, namely, Krishna Thadarai, Rajkumar and Vijay Mandal were also arrested by the police. Since investigation against the aforesaid three could not be completed within the period of 90 days, they were ordered to be released on bail.

4. Having investigated into the matter for a considerable length of time, the CBI submitted a closure report on 29.12.2010. The reasons depicted in the closure report indicated the absence of sufficient evidence to prove the alleged offences against the accused Dr. Rajesh Talwar, beyond reasonable doubt. A summary of the reasons recorded in the said report itself, are being extracted hereunder: "Despite best efforts by investigating team, some of the major shortcomings in the evidence are: -

i. No blood of Hemraj was found on the bed sheet and pillow of Aarushi. There is no evidence to prove that Hemraj was killed in the room of Aarushi.

ii. Dragging mark on steps only indicate that murder has taken place somewhere other than the terrace.

iii. On the clothes of Dr. Rajesh Talwar, only the blood of Aarushi was found but there was no trace of blood of Hemraj.

iv. The clothes that Dr. Nupur Talwar was wearing in the photograph taken by Aarushi in the night of the incident were seized by CBI but no blood was found during forensic examination.

v. Murder weapons were not recovered immediately after the offence. One of the murder weapon i.e. sharp edged instrument could not be recovered till date and expert could not find any blood stain or DNA of victims from golf stick to directly link it to the crime.

vi. There is no evidence to explain the finger prints on the scotch bottle (which were found along with blood stains of both the victims on the bottle). As per police diary, it was taken into possession on 16th morning itself. In spite of best efforts, the fingerprint(s) could not be identified.

vii. The guards of the colony are mobile during night and at the entrance they do not make any entry. Therefore, their statements regarding movement of persons may not be foolproof.

viii. Scientific tests on Dr. Rajesh Talwar and Dr. Nupur Talwar have not conclusively indicated their involvement in the crime.

ix. The exact sequence of events between (in the intervening night of 15-16/05/2008) 00.08 mid night to 6:00 AM in the morning is not clear. No evidence has emerged to show the clear role of Dr. Rajesh Talwar and Dr. Nupur Talwar, individually, in the commission of crime.

x. A board of experts constituted during earlier investigation team has given an opinion that the possibility of the neck being cut by khukri cannot be ruled out, although doctors who have conducted postmortem have said that cut was done by surgically trained person with a small surgical instrument.

xi. There is no evidence to explain the presence of Hemraj's mobile in Punjab after murder. xii. The offence has occurred in an enclosed flat hence no eye witness are available.

xii. The blood soaked clothes of the offenders, clothes used to clean the blood from the flat and stair case, the sheet on which the Hemraj was carried and dragged on the roof, the bed cover which was used to cover the view from the steel iron grill on the roof are not available and hence could not be recovered.

26. The investigation revealed several suspicious actions by the parents post occurrence, but the circumstantial evidence collected during investigation has critical and substantial gaps. There is absence of a clear cut motive and incomplete understanding of the sequence of events and non-recovery of the weapon of offence and their link to either the servants or the parents. In view of the aforesaid shortcomings in the evidence, it is felt that sufficient evidence is not available to prove the offence(s) U/s 302/201 IPC against accused Dr. Rajesh Talwar beyond reasonable doubt. It is, therefore, prayed that the case may be allowed to be closed due to insufficient evidence.

5. "On the receipt of the closure report submitted by the CBI, the Special Judicial Magistrate (CBI), Ghaziabad (hereinafter referred to as" the Magistrate") issued notice to the Dr. Rajesh Talwar in his capacity as the first informant. In response to the notice received by Dr. Rajesh Talwar, he submitted a detailed protest petition dated 25.1.2011, wherein, he objected to the closure report (submitted by the CBI). In the protest petition he prayed for further investigation, to unravel the identity of those responsible for the twin murders of Aarushi Talwar and Hemraj.

6. On 9.2.2011, the Magistrate rejected the closure report submitted bythe CBI. The Magistrate also rejected, the prayer made in the protest petition for further investigation (by Dr. Rajesh Talwar). Instead, having taken cognizance, the Magistrate summoned Dr. Rajesh Talwar (father of Aarushi Talwar) and his wife Dr. Nupur Talwar (mother of Aarushi Talwar)for committing the murders of Aarushi Talwar and Hemraj, as also, for tampering with the evidence.

7. The aforestated summoning order dated 9.2.2011, was assailed by Dr. Nupur Talwar by filing a revision petition before the High Court of judicature at Allahabad (Criminal Revision Petition no. 1127 of 2011). The afore said Criminal Revision Petition came to be dismissed by the High Court vide an order dated 18.3.2011. Dissatisfied with the order passed by the High Court dated 18.3.2011, Dr. Nupur Talwar approached this Court by filing Special Leave Petition (Criminal) no. 2982 of 2011 (renumbered as Criminal Appeal no. 16 of 2011).

The aforesaid Criminal Appeal was dismissed by this Court by an order dated 6.1.2012. Through the instant review petition, the petitioner Dr. Nupur Talwar has expressed the desire, that this Court reviews its order dated 6.1.2012 (dismissing Criminal Appeal no. 16 of 2011). The instant Review Petition was entertained, and notice was issued to the respondents. Lengthy arguments were advanced at the hands of the learned counsel representing the review petitioner. Learned counsel representing the CBI also went to great lengths, to repudiate the same. It emerged from the submissions advanced at the hands of the rival parties, that the focus of attack was against the order passed by the Magistrate dated 9.2.2011.

8. The order passed by the Magistrate on 9.2.2011 was startlingly criticized for being unnecessarily exhaustive. The Magistrate was accused of discussing the evidence in minute detail, and thereby, for having evaluated the merits of the controversy, well before the beginning of the trial. It was sought to be canvassed, that even if the Magistrate having taken cognizance, was satisfied that process deserved to be issued, he ought not have examined the factual intricacies of the controversy.

The Magistrate, it was submitted, has the authority only to commit the controversy in hand, to a Court of Session, as the alleged offences emerging out of the first information report dated 16.5.2008, and the discovery of the murder of Hemraj thereafter, are triable only by a Court of Session. It was submitted, that the controversy had been examined as if, the Magistrate was conducting the trial. It was asserted, that a perusal of the order passed by the Magistrate dated 9.2.2011, gives the impression of the passing of a final order, on the culmination of trial. It was, therefore, submitted, that the order dated 9.2.2011 be set aside, as all the inferences, assumptions and conclusions recorded therein, were totally uncalled for.9. Undoubtedly, merely for taking cognizance and/or for issuing process, reasons may not be recorded. In Kanti Bhadra Shah vs. State of West Bengal, (2000) 1 SCC 722, this Court having examined sections 227, 239 and245 of the Code of Criminal Procedure, concluded, that the provisions of the Code mandate, that at the time of passing an order of discharge infavour of an accused, the provisions referred to above necessitate reasons to be recorded.

It was, however, noticed, that there was no such prescribed mandate to record reasons, at the time of framing charges against an accused. In U.P. Pollution Control Board vs. M/s. Mohan Meakins Ltd. and others, (2000) 3 SCC 745, the issue whether it was necessary for the trial court to record reasons while issuing process came to be examined again, and this Court held as under:- "2. Though the trial court issued process against the accused at the first instance, they desired the trial court to discharge them without even making their first appearance in the court. When the attempt made for that purpose failed they moved for exemption from appearance in the court.

In the meanwhile the Sessions Judge, Lucknow (Shri Prahlad Narain) entertained a revision moved by the accused against the order issuing process to them and, quashed it on the erroneous ground that the magistrate did not pass "a speaking order" for issuing such summons. 3. The Chief Judicial Magistrate, (before whom the complaint was filed) thereafter passed a detailed order on 25.4.1984 and again issued process to the accused. That order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge (Shri Prahlad Narain) again quashed it by order dated 25.6.1984. 5. We may point out at the very outset that the Sessions Judge was in error for quashing the process at the first round merely on the ground that the Chief Judicial Magistrate had not passed a speaking order.

In fact it was contended before the Sessions judge, on behalf of the Board, that there is no legal requirement in Section 204 of the Code of Criminal Procedure (For short the 'Code') to record reasons for issuing process. But the said contention was spurned down in the following words: My attention has been drawn to Section 204 of the Code of Criminal Procedure and it has been argued that no reasons for summoning an accused person need be given. I feel that under Section 204 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and, if an opinion had to be formed judicially, the only mode of doing so is to find out express reasons for coming to the conclusions.

In the impugned order, the learned Magistrate has neither specified any reasons nor has he even formed an opinion much less about there being sufficient ground for not proceeding with the case. 6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722. The following passage will be apposite in this context: "12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work.

The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial."

12. In the above context what is to be looked at during the stage of issuing process is whether there are allegations in the complaint by which the Managers or Directors of the company can also be proceeded against, when the company is alleged to be guilty of the offence. Paragraph 12 of the complaint read thus: "That the accused persons from 2 to 11 are Directors/Managers/Partners of M/s. Mohan Meakins Distillery, Daliganj, Lucknow, as mentioned in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform the standard laid down by the Board.

Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which not only the company but its Directors, Managers, Secretary and all other responsible officers of the accused company, responsible for the conduct of its business are also liable in accordance with the provision of the Section 47 of the Act." The appellant has further stated in paragraph 23 of the complaint that "the Chairman, Managing Directors and Directors of the company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law." (emphasis is mine)Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again, in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal & Ors., (2003) 4SCC 139, wherein this Court concluded as below:-

9. "In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. & Ors., (2000) 3 SCC 745, and after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722, it was held as follows:

"The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order." (emphasis is mine)Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another(Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was again considered. The observations of this Court recorded therein, are being placed below:-

"9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court.

10. 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 a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

11. Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith." (emphasis is mine)It is therefore apparent, that an order issuing process, cannot be vitiated merely because of absence of reasons.10. The matter can be examined from another perspective.

The Code of Criminal Procedure expressly delineates irregularities in procedure which would vitiate proceedings. Section 461 thereof, lists irregularities which would lead to annulment of proceedings. Section 461 aforesaid is being extracted hereunder:- "461. Irregularities which vitiate proceedings- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-

(a) attaches and sells property under section 83;

(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;

(c) demands security to keep the peace;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace; (g) makes an order for maintenance;

(h) makes an order under section 133 as to a local nuisance;

(i) prohibits, under section 143, the repetition or continuance of a public nuisance;

(j) makes an order under Part C or Part D of Chapter X;

(k) takes cognizance of an offence under clause (c) of sub- section (1) of section 190;

(l) tries an offender;

(m) tries an offender summarily;

(n) passes a sentence, under section 325, on proceedings recorded by another Magistrate;

(o) decides an appeal;

(p) calls, under section 397, for proceedings; or

(q) revises an order passed under section 446, his proceedings shall be void."In the list of irregularities indicated in Section 461 of the Code of Criminal Procedure , orders passed under Section 204 thereof, do not find a mention.

In a situation, as the one in hand, Section 465(1) of the Code of Criminal Procedure, protects orders from errors omissions or irregularities, unless "a failure of justice" has been occasioned there by. Most certainly, an order delineating reasons cannot be faulted on the ground that it has occasioned failure of justice. Therefore, even without examining the matter any further, it would have been sufficient to conclude the issue. The present situation, however, requires a little further elaboration. Keeping in mind the peculiarity of the present matter and the special circumstances arising in this case, some observations need to be recorded. Accordingly, to determine whether reasons ought to have been recorded by the Magistrate, in this case, is being dealt with in the succeeding paragraphs.11. On the basis of the foundational facts already recorded above, I shall examine the merits of the first submission advanced before the Court. First and foremost it needs to be remembered, that the CBI had submitted a closure report on 29.12.2010.

The Magistrate could have accepted the report and dropped proceedings. The Magistrate, however, chose not to accept the CBI's prayer for closure. Alternatively, the Magistrate could have disagreed with the report, by taking a view (as she has done in the present case) that there were sufficient grounds for proceeding further, and thereby, having taken cognizance, could have issued process (as has been done vide order dated 9.2.2011). A third alternative was also available to the Magistrate. The Magistrate could have directed the police to carry out further investigation. As noticed hereinabove, the Magistrate in spite of the submission of a closure report, indicating the absence of sufficient evidence, having taken cognizance, chose to issue process, and thereby, declined the third alternative as well.

Since the CBI wanted the matter to be closed, it was appropriate though not imperative for the Magistrate to record reasons, for differing with the prayer made in the closure report. After all, the CBI would have surely wished to know, how it went wrong. But then, there are two other important factors in this case, which further necessitated the recording of reasons. Firstly, the complainant himself (Dr. Rajesh Talwar, who authored the first information report dated 16.5.2008) was being summoned as an accused. Such an action suggests, that the complainant was really the accused. The action taken by the Magistrate, actually reversed the position of the adversaries.

The party which was originally pointing the finger, is now sought to be pointed at. Certainly, the complainant would want to know why. Secondly, the complainant (Dr. Rajesh Talwar) had filed a protest petition dated25.1.2011, praying for a direction to the police to carry out further investigation. This implies that the CBI had not been able to procure sufficient evidence on the basis whereof, guilt of the perpetrators of the twin murders of Aarushi Talwar and Hemraj could be established. Whilst, the rival parties were pleading insufficient evidence, the Magistrate's order dated 9.2.2011 issuing process, implies the availability of sufficient material to proceed against the accused.

This second aspect in the present controversy, also needed to be explained, lest the Magistrate who had chosen to issue process against all odds, would have been blamed of having taken the decision whimsically and/or arbitrarily. Before rejecting the prayer made in the closure report, as also, the prayer made in the protest petition, it was appropriate though not imperative for the Magistrate to narrate, why she had taken a decision different from the one sought. Besides the aforesaid, there is yet another far more significant reason for recording reasons in the present matter. The incident involving the twin murders of Aarushi Talwar and Hemraj are triable by a Court of Session. The authority of the Magistrate was limited to taking cognizance and issuing process.

A Magistrate in such a situation, on being satisfied, has the authority to merely commit the case for trial to a Court of Session, under Section 209 of the Code of Criminal Procedure . Section 209is being extracted hereunder: "Commitment of case to Court of Session when offence is triable exclusively by it - When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall -

(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."In this background, it was essential for the Magistrate to highlight, for the perusal of the Court of Session, reasons which had weighed with her, in not accepting the closure report submitted by the CBI, as also, for not acceding to the prayer made in the protest petition, for further investigation.

It was also necessary to narrate what prompted the Magistrate to summon the complainant as an accused. For, it is not necessary that the Court of Session would have viewed the matter from the same perspective as the Magistrate. Obviously, the Court of Session would in the first instance, discharge the responsibility of determining whether charges have to be framed or not. Merely because reasons have been recorded, the Court of Session will have an opportunity to view the matter, in the manner of understanding of the Magistrate. If reasons had not been recorded, the Court of Session may have overlooked, what had been evaluated, ascertained and comprehended by the Magistrate.

Of course, a Court of Session, on being seized of a matter after committal, being the competent court, as also, a court superior to the Magistrate, has to examine all issues independently, within the four corners of law, without being influenced by the reasons recorded in the order issuing process. In the circumstances mentioned hereinabove, it was befitting for the Magistrate to pass a well reasoned order, explaining why she was taking a view different from the one prayed for in the closure report. It is also expedient for the Magistrate to record reasons why the request made by the complainant (Dr. Rajesh Talwar) praying for further investigation, was being declined. Even the fact, that the complainant (Dr. Rajesh Talwar)was being summoned as an accused, necessitated recording of reasons.

An order passed in the circumstances noted hereinabove, without outlining the basis there for, would have been injudicious. Certainly the Magistrate's painstaking effort needs a special commendation. At this juncture, it would be apposite to notice the observations recorded by this Court in Rupan Deol Bajaj and another vs. KPS Gill and another, (1995) 6 SCC 194,wherein this Court remarked as under:- "28. Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case - as the present one - the complainant, as the person aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was made out, but the Court overrules such objections, it is just and desirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity and minimize chances of arbitrariness.

That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant, it has got to be set aside and we do hereby set it aside. Consequent thereupon, two courses are left open to us; to direct the learned Magistrate to hear the parties afresh on the question of acceptance of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance under Section 190(1)(b) Cr.P.C. Keeping in view the fact that the case is pending for the last seven years only on the threshold question we do not wish to lake the former course as that would only delay the matter further. Instead thereof we have carefully looked into the police report and its accompaniments keeping in view the following observations of this Court in H.S. Bains. v. State, (1980) 4 SCC 631, with which we respectfully agree:

"The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclosed an offence under Section 324, Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 307.

Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report."

29. Our such exercise persuades us to hold that the opinion of' the Investigating Officer that the allegations contained in the F.I.R. were not substantiated by the statements of witnesses recorded during investigation is not a proper one for we find that there are sufficient materials for taking cognizance of the offences under Sections 354 and 509 I.P.C. We, however, refrain from detailing or discussing those statements and the nature and extent of their corroboration of the F.I.R. lest they create any unconscious impression upon the Trial Court, which has to ultimately decide upon their truthfulness, falsity or reliability, after those statements are translated into evidence during trial. For the selfsame reasons we do not wish to refer to the arguments canvassed by Mr. Sanghi, in support of the opinion expressed in the police (final) report and our reasons in disagreement thereto." (emphasis is mine)Therefore, even though the Magistrate was not obliged to record reasons, having passed a speaking order while issuing process, the Magistrate adopted the more reasonable course, though the same was more ponderous, cumbersome and time consuming.

12. Therefore, in the present set of circumstances, the Magistrate having examined the statements recorded during the course of investigation under Sections 161 and 164 of the Code of Criminal Procedure , as also, the documents and other materials collected during the process of investigation, was fully justified in recording the basis on which, having taken cognizance, it was decided to issue process. I, therefore, hereby find absolutely no merit in the criticism of the Magistrate's order, inbeing lengthy and detailed. In passing the order dated 9.2.2011 the Magistrate merely highlighted the circumstances emerging out of the investigation carried out in the matter, which constituted the basis of her decision to issue process. The Magistrate's order being speaking, cannot be stated to have occasioned failure of justice. The order of the Magistrate, therefore, cannot be faulted on the ground that it was a reasoned order.

13. During the course of hearing, the primary ground for assailing the order of the Magistrate dated 9.2.2011 was focused on projecting, that the Magistrate had not only drawn incorrect conclusions, but had also overlooked certain vital factual aspects of the matter. Before examining the details on the basis whereof the order passed by the Magistrate (dated9.2.2011) can be assailed, it will be necessary to first summarize the basis whereon the Magistrate perceived, that there was sufficient material for proceeding against the accused in the present controversy.

Different aspects taken into consideration by the Magistrate are accordingly being summarized hereunder: Firstly, based on the statements of Umesh Sharma and Bharti recorded during the course of investigation, coupled with the factual position depicted in the first information report, it was sought to be inferred, that on the night of the incident Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi Talwarand Hemraj only were present at the place of the occurrence, namely, house no. L-32 Jalvayu Vihar, Sector 25, Noida. Being last seen together, the needle of suspicion would point at the two surviving persons, specially if it could be established, that the premises had not been broken into. Secondly, on the basis of the statement of Mahesh Kumar Mishra, recorded during the course of investigation, who alleged that he was told by Dr. Rajesh Talwar, that he had seen his daughter Aarushi Talwar on the fateful night upto 11:30 p.m., where after, he had locked the room of his daughter from outside, and had kept the key near his bed head.

Coupled with the fact, that the lock on Aarushi Talwar's room was of a kind which could be opened from inside without a key but, needed a key to be opened from outside. And further, coupled with the fact, that the outer exit/entry door(s) to the flat of the Talwars, had not been broken into. It was assumed, that there was no outside forced entry, either into the bedroom of Aarushi Talwar or the flat of the Talwars, on the night of the twin murders of Aarushi Talwar and Hemraj. Thirdly, the Magistrate noticed from the investigation carried out, that the dead body of Hemraj was covered with a panel of a cooler, and on the grill a bed sheet had been placed. Likewise, from the fact that Aarushi Talwar's body was found murdered on her own bed, yet her toys were found arranged "as such" behind the bed and also, there were no wrinkles on the bed sheet.

On the pillow kept behind Aarushi Talwar, there ought to have been blood stains when she was attacked (as she was hit on her head, and her neck had been slit), but the same were absent. These facts were highlighted by the Magistrate to demonstrate the dressing up of the place(s) of occurrence, to further support the assumption of the involvement of an insider, as against, an outsider. Fourthly, based on the statements of Virendera Singh, Sanjay Singh, Raj Kumar, Chandra Bhushan, Devender Singh, Ram Vishal and Punish Rai Tandon, recorded during the course of investigation, it was sought to be assumed, that no outsider was seen either entering or leaving house no. L-32,Jalvayu Vihar, Sector 25, Noida, on the night intervening 15-16.5.2008.

This also, according to the Magistrate, affirmed the main deduction, that no outsider was involved. Fifthly, based on the statements of Dr. Anita Durrani, Punish Rai Tandonand K.N. Johri, recorded during the course of investigation, it was sought to be inferred, that the other servants connected with the household of the Talwar family, namely, Raj Kumar, Vijay Mandal and Krishna Thadarai, were present elsewhere at the time of the commission of the twin murders, and also that, there was no material depicting their prima facie involvement or motive in the crime, specially because, no "precious things like jewellery or any other thing from the house of Talwars couple" was found missing and further that " no rape on Aarushi Talwar had been confirmed".

Accordingly, it was sought to be reasoned, that no outsider had entered the premises. Sixthly, from the statements of Deepak Kanda, Bhupender Singh and Rajesh Kumar, recorded during the course of investigation, it was felt that on the night when the murder was committed, i.e. the night intervening 15-16.5.2008 the internet connection was regularly used by Dr. Rajesh Talwar from 11:00 p.m. to 12:08 a.m. In fact, both Dr. Rajesh Talwar, as also, Dr. Nupur Talwar themselves confirmed to the witnesses whose statements were recorded during the course of investigation, that the internet router was switched on at 11:00 p.m. and Dr. Rajesh Talwar had thereafter used the internet facility. Based on this factual position it was gathered, that both Dr. Rajesh Talwar and Dr. Nupur Talwar were awake and active at oraround the time of occurrence (determined in the post-mortem report).Seventhly, from the statements of Sunil Kumar Dorhe, Naresh Raj, Ajay Kumarand Dinesh Kumar recorded during the course of investigation, it was sought to be inferred, that the private parts of the deceased Aarushi Talwar were tampered with, inasmuch as, the white discharge was found only in the vaginal area of Aarushi Talwar indicating, that her private parts were cleaned after her death.

The said white discharge was found not to be originating from the body of the deceased. The aforesaid inference was sought to be further supported by assertions, that the vaginal opening of Aarushi Talwar, at the time of the post mortem examination, was unusuallywide. Accordingly, a deduction was made, that evidence had been tampered with, by those inside the flat, after the occurrence. Eighthly, it was also sought to be assumed, that the death of Aarushi Talwar and Hemraj was occasioned as a consequence of injuries caused by an iron 5 golf club (on the head of both the deceased), as also, "injury on the neck of both the deceased caused by a surgically trained person".

Since the golf club in question was not immediately produced, and since, the accused themselves were surgically trained, it was gathered that Dr. Rajesh Talwar and Dr. Nupur Talwar were themselves responsible for the twin murders. Ninthly, in paragraph 15 of the Magistrate's order dated 9.2.2011 it is noticed, that a request was made to Dr. Sunil Kumar Dhore for not mentioning the word "rape" in the post mortem proceedings. Investigation also established, that Dr. Dinesh Talwar (brother of Dr. Rajesh Talwar),had spoken to Dr. Sunil Kumar Dhore and exerted influence over Dr. Sunil Kumar Dhore through Dr. Dogra who allegedly instructed Dr. Sunil Kumar Dhore in connection with the post mortem examination. On the basis of the aforesaid material highlighted in the order dated 9.2.2011, the Magistrate further expressed the view, that influence was allegedly being exerted on behalf of the accused, on the doctor who was conducting the post mortem examination.

Tenthly, based on the statements of Umesh Sharma, Kalpana Mondal, Vimla Sarkar and Punish Tandon, recorded during the course of investigation, itwas sought to be concluded, that the door leading to the terrace of houseno.L-32, Jalvayu Vihar, Sector 25, Noida, had always remained open prior to the date of occurrence. It was gathered there from, that the lock on the door leading to the terrace of the house in question on the date of occurrence, was affixed so that the investigating agency would not immediately recover the body of Hemraj, so as to hamper the investigation.

These facts allegedly spell out the negative role played by Dr. Rajesh Talwar in causing hindrances in the process of investigation. Eleventhly, based on the statements of Rohit Kocchar and Dr. Rajeev Varshney, recorded under Section 164 of the Code of Criminal Procedure , disclosing, that they had informed Dr. Rajesh Talwar, that the terrace door, the lock on the terrace door, as also, the upper steps of the stair case had blood stains. They also asserted, that Dr. Rajesh Talwar "climbed up some steps but immediately came down and did not say anything about keys and went inside the house ".

The aforesaid narration, coupled with the fact, that Dr. Prafull Durrani one of the friends of Dr. Rajesh Talwar stated, that he was "told by Dr. Rajesh Talwar, that the key of the terrace used to be with Hemraj. He did not know about the key" was the basis for assuming, that Dr. Rajesh Talwar was preventing the investigating agency from tracing the body of Hemraj, which was eventually found from the terrace, after breaking open the lock on the terrace door. Twelfthly, Umesh Sharma the driver of the Talwars, stated during the course of investigation, that he had placed two golf clubs, i.e. irons 4 and 5 inthe room of Hemraj, when the Santro car owned by the Talwars, was given for servicing.

The iron 5 club, which is alleged to be the weapon of crime (which resulted in a V shaped injury on the heads of both Aarushi Talwarand Hemraj), remained untraced during the course of active investigation. The same was recovered from the loft of the house of Dr. Rajesh Talwar, and handed over to the investigating agency, more than a year after the occurrence on 30.10.2009. The Magistrate noticed, that the loft from where it was allegedly found, had been checked several times by the CBI. To which the explanation of Dr. Rajesh Talwar allegedly was, that one golf club might have dropped from the golf kit, and might have been left there. This factual aspect lead to the inference, that the weapon used in the crime, was deliberately not handed over to the investigating agency, after the occurrence. Thirteenthly, another factual aspect emerging during the course of investigation was, that the body of Hemraj was recovered on the day following the murder of Aarushi Talwar, i.e., on 17.5.2008. When Dr.Rajesh Talwar was shown the body, he could not identify it as that of Hemraj.

The dead body was identified by one of Hemraj's friend. Dr. Nupur Talwar confirmed, that the body recovered from the terrace was of Hemraj, on the basis of the inscription on the shirt worn by him. From the fact that, neither Dr. Rajesh Talwar nor Dr. Nupur Talwar could identify the body of Hemraj, from its appearance, it was sought to be figured, that they were not cooperating with the investigation. Besides the aforesaid conspicuous facts depicted in the order passed by the Magistrate, a large number of other similarly significant facts, have also been recorded, in the order dated 9.2.2011. The same are not being mentioned herein, as the expressive and weighty ones, essential to arrive at a determination on the issue in hand, have already been summarized above. Based inter alia on the inferences and the assumptions noticed above, the Magistrate issued process by summoning Dr. Rajesh Talwar and Dr. Nupur Talwar.

14. The facts noticed in the foregoing paragraph and the impressions drawn thereupon by the Magistrate, are based on statements recorded under Section 161 of Code of Criminal Procedure (and in a few cases, under Section 164 of the Code of Criminal Procedure ), as also, on documents and other materials collected during the course of investigation. Neither the aforesaid statements, nor the documents and materials taken into consideration, can at the present juncture be treated as reliable evidence which can be taken into consideration, for finally adjudicating upon the guilt or innocence of the accused.

It is only when the witnesses appear in court, and make their statements on oath, and their statements have been tested by way of cross examination; and only after the documents and other materials relied upon are proved in accordance with law, the same would constitute evidence which can be relied upon to determine the controversy. It is on the basis of such acceptable evidence, that final conclusions can be drawn to implicate the accused. That stage has not yet arisen.

At the present juncture, the Magistrate was required to examine the materials collected by the investigating agencies, and thereupon, to determine whether the proceedings should be dropped (as was suggested by the investigating agency, through its closure report dated 29.12.2010), or whether, a direction should be issued for further investigation (as was suggested in the protest petition filed by Dr. Rajesh Talwar), or whether, there was sufficient ground for proceeding further, by issuing process (as has been done in the present case).

Having examined the material on the record, the Magistrate having taken cognizance issued process on 9.2.2011,and while doing so, recorded the following observations in the penultimate paragraphs of summoning order dated 9.2.2011: "From the analysis of evidence of all above mentioned witnesses prima facie it appears that after investigation, on the basis of evidence available in the case diary when this incident occurred at that time four members were present in the house - Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi and servant Hem Raj; Aarushi and Hem Raj the two out four were found dead. In the case diary there is no such evidence from which it may appear that some person had made forcible entry and there is to evidence regarding involvement of the servants.

In the night of the incident internet was switched on and off in the house in regard to which this evidence is available in the case diary that it was switched on or off by some person. Private parts of deceased Aarushi were cleaned and deceased Hem Raj was dragged in injured condition from the flat of Dr. Rajesh Talwar up to the terrace and the terrace was locked. Prior to 15.5.2008 terrace was not locked. According to documents available on the case diary blood stains were wiped off on the staircase, both the deceased were slit with the help of a surgical instrument by surgically trained persons and shape of injury on the head and forehead was V-shaped and according to the evidence available in the case diary that appeared to have been caused with a gold stick.

A person coming from outside, during the presence of Talwar couple in the house could have neither used the internet nor could have taken the dead body of deceased Hem Raj to the terrace and then locked when the Talwar couple was present in the house. On the basis of evidence available in the case diary footprints stained with blood were found in the room of Aarushi but outside that room bloodstained footprints were not found. If the assailant would go out after committing murder then certainly his footprints would not be confined up to the room of Aarushi and for an outsider it is not possible that when Talwar couple were present in the house he would use liquor or would try to take dead body on the terrace.

Accused after committing the offence would like to run away immediately so that no one could catch him. On the basis of evidence of all the above witnesses and circumstantial evidence available in case diary during investigation it was expected from the investigating officer to submit charge-sheet against Dr. Rajesh Talwar and Dr. Nupur Talwar. In such type of cases when offence is committed inside a house, there direct evidence cannot be expected. Here it is pertinent to mention that CBI is the highest investigating agency of the country in which the public of the country has full confidence.

Whenever in a case if any one of the investigating agencies of the country remained unsuccessful then that case is referred to CBI for investigation. In such circumstances it is expected of CBI that applying the highest standards, after investigation it should submit such a report before the court which is just and reasonable on the basis of evidence collected in investigation, but it was not done so by the CBI which is highly disappointing. If I draw a conclusion from the circumstances of case diary, then I find that in view of the facts, the conclusion of the investigating officer that on account of lack of evidence, case may be closed; does not appear to be just and proper.

When offence was committed in side a house, on the basis of evidence received from case diary, a link is made from these circumstances, and these links are indicating prima facie the accused Dr. Rajesh Talwar and Dr. Nupur Talwar to be guilty. The evidence of witness Shoharat that Dr. Rajesh Talwar asked him to paint the wooden portion of a wall between the rooms of Aarushi and Dr. Rajesh Talwar, indicates towards the conclusion that he wants to temper with the evidence. From the evidence 3 so many in the case diary, prima facie evidence is found in this regard.

Therefore in the light of above evidences conclusion of investigating officer given in the final report deserve to be rejected and there is sufficient basis for taking prima facie cognizance against Dr. Rajesh Talwar and Dr. Nupur Talwar for committing murder of deceased Aarushi and Hem Raj and for tempering with the proof. At this stage, the principle of law laid down by Hon'ble Supreme Court in the case of Jugdish Ram vs. State of Rajasthan reported in 2004 AIR 1734 is very important wherein the Hon'ble Supreme Court held that investigation is the job of Police and taking of cognizance is within the jurisdiction of the Magistrate.

If on the record, this much of evidence is available that prima facie cognizance can be taken then the Magistrate should take cognizance, Magistrate should be convinced that there is enough basis for further proceedings rather for sufficient basis for proving the guilt.

15. " In order to canvass the primary ground raised for assailing the order of the Magistrate dated 9.2.2011, it was submitted, that the Magistrate would have arrived at a conclusion, different from the one drawn in the order dated 9.2.2011, if the matter had been examined in its correct perspective, by taking a holistic view of the statements and materials recorded during investigation. It is sought to be canvassed, that a perusal of the impugned order reveals, that too much emphasis was placed on certain incorrect facts, and further, certain vital and relevant facts and materials were overlooked. In sum and substance it was submitted, that if the factual infirmities were corrected, and the facts overlooked were given due weight age, the conclusions drawn by the Magistrate in the order dated9.2.2011, would be liable to be reversed.

To appreciate the instant contention advanced at the hands of the learned counsel for the petitioners, I am summarizing hereunder, the factual aspects highlighted by the learned counsel for the petitioner during the course of hearing:-Firstly, it was submitted, that the inference drawn by the Magistrate to the effect, that there was no outsider other than Dr. Rajesh Talwar, Dr. Nupur Talwar, Aarushi Talwar and Hemraj in house no.L-32, Jalvayu Vihar, Sector 25, Noida, on the fateful day, is erroneous. It was submitted, that the said inference was drawn under the belief, that there was no forceful entry into the premises in question. To canvass the point, learned counsel drew the attention of this Court to the site plan of the flat under reference, which had been prepared by the U.P. Police (during the course of investigation by the U.P. Police), and compared the same with, the site plan prepared by the CBI (after the CBI took over investigation).

It was pointed out, that a reference to the correct site plan would reveal, that there could have been free access, to and from the residence of Talwars, through Hemraj's room. Secondly, it was pointed out, after extensively relying upon the statement of Bharti, that the grill and mash door latched from the outside clearly evidenced, that after committing the crime the culprits had bolted the premises from outside. The absurdity in the inference drawn by the Magistrate, it was submitted, was obvious from the fact, that the actual perpetrator of the murders, while escaping from the scene of occurrence, had bolted the Talwars from outside. It was also pointed out, that the iron mashing/gauze on the door which was bolted from outside, would make it impossible for an insider, to bolt the door from outside.

Thirdly, according to the learned counsel, the impression recorded in the investigation carried out by the CBI reveals, that the stairway leading to the terrace was from inside the flat (of the Talwars), was erroneous. This inference was sought to be shown to have been incorrectly recorded, as the stairs leading to the terrace were from outside the flat, i.e., from the common area of the apartment complex beyond the outermost grill-door leading into the house no.L-32, Jalvayu Vihar, Sector 25, Noida.

It was therefore submitted, that under no circumstances Dr. Rajesh Talwar or Dr.Nupur Talwar could be linked to the murder of Hemraj, since the body of Hemraj was found at a place, which had no internal connectivity from with in the flat of the Talwars. Fourthly, as noticed above, since the flat of the Talwars was bolted from the outside, neither Dr. Rajesh Talwar nor Dr. Nupur Talwar could have taken the body of Hemraj to the terrace, even if the inference drawn by the CBI, that the murder of Hemraj was committed at a place different from the place from where his body was found, is to be accepted as correct. It is sought to be suggested, that the accused cannot, in any case, be associated with the murder of Hemraj. And since, both murders were presumably the handiwork of the same perpetrator(s), the accused could not be associated with the murder of Aarushi Talwar as well. Fifthly, substantial material was placed before the Court to suggest that the purple colored pillow cover belonging to Krishna Thadarai, was found smeared with the blood of Hemraj.

In order to substantiate the instant contention reference was made to the seizure memo pertaining to Krishna Thadarai's pillow cover, and thereupon, the report of the CFSL dated23.6.2008, as also, the report of the CFSL (Bio Division) dated 30.6.2008depicting, that the blood found on the pillow cover was of human origin. It was the vehement contention of the learned counsel for the petitioner, that Krishna Thadarai could not have been given a clean chit, when the blood of Hemraj was found on his pillow cover. It is necessary to record, that as imilar submission made before the High Court was turned down by the High Court, on the basis of a letter dated 24.3.2011 (even though the same was not a part of the charge papers).

It was submitted, that the aforesaid letter could not have been taken into consideration while examining the veracity of the inferences drawn by the Magistrate. In order to support the instant contention, it was also vehemently submitted, that during the course of investigation, neither the U.P. Police nor the CBI, found blood of Hemraj on the clothes of either Dr. Rajesh Talwar or Dr. Nupur Talwar. The presence of the blood of Hemraj on the pillow cover of Krishna Thadarai and the absence of the blood of Hemraj on the apparel of Dr. Rajesh Talwar and Dr. Nupur Talwar, according to learned counsel for the petitioners, not only exculpates the accused identified in the Magistrate's order dated9.2.2011, but also reveals, that the investigation made by the U.P. Police/CBI besides being slipshod and sloppy, can also be stated to have been carried on without due application of mind.

Sixthly, in continuation of the preceding issue canvassed on behalf of the petitioners, it was submitted, that the finding recorded by the CBI in its closure report, that DNA of none of the servants was found on any of the exhibits collected from the scene of crime, was wholly fallacious. The Magistrate having assumed the aforesaid factually incorrect position, exculpated all the servants of blame, in respect of the twin murders of Aarushi Talwar and Hemraj.

It was submitted, that as a matter of fact, scientific tests shorn of human considerations, clearly indicate the involvement of Krishna Thadarai with the crime under reference. In this behalf the Court's attention was also drawn to the narco analysis, brain mapping and polygraph tests conducted on Krishna Thadarai. Seventhly, the investigating agency, it was contended, was guilty of not taking the investigative process to its logical conclusion. In this behalf it was submitted, that finger prints were found on a bottle of Ballantine Scotch Whiskey, found on the dining table, in the Talwar flat.

The accused, according to learned counsel, had requested the investigating agency to identify the fingerprints through touch DNA test. The accused had also offered to bear the expenses for the same. According to the learned counsel, the identification of the fingerprints on the bottle, would have revealed the identity of the perpetrator(s) to the murders of Aarushi Talwar and Hemraj. It is therefore sought to be canvassed, that the petitioner Dr. Nupur Talwar and her husband Dr. Rajesh Talwar, had unfairly been accused of the crime under reference, even though there was material available to determine the exact identity of the culprit(s) in the matter.

Eighthly, it was submitted, that footprints were found in the bedroom of Aarushi Talwar, i.e., from the room where her dead body was recovered. These footprints according to learned counsel, did not match the footwear impressions of shoes and slippers of Dr. Rajesh Talwar and Dr. Nupur Talwar. This according to the learned counsel for the petitioners also indicates, that neither Dr. Rajesh Talwar nor Dr. Nupur Talwar were involved in the murder of their daughter Aarushi Talwar. The murderer, according to learned counsel, was an outsider.

And it was the responsibility of the CBI to determine the identity of such person(s) whose footwear matched the footprints found in the room of the Aarushi Talwar. Lack of focused investigation in the instant matter, according to the learned counsel for the petitioners, had resulted in a gross error at the hands of the Magistrate, who has unfairly summoned Dr. Rajesh Talwar and Dr. Nupur Talwar as the accused, rather than the actual culprit(s).Ninthly, learned counsel for the petitioner also referred to the postmortem report of Aarushi Talwar dated 16.5.2008, and in conjunction therewith the statement of Dr. Sunil Kumar Dhore dated 18.7.2008, the report of the High Level Eight Member Expert Body dated 9.9.2008 (of which Dr. Sunil Kumar Dhore was a member), and the further statements of Dr. Sunil Kumar Dhore dated 3.10.2008, 30.9.2009 and 28.5.2010. Based thereon, learned counsel submitted, that in the post mortem report conducted by Dr. Sunil Kumar Dhore, he had expressly recorded NAD (No Abnormality Detected)against the column at serial no.7, pertaining to the private parts of Aarushi Talwar.

It was submitted, that the aforesaid position came to be substantially altered by the subsequent oral statements made by Dr. Sunil Kumar Dhore. It was submitted, that the different factual position narrated by Dr. Sunil Kumar Dhore, subsequent to the submission of the postmortem report, cannot be taken into consideration. Viewed from the instant perspective, it was also submitted, that the investigating agencies utterly failed in carrying out a disciplined and proper investigation. It was also asserted, that Dr. Sunil Kumar Dhore had been persuaded to turn hostile to the contents of his own document, i.e., the post mortem report dated16.5.2008. Even though originally Dr. Sunil Kumar Dhore found, that there was no abnormality detected in the private parts of Aarushi Talwar, afterthe lapse of two years his supplementary statements depict a number of abnormalities.

It was submitted, that the Magistrate having referred to the last of such statements dated 25.5.2010, inferred there from, that the private parts of Aarushi Talwar had been cleaned after her murder. It was submitted, that the absurdity and improbability of the assumption could be established from the fact, that the white discharge found from the vagina of Aarushi Talwar, was sent for pathological examination, which showed that no spermatozoa was detected therein. The instant inference of the Magistrate, according to learned counsel, had resulted in grave miscarriage of justice. Tenthly, it was contended, that the dimension of the injury on the heads of Aarushi Talwar and Hemraj, was stated to match with the dimension of a 5iron golf club. It was pointed out, that the 5 iron golf club recovered from the premises of the Talwars, did not have any traces of blood.

It was submitted, that the said golf club as a possible weapon of offence, was introduced by the second team of the CBI in September/October 2009. The Magistrate, according to learned counsel, had erroneously recorded in the impugned order dated 9.2.2011, that experts had opined that the injuries in question (on the heads of Aarushi Talwar and Hemraj) were possible with the golf club in question. It was sought to be highlighted, that no expert had given any such opinion during the entire investigative process, and as such, the finding recorded by the Magistrate was contrary to the record.

Eleventhly, it was asserted, that the Magistrate ignored to take into consideration, the fact that the clothes of Dr. Rajesh Talwar were found only with the blood of Aarushi Talwar. But it was noticed, that there was no blood of Aarushi Talwar on the clothes of Dr. Nupur Talwar. This fact is also erroneous because the blood of Aarushi Talwar was actually found on the clothes of Dr. Nupur Talwar also. According to learned counsel, the discovery of blood of Aarushi Talwar on the clothes of her parents was natural. What is important, according to learned counsel, is the absence of blood of Hemraj, on the clothes of the accused. It was submitted, that the prosecution had never denied, that the blood of Hemraj was not found on the clothes of either Dr. Rajesh Talwar or Dr. Nupur Talwar. This factual position, for the same reasons as have been indicated at serial no. fourthly above establishes the innocence of the accused in the matter.

16. Just as in the case of the reasons depicted in the order of the Magistrate (based on the statements recorded during the course of investigation and the documents and other materials placed before her), the factual submissions advanced at the hands of the learned counsel for the petitioners (noticed in the foregoing paragraph), cannot be placed on the pedestal of reliable evidence. It is only when statements are recorded in defence, which are tested by way of cross examination, and only after documents and material relied upon (in defence), are proved in accordance with the law, the same would constitute evidence, which can constitute a basis, for determining the factual position in the controversy.

It is only on the basis of such acceptable evidence, that final conclusions can be drawn. That stage has not arisen. Even though the demeanor of learned counsel representing the petitioners was emphatic, that no other inference beside the one s