Extracts from the 273-page Allahabad High Court Division Bench judgment by Justices B.K.Narayana and A.K. Mishra delivered on October 12 in the Aarushi Talwar-Hemraj double murder case.
> The circumstances of this case do not lead to the irresistible conclusion that the appellants alone are the perpetrators of crime.
> The CBI has miserably failed to lead any evidence which may even remotely suggest that Hemraj was murdered in the bedroom of Aarushi and then his dead body was wrapped in a bed sheet and dragged from Aarushi's bedroom upto the terrace.
> We have no hesitation in holding that the prosecution has failed to prove by any reliable or cogent evidence, the motive suggested by the prosecution for the appellants to commit the double murder i.e. the deceased being caught in the midst of a sexual act on the fateful night by Dr. Rajesh Talwar who suddenly got so gravely provoked that he committed their murder.
> The discovery of the dead body of Hemraj on 17.5.2008 was not on account of any act of omission on the appellants but was a result of negligence and shoddy investigation by Noida police.
> The prosecution theory that the appellants had hidden the dead body of Hemraj on the terrace of their flat is patently absurd and improbable as it contemplates an assumption that the appellants had hidden the dead body on their terrace with the intention of disposing of the same upon getting a suitable opportunity which is based upon an impossible hypothesis that Noida police would not find the dead body on the terrace on 16.5.2008 itself.
> In our opinion the testimony of PW10 Bharti Mandal was thoroughly insufficient for establishing the prosecution case that Talwar's household was locked from inside in the morning hours of 16.5.2008 at around 6:00 A.M. when the first person PW10 Bharti Mandal arrived there, suggesting that there was no possibility of any outsider accessing the apartment in the fateful night and that the double murder therefore, were committed by the inmates of the house and no one else.
> We do not find any reasonable basis for holding that what had actually happened in the appellants' flat in the intervening night of 15th/16th May, 2008 was a fact within the special knowledge of the appellant and since the same was not a fact within their special knowledge Section 106 of the Indian Evidence Act could not be invoked against appellants for the purpose of convicting them...on account of their failure to come up with any explanation for the circumstances under which the double murder were committed in their flat.
> Suspicion, however grave it may be, cannot take the place of proof.
> Prosecution has failed to prove its case against the accused-appellants beyond all reasonable doubts.
> The chain of circumstances is grossly incomplete and broken.
> We find that neither the circumstances from which the conclusion of guilt is sought to be drawn have been fully established nor the same are consistent only with the hypothesis of the guilt of the appellants.
> In our considered opinion, the circumstances are neither conclusive in nature nor they exclude every possible hypothesis except the one of the guilt of the appellant.
> The chain of circumstances stood snapped the moment, the prosecution failed to prove by any cogent and reliable evidence that the appellants' flat was locked from inside when PW10 [maid] Bharti Mandal rang the door bell of their flat in the morning of 16.05.2008 and a strong possibility of outsiders having accessed into the appellants' flat and left after committing the double murder and in the process latched the middle iron mesh door of the appellants' flat from outside and left the outer grill door of their flat open evinced from the evidence adduced by the prosecution itself.
> We do not find any reason to fasten the appellants with the guilt of double murder merely on the proof of the deceased being last seen alive with the appellants in their flat in the night of
> 15.05.2008 specially in view of the alternative hypothesis of the double murder covenanted in the prosecution case itself.
> The conclusion drawn by the learned trial judge to the contrary are per se illegal and vitiated by non consideration of material evidence on record.
> We are also not satisfied that the prosecution could not have due knowledge of what had happened inside the flat on the fateful night in spite of due diligence as there was clinching evidence on record which pointed at the presence of outsiders in the flat of the Talwars in the intervening night of 15th/16th May, 2008
> Possibility of presence of other persons and the outsiders besides Hemraj having accessed to the apartment in the fateful night cannot be ruled out and the clear and credible evidence of alternative hypothesis available on record substantially demolishes the prosecutions theory that the crime was committed by the appellants alone as there was no proof of any outsiders having accessed into the apartment.
> 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. The learned trial Judge has prejudged things in his own fashion, drawn conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning.
> Like a film Director, the trial Judge has tried to thrust coherence amongst facts inalienably scattered here and there but not giving any coherence to the idea as to what in fact happened.
> The learned trial Judge cannot act like a maths teacher who is solving a mathematical question by analogy after taking certain figure for granted.
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