The events that took place at the Talwar household on 15-16 May, 2008 will probably remain a mystery forever. Four persons entered the house on 15th night, and presumably went to sleep in the house; in the morning 14 year old Aarushi Talwar was found murdered in her room. The parents said they were asleep and initially suspected the servant Hemraj, who was later also found murdered on the terrace that same day. It was the classic whodunit. The police, many believed, botched their investigation which led to several delays. Ultimately, though, we had a decision: the parents were found guilty of having murdered their only daughter. The court believed the prosecution case, that Mr Talwar found his daughter in a "compromising position" with the servant and killed them both and was aided by his wife.
There are, sadly, many holes left in the lengthy decision of the Sessions Judge which will hopefully receive greater consideration at the appeal. Here, I am only concerned with the prosecution (and Court) placing great reliance upon the "last seen theory". The idea is simple: the victims were last seen alive by the accused person within closed bounds, so what happened to them is something they must explain. It doesn't require much thought to argue that such a theory can put the accused in a fix. Will the Court believe me if I say I don't know what happened?
The Last Seen Theory
Section 106 of the Evidence Act 1872 places a burden upon an accused to prove facts especially within his knowledge. Also look at the definitions of proved, disproved and not proved before you proceed. So, suppose you were seen going inside a room alone with your friend, who was murdered minutes later by an assassin who fled. The police don't believe you and charge you for murder. At trial, how the death occurred is a fact, within your special knowledge. The burden to prove that the death occurred in the way you allege rests upon you, but not to the standard of beyond reasonable doubt [Sawal Das v. State of Bihar, AIR 1974 SC 2276]. What if you fail to do so? If the Court believes the prosecution, then your fact is disproved. If neither party convinced the judge, the fact remains not proved.
This is at the heart of the last seen theory, a tool relied upon the the prosecution to shore up a case based on circumstantial evidence. The Prosecution must leave no other possibility open, to make "what happened" a fact "especially" within the knowledge of the accused, which must be explained by him. Only if the fact is proved or disproved can it become relevant to judgment, so mere failure to discharge the burden should statutorily be not enough to merit adverse inference. How does the Prosecution put forth the last seen theory? It must establish (a) the time when the accused was last seen with the deceased, (b) the time of death, and (c) strong link between the two to rule out possibility of any intervention from outside [See, Bodhraj v. State of Jammu & Kashmir, (2002) 8 SCC 45; Mohd. Azad v. State of West Bengal, (2008) 15 SCC 449; Shyamal Ghosh v. State of West Bengal, (2012) 7 SCC 646].
Applying it to the Facts
The prosecution case sought to establish a chain of circumstances so concrete, that it pointed to only one conclusion: the accused's guilt. A large hole was sought to be plugged by the last seen theory. Nobody else was in the house that night, so the accused must explain what happened.
Were initial requirements fulfilled though, for the last seen theory to be pressed? Everyone was last seen together at about 9.30 PM on 15 May 2008. There was a possible 3 hour gap between this and Aarushi's death. For Hemraj, an ambiguous time of death creates a possible 4-5 hour gap. This is huge, especially because the house had no security guard to check if anyone entered stealthily at night (nothing could show a break-in, but the possibility of entering by invitation was not considered).
Even if this was sufficient, what about the explanation by the accused? They said they were asleep, and any noise was drowned out by the AC. The court chose to disbelieve this, perhaps because it made too much sense. Instead, it bought the story that a 14 year old had willingly opened her room to invite her 45 year old servant for intercourse, only to have been caught by her father in the act who killed them both.
Mistaken as to Law?
The decision is overburdened by citing and discussing case law. In a rare insight into its approach, the Court explains at 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 of a comparatively lighter character. In view of 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 [emphasis supplied].
I believe the Judge gives himself away here. He wrongly holds the prosecution to a lesser burden, simply because there were no witnesses barring the accused, Further, he confuses the persuasive burden to prove the charge and the burden under Section 106 to prove facts. If the accused proved the deaths occurred as per their story, its an acquittal. But, is a failure to prove your case always the end? No. The fact may remain not proved by either side. What that means here is that while the facts show the deceased persons were murdered, how this occurred remained not proven by either side. Such a conclusion would logically mean, that the accused persons could not be found guilty of murder.
Only time will tell how these issues are framed and decided in the pending appeal.