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HindustanTimes Thu,24 Apr 2014

Many legal experts point to contradictions in order, some say it’s for HC to decide

Satya Prakash, Hindustan Times  New delhi, November 28, 2013
First Published: 01:40 IST(28/11/2013) | Last Updated: 01:41 IST(28/11/2013)

 A day after a Special CBI court sentenced dentist couple Rajesh and Nupur Talwar to life imprisonment for killing their only daughter Aarushi and domestic help Hemraj Banjade, many legal experts questioned the verdict, saying there were many contradictions in it.

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“The court has concluded that it was a case of grave and sudden provocation and that Rajesh and Nupur Talwar committed the twin murders after seeing Aarushi and Hemraj in a compromising position. If that is so, then the case falls within the exception to Section 300 of the Indian Penal Code that defined murder,” said senior advocate Vikas Singh.

According to Exception-I to Section 300 IPC, “Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

Singh, a former additional solicitor general, pointed out, “Even if the defence did not take this plea during the trial, once the court has concluded that the murders were committed due to grave and sudden provocation, the accused should have been given the benefit of this exception and the conviction should have been for culpable homicide not amounting to murder.”

The trial court could have convicted the dentist couple for murder only if there was a “cooling off” period to neutralise the grave and sudden provocation theory. “There is nothing in the verdict to suggest that there was a ‘cooling off’ period,” Singh said.

Talking about the famous KM Nanavati case (1959) in which the Navy officer killed his wife’s lover Prem Ahuja, he said in this case the provocation was grave but not sudden as the accused had actually taken much time in preparing himself for committing the crime and therefore, he was convicted of murder.

Former Supreme Court Bar Association secretary Ashok Arora said: “The defence can still take the plea of ‘grave and sudden provocation’ before the Allahabad High Court during the appeal.”

Justice BA Khan, a former Chief Justice of Jammu and Kashmir High Court said: “If there is any omission in the trial court’s verdict, it will be corrected by the Allahabad HC. Till then it would not be proper to criticise the verdict.”

Advocate Tanvir Ahmad Mir, who represented the Talwars during the trial, said: “The trial court has illegally sought to shift the burden of proof on the accused despite the fact that the CBI positively and clearly claimed that it was the Talwars who killed Aarushi and Hemraj with a particular methodology using particular weapons. If they (CBI) claimed all these things, it was for them to prove the charges.”

Mir added: “It was not open to the court to shift the burden on the accused under Section 106 of the Evidence Act.”

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