A CASE OF INJUSTICE
THE marble facade of the Allahabad High Court gleamed in the afternoon sun. On a normal day, an endless stream of people squeeze through the stone colonnades of the nation’s largest temple of justice, humming with 160 judges and 15,000 lawyers. But on October 12, there was no place to stand. Hundreds of CRPF men stood guard around courtroom 40. Dark-suited lawyers, clerks, court officers and throngs of restless people flowed back and forth, trying to enter. Not even a fly could get in without a pass. Inside, however, the courtroom was jammed to the walls—some standing, some sitting on the floor—and buzzing with excitement.
The most controversial case of all time, the Noida double murder of May 16, 2008, was again awaiting justice: what would the judges say today? At 2.35 pm, the buzz turned into a deafening din. Justices Bala Krishna Narayana and Arvind Kumar Mishra were due to arrive anytime. Suddenly, a hush. Eyes craned to the front of the room as the ushers hurried in, signalling the entry of the judges behind them. A shiver of anticipation swept across. Justice Narayana adjusted his glasses, picked up the sealed envelope lying on a desk, tore it open and took out sheafs of paper—the verdict. As he started reading, pin-drop silence cloaked the room, from vaulted ceilings to panelled walls.
NINE YEARS OF BUNGLING
It was a verdict read out in just six minutes: “The judgment dated 25.11.2013 and passed by Shri Shyam Lal, Learned Additional Sessions Judge & Designated Judge, is hereby set aside. The appellants are acquitted of all the charges framed against them.” It was a verdict arrived at after hearing 100 hours of arguments and reading 20,000 pages of documents: “Nupur and Rajesh Talwar should be forthwith released. From the facts and evidence on record, we find neither the circumstances nor evidence is consistent.” It was a verdict delayed by nine years—nine long years—when two deaths in a household almost destroyed two more lives.
Even as the justices mentioned brief points from their 273-page verdict, there was no doubt among those in the courtroom that they were witnessing a historic event, a definitive moment in the ever-shifting contours of a murder mystery that left everyone baffled for a decade. Pointing a finger at the relentless bungling, mountains of errors and tampered evidence by the police, by the Central Bureau of Investigation (CBI), Justices Narayana and Mishra tore into CBI trial judge Lal, who on November 26, 2013 had convicted and sentenced to rigorous imprisonment for life (and a fine of Rs 10,000 each under Section 302/34 of the Indian Penal Code, apart from five years’ rigorous imprisonment and a fine of Rs 5,000 each under Section 201/34 of IPC). In addition, Rajesh Talwar was convicted and sentenced to one year simple imprisonment and a fine of Rs 2,000 under Section 203 of the IPC. All the sentences were directed to run concurrently. “The learned trial judge acted like a maths teacher,” the justices said, “who is solving a mathematical question by analogy, after taking certain figures for granted.”
NO DIRECT EVIDENCE
“This is one of those unusual cases,” the justices write in their verdict, a case where there is no direct evidence on record. So what did the trial court judge consider in 2013? Here are the main points: who were the people seen last with the deceased on the night of May 15-16, 2008? The Talwars. What was their motive? “Grave and sudden provocation” (seeing Hemraj and Aarushi in a compromising position). Where was the site of the murders? Right at the Talwar home. Why couldn’t it be outsider(s)? There was very little time for outsiders to commit the crime. “The learned trial judge has prejudged things,” explain Justices Narayana and Mishra, “telling a different story propelled by vitriolic reasoning”.
Why not outsiders? It was a close scrutiny of maid Bharti Mandal’s deposition that allowed the justices to put a spoke in the “most material allegation made by the CBI”: that the Talwars’ flat was “latched from inside” on the morning of May 16 (and, hence, no outsider could have entered the apartment the night before). The justices observe: “The testimony of Bharti Mandal was thoroughly insufficient for establishing that the Talwar household was locked from inside in the morning hours of May 16 at around 6 am.”
The Talwar apartment had three doors: an outer iron mesh door, a middle iron mesh door, and an inner wooden door. Bharti’s evidence does not show anywhere that the outer door was locked from inside, the justices point out. Yes, initially she could not open the outer door. When Nupur opened the wooden door, the evidence shows, they found the middle door locked/ latched from outside (“Hemraj may have locked it and gone to fetch milk from Mother Dairy,” Nupur had told Bharti).
Bharti managed to open the outer door the second time, as she says in her deposition. The outer door not opening easily was not unusual. More than one witness said it used to get jammed. “Yeh darwaza jhatke ke saath aur awaaz ke saath khulta tha (this door would open with a jolt, making noise),” as Umesh Sharma, Rajesh’s driver, deposed. Or as Shashi Devi, who ironed clothes in the locality, said: “Bahri darwaza chipka rahta tha (the outer door would be stuck)”.
LOOPHOLES GALORE
The CBI alleged that the Talwars had dressed up the crime scene. Toys, school bag, a book titled The 3 Mistakes of My Life, on or near Aarushi’s bed, were all found in exactly the same position and without any blood stains, the bedsheets had no discernible creases, the Talwars had no blood on their clothes, Aarushi’s room was cleaned up right after her body was taken for the last rites, Hemraj’s body was covered with a cooler panel. What’s more, Rajesh destroyed material evidence by getting the outer iron grill door removed and the apartment painted one and a half years after the tragedy. It was on “destruction of evidence” that the CBI had charged Rajesh with Section 201 of IPC.
“In our opinion, the toys etc., having neither been seized nor subjected to forensic examination, these allegations do not have any substance and cannot be accepted,” the justices held. They point to the opinion of forensic expert, Dr M.S. Dahiya, that the injury could have immobilised Aarushi instantly, leaving no room for resistance or reason for the bed to be tumbled. Records show that there was also no evidence of either the Noida police or the CBI ever issuing any notice to the Talwars, prohibiting alteration in the apartment: “Neither Aarushi’s room was sealed nor any instruction in this regard ever issued by the police.”
The justices came down hard on the police and the CBI for loopholes in the investigation: the failure to pick up fingerprints embossed on the cooler panel covering Hemraj. “We do not consider it proper to presume that the cooler panel was put over Hemraj’s body by the Talwars, in absence of any cogent evidence in this regard,” they point out.
TAMPERING WITH EVIDENCE
The Allahabad High Court verdict also notes that the investigating agencies tampered with the evidence. The CBI suddenly came up with an entire theory of golf club and surgical scalpel as murder weapons, but the golf clubs were not even kept properly: “The golf clubs were not sealed individually, but bundled together and tied with a piece of cloth around the middle, and sealed that way. The handles and the heads remained uncovered.” Dr B.K. Mahapatra of the Central Forensic Science Laboratory (CFSL), New Delhi, reported: “No DNA or blood was found on these.”
Dr Sunil Dohre, a public health specialist called on to conduct Aarushi’s postmortem, changed his statement five times between May 2008 and September 2009, the judges point out: from “no abnormalities detected” to “vagina abnormally expanded”. Nor did he ever write about golf club or scalpel injuries in the postmortem.
Dr Naresh Raj, who conducted Hemraj’s postmortem, also did not mention surgical cuts on Hemraj’s neck or golf club injury. “In fact, Dr Raj admitted in his cross-examination that neither any surgical scalpel nor golf stick was sent to him by the CBI for his opinion,” the justices point out. Dr Raj came up with a new theory almost a year after he did Hemraj’s postmortem: that his sexual organ was “swollen, indicating coitus before murder”. In court, he admitted that his claims were based on his “experience as a married man”.
The first CBI team inspected the Talwars’ flat, using scientific equipment like polylight for tracing blood or semen not visible to the naked eye, and found no sign of a body being dragged to the terrace, no blood or DNA of Hemraj in Aarushi’s room. Dummy sound tests revealed nothing could be heard in the Talwars’ bedroom, with the ACs on. Nupur and Rajesh were found to wear the same clothes the night before.
“Upon critical evaluation, it transpires that (the police and the CBI) made material improvements in their investigations that changed the core of the case,” the justices explain. The narrative slowly became how the deceased were caught by Rajesh Talwar in the midst of sexual intercourse: “Those material improvements were essentially a matter of subjective findings, which have no place in forensic science.”
WHO KILLED AARUSHI?
The answer possibly lies in different sets of evidence. Some of these have been brought to the bench’s notice by Talwars’ lawyers. For instance, “the possibility of the presence of outsiders” at the Talwar residence that night. First, a bottle of half-consumed Sula wine, an empty Kingfisher beer bottle and a bottle of Sprite were recovered from Hemraj’s bed-
“It transpires (the police and CBI) made material improvements in their investigations that changed the core of the case.” Justices B.K. Narayana & A.K. Mishra, Allahabad High Court
room. “Dr B.K. Mahapatra, in his evidence before the trial court, stated that bloodstains were detected on these,” the justices hold. Not just. DNA generated from these have matched DNA in evidence recovered from the terrace: a cotton thread that was seized from the door and a bloody palm print on the outer wall of the terrace. Mahapatra also indicated that the DNA profile found on a pillow cover (actually seized from Hemraj’s room and erroneously shown to have been seized from Aarushi’s room) matched the cotton thread and palm print. Serologist Suresh Kumar Singla had reported that the human blood found on Hemraj’s bedsheet, pillow and pillow cover as well as the palm print on the terrace belonged to a blood group (AB) that wasn’t his.
Records also show that bloody footprints were found near Hemraj’s body, which did not match the Talwars’. Similarly, Hemraj’s phone was found to be active the day after his death. It could have been “a very strong circumstantial evidence”, indicating the presence of an outsider, most likely the murderer, say the justices. But the police did not follow through.
To the justices, there’s another “clinching piece of evidence” that clearly establishes the presence of the erstwhile accused, Krishna (Thadarai, the Nepalese clinic assistant of Rajesh), in the house: blood on Krishna’s pillow, seized from his house and sent for DNA examination, the judges mention. A report of the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, shows that it matched the palm print on the terrace.
On June 14, 2008, a team of CBI officials had raided Krishna’s home. This was right after his confession to the CBI that he had committed the double murder, along with his accomplices—Raj Kumar and Vijay Mandal. The raid had led to the recovery of several articles, including a khukri (dagger from Nepal) with a sheath and a purple pillow case. Hemraj’s DNA was generated from Krishna’s purple pillow case, the justices say.
NO KAUL OF DUTY
The most censured name in the verdict is that of A.G.L. Kaul, investigating officer since October 2009. He was widely known for his “unconventional” tactics in the CBI, his name featuring consistently on the CBI’s list of ‘Officers of Dubious Integrity’, although he always got praise and plum postings. Kaul would surely have emerged as India’s ‘most wanted’ man now. On October 12, Justices Narayana and Mishra brought up his name at least 31 times: for spreading new speculation about murder weapons without evidence (golf clubs and scalpels), for giving new twists to postmortem reports and introducing new ‘sensational’ angles (Aarushi’s “inflated vagina” and Hemraj’s “swollen private parts”), for tampering, influencing and pressuring scientists and doctors (suggesting ‘typographical errors’ in DNA reports). Kaul died untimely of a massive heart attack in sleep, at age 54 on October 10, 2014—just 11 months after he secured the conviction of Aarushi’s parents.
With the release of the Talwars, ‘Who killed Aarushi?’ has become a talking point again. More important are the flaws the court cited: the failure to guarantee a defendant’s right to justice and the prosecution’s failure to prove by cogent evidence guilt beyond reasonable doubt. With a shoddy probe, hearsay evidence, tutored testimony and evidence obtained through coercion, this is a trial that will be remembered as a textbook case of what should not happen and what we don’t want to happen. Let us define our terms and demand accountability from the police, investigating agencies and our judges.