At this moment, in a CBI court in Ghaziabad in Uttar Pradesh, events are unfolding that might eventually go down as one of the most shameful scandals in India’s legal history.
This is a story that should frighten everybody. It’s a story of colossal incompetence and prejudice; a story about a wilful miscarriage of justice. It’s a story that could happen to anyone in the country.
Here’s how it unfolds. Until the intervening night of 15 and 16 May 2008, the Talwars were just an ordinary middle-class Indian family. Rajesh and Nupur Talwar were dentists; their 13-year old daughter Aarushi was a pretty, vivacious grade 9 student in Delhi Public School (DPS), Noida. By all accounts, they were a happy, very close-knit family. On the night of 15 May, Dr Rajesh Talwar had bought his daughter a camera: her birthday was coming up on the 24th; the venue for a celebratory party with her friends had been booked for 18 May. Delighted with her present, Aarushi took pictures of herself and her parents. The clock on the wall behind her showed 10.10 pm.
By the morning of 16 May, all of this had irrevocably and devastatingly changed. Aarushi was found brutally murdered in her bed, her head bludgeoned, her throat slit. At first, the prime suspect was the Talwar’s live-in house help, Hemraj, who was missing from the house. But a day later, on 17 May, Hemraj’s body was found on the terrace, his head similarly bludgeoned, his throat slit.
Since that discovery, the “Aarushi-Hemraj double murder” has become the stuff of urban legend. Everyone knows about it; everyone has an opinion. It’s as if the facts no longer matter.
The discovery of Hemraj’s body had another impact: it triggered a juggernaut that has not stopped till this day. Soon after the find, before any investigation could bear fruit, the Noida police called a press conference and began to spin a conjectural story that has grown and grown, till it seems almost impossible to dislodge. The media fed on this story with an almost crazed frenzy, throwing every modicum of journalistic propriety and fact-checking to the wind.
Suddenly, the Talwars found they were not human beings anymore. They were not parents who had just suffered the most catastrophic tragedy. They were not even just ordinary suspects, pending further inquiry and proof. They were merely ready meat.
Over the last five years, the media has mashed and cooked and masticated this story in any way they choose. The Talwars have been completely stripped of their humanity: now you can mount any story on them and it holds good. Nobody has to prove anything; no one has to be logical; no one has to apply their mind.
They are their child’s murderers. They are wife-swappers. Rajesh was having an affair. Aarushi was not their real child. They didn’t cry enough. They looked too composed. They had dressed the scene of crime. They had acted on sudden and grave provocation. They had found their 13-year-old daughter in a compromising position with their 45-year-old servant. The neck injuries were made by a surgical scalpel, by surgically trained people. Rajesh used a golf club to bludgeon his daughter and servant. No one else was present in the house that night. There was no forced entry. Rajesh had seemed reluctant to open the terrace door for the police. They had interfered with the post-mortem report. They had cleaned out the evidence.
Search your memory: chances are you won’t have to search deep. If you think of the Aarushi-Hemraj murder, all or some of these assumptions are sure to leap at you. Screaming headlines, television reconstructions of dark silhouettes, a 13-year-old girl having sex with a naked man, a father with a raised golf club, hysterical background music, incessant police and CBI theories put out in the public domain. All of this has done the trick. This is now a closed case: the Talwars have already been convicted in the public mind society’s desire for vicarious spectacle. There are enough accounts from family and friends of how Rajesh had banged his head on the wall and been mad with grief, how Nupur had cried hysterically on the phone, how they both had been in severe shock, how decisions were being made for them by everyone else around them those fateful days. But the media grievance is, why didn’t they do this for public consumption, why not on TV debates?
Even so, ultimately, this unconscionable public trial would have been irrelevant if the judicial process had stayed on the rails. But before you read what’s happening in the trial court in Ghaziabad, before you read what real evidence there is either against or in favour of the Talwars, consider this:
For a brief period after Hemraj’s body was found, the needle of suspicion had moved towards Hemraj’s friends — three domestic staff and workers who lived in the area. Krishna, a helper in Rajesh Talwar’s clinic; Raj Kumar, a house-help with Dr Praful and Anita Durrani, who were the Talwars’ friends; and Vijay Mandal, who worked at another neighbour’s house.
During this time, both the Talwars and these aides were put through two sets each of polygraph tests, brain mapping tests, lie detector tests, and narcoanalysis.
Mark this: both Nupur and Rajesh Talwar showed absolutely no deception in their tests. They also showed no knowledge of the crime.
The aides, on the other hand, particularly Krishna and Rajkumar, showed deception in their lie detector tests. Even more crucially, their narco tests pointed to their involvement in the crime. They admitted to their presence in the house that night, described the sequence of the crime, the murder weapon, and how Aarushi and Hemraj’s phones were disposed of. Arun Kumar, the head of the CBI team investigating the murder, held a press conference on 11 July 2008, sharing cautious details of these tests with the media.
This was a serious breakthrough. Narco tests are not admissible as legal evidence, but they are important indicators of which way an investigation should head. Section 27 of the Indian Evidence Act also says if any incriminatory discoveries are obtained pursuant to a voluntarily administered narco test, then these discoveries become legally admissible. This, read with a Supreme Court judgment in Selvi & Others vs State of Karnataka (2010), could have made the beginnings of a strong case.
As things turned out, two major discoveries — one of them absolutely explosive — emerged from Krishna’s narco. But let’s come to that a little later in this story.
Despite this breakthrough, things could not reach any logical end. In September 2009, investigating officer Arun Kumar was taken off the case. A new CBI team took over, with AGL Kaul as the investigating officer. With this change of team, the case suddenly took a new and malicious twist. While it would have been fair to continue investigating both sets of suspects — the Talwars and the domestic aides — inexplicably, after the new team took over, the leads on the aides were allowed to go cold; the pursuit of the Talwars intensified.
Despite this, in December 2010, the CBI had to file a closure report on the case, citing “critical and substantial gaps” in the evidence against the Talwars, an “absence of a clear cut motive”, and an “incomplete understanding of the sequence of events”.
One would imagine this — an absence of substantial evidence and motive, the two most important markers of a murder — would have been enough to absolve the parents of murdering their only daughter. Yet, the CBI named the Talwars as the chief suspect while giving a complete clean chit to the aides.
They also left the story about Hemraj and Aarushi’s liaison dangling in the report as a salacious insinuation. Aghast at the violence being done to their daughter’s memory, aghast the perpetrators would never be caught, aghast they had been left smeared as possible murderers, the Talwars protested against the closure report and asked for the investigation to be reopened. They did not want a premature clean chit, they pleaded; they just wanted the investigation to continue. Hardly classic behaviour for people guilty of a crime.
In a bizarre twist, however, District Magistrate Priti Singh threw out their petition and ordered a trial based on the same closure report that had said it did not have sufficient evidence to charge them. From suspects, the Talwars were now the main and sole accused. The aides remained completely out of the ambit of the case.
Before you read further now about what’s been happening inside the special CBI court, consider just this fact and draw your own conclusion about whether it sounds like a fair trial.
So far, the CBI has produced 39 witnesses. Given how flimsy and mala fide some of them have been, the Talwars wanted the prosecution to call 14 other witnesses — most of them key officers like Arun Kumar from the first CBI team, as well as from the Noida police — who they could cross-examine to demonstrate the correct sequence of events, as well as establish the mala fide of the second CBI team. The court did not grant permission. The Talwars challenged this in the Allahabad High Court. They were denied permission. They went to the Supreme Court: they were denied.
After this, the Talwars asked permission to produce 13 of their own defence witnesses. They also asked for the right to access key documents pertaining to their case: their own and the aides’ narco tests as additional material; the call records of the aides; as well as forensic slides and post mortem reports, etc, that their own expert could examine. Arguing against this, RK Saini, the prosecution lawyer, said they should not be allowed to call any witnesses at all. The Talwars, he said, were merely trying to waste the court’s time.
So: two parents with no former history of dysfunctionality or rage are accused of butchering their only child. There is admittedly no substantial evidence against them. Yet, the prosecution gets to call 39 witnesses. They should be allowed zero.
Does this sound like a fair trial? (The slightly crazed irony of this is doubled when you know that earlier, in July 2008, the same RK Saini had pleaded in court for Rajesh Talwar to be released from custody because his role in the crime had been “thoroughly investigated”, his tests showed “no deception”, none of the crime scene clues matched with him, and his custody was not required “in the interest of justice”.)
As this story goes to press, the court order on the Talwars’ plea has come in: they have been denied access to all further documents related to their case. Of the 13 witnesses they wanted to call in their defence, the judge has allowed only seven: no doctors, no pathologists, no people with any objective standing in the case; only a few family members and friends. Four of these have been ordered to be produced at one go on Thursday, 20 June 2013.
Unless one goes into the details of the case, it’s impossible to understand the extent of the prejudice the Talwars are facing. The CBI’s argument against even this basic norm of natural justice — that an accused should be allowed to present his defence — is just the tip of the mala fide against the Talwars.
At the heart of this, there is a question everyone finds hard to answer: why should the CBI go out of its way to nail the Talwars? It’s not as if either they or the domestic aides are powerful people. So, why would the CBI gun for one and protect the other; why would it not just remain neutral in its search for justice?
The answers can only be assumptive. From the way things have unfolded, two things seem clear. One, the investigation has been frighteningly shoddy from the beginning, both by the Noida police and the CBI. Two, AGL Kaul, the investigating officer of the second CBI team, seems to have bought very deeply and zealously into the insinuations surrounding the Talwars. It drove his line of enquiry; it explains why his closure report was full of irreconcilable gaps.
However, when Magistrate Priti Singh summarily ordered a trial on the basis of this report, things got even more complicated. As Avirook Sen, a journalist who has been attending the trial regularly, writing sharp reports for the Mumbai Mirror, says, “According to me, the CBI never intended to go for a trial. But when a trial was ordered, they just had to extemporise the evidence along the way. Now, with each passing day in court, they are getting more and more invested in their own story.”
It is a cliché to call something Kafkaesque. But what other word can one find for the chilling situation the Talwars find themselves in. Amazingly, Javed Ahmed, Joint Director, CBI, under whose aegis the second CBI team led by Kaul has been functioning, pretty much admits this.
When asked why the CBI was resisting the Talwars’ plea to produce witnesses in their own defence, he said, “We are within our rights by law to do so. There is nothing illegal about it.
It is wrong to insinuate we are being wilfully unfair to them. They can ask for as many witnesses as they want, we can put up our objections. After that, it’s for the court to decide. Our duty is to ensure there is a speedy trial and no one tries to prolong it.” In a rather bewildering non sequitur, he added, “What would you have said if the Talwars had asked for 2,432 witnesses in their defence?”
They’ve asked for 13, not 2,000, you remind him. “I was just giving that as an example,” he said.
I then asked, was it not strange for the CBI to admit in its final report that it has insufficient evidence against someone, suggest the case should be closed, and yet have to prosecute them in a trial on the basis of that. Given this context, was it not strange too that they had argued against Rajesh Talwar’s plea for further investigation before trial and were now stalling the production of defence witnesses?
“You are absolutely right,” he said. “It is a matter of stated record that we have insufficient evidence. But once the judge has ordered a trial, who am I to argue against the judge’s decision? It just becomes our duty to assist the court and we damn well have to do our job in whatever way possible.” Unfortunately, as this story will show, this “assisting of the court” has literally included manipulating and cooking up evidence.
It is also depressing to hear the CBI say, who am I to argue against the judge? You are the premier investigating agency in the country, you say, and you know you do not have evidence. In the interest of justice, isn’t it only fair that you argue against the judge’s decision and push for further investigation before going to trial?
Now imagine the Talwars’ quandary. They are the sole accused in a case where there is no real evidence against them. Yet when they approached the Allahabad High Court and the Supreme Court pleading for an expanded investigation that could probe the possible involvement of outsiders, as well commission advanced forensic tests like Touch DNA (which could even prove their own guilt), their plea was rejected by both courts. The Supreme Court told them this seemed a “last ditch effort to salvage a lost situation”. It also told Nupur Talwar that if she kept coming to them every time she disagreed with orders by the trial court, she would attract “exemplary costs”.
Forget the constitutional provision that every citizen is innocent until proven guilty. In this case, it seems the Talwars’ constitutional right to appeal the higher courts has also been foreclosed.
Javed Ahmed and RK Saini declined to answer any specific questions about the case. “You will appreciate my position,” Ahmed said.