Aarushi-Hemraj murder case – Shoddy probe, flawed verdict?

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The butler didn’t do it. Matter of fact, the butler was also done away with. So, by process of elimination, those who remained did it: in this case, the parents. After more than five years of struggling with lack of “clear and clinching” evidence, an overzealous media and a family — that is even now trying to come to terms with their daughter’s murder — the CBI has finally “solved” India’s most famous whodunit: the Aarushi Talwar-Hemraj double murder. In a 210-page judgment, on 26 November, a CBI court in Ghaziabad, Uttar Pradesh, concluded that Dr Rajesh Talwar and his wife Dr Nupur Talwar were guilty of killing their 14-year-old daughter Aarushi and 45-year-old domestic help Yam Prasad Banjade alias Hemraj and sentenced them to life imprisonment under Section 302 of the Indian Penal Code. The court further ruled that the couple would have to serve a concurrent term of five years imprisonment each for concealing and destruction of evidence and another year was handed to Rajesh for filing a false FIR.

As it were, the court’s verdict was on expected lines; the lynch mob had already made up its mind. The media, playing to the gallery, had done its bit in the deliverance of “justice”. In more ways than one, everyone had played Sherlock Holmes. Armchair detectives thrashed out the case on the Internet and the electronic media, doling out theories of how the murders had been committed.

A case has been built on questionable circumstantial evidence without giving the parents of the murdered girl the benefit of doubt. This, despite the fact that at one point the investigators were forced to admit in their closure report that they could not build a convincing story from their findings. It is not a case of “this definitely happened”, but one riddled with a slew of maybes.

In criminal jurisprudence, the principle of reasonable doubt is well-established, especially in cases where the evidence is merely circumstantial. The guilt of the accused has to be proved by the prosecution’s lawyer and established by the court. In this case, the court did not appreciate the lack of any clinching evidence; it instead provided 26 reasons to prove the Talwars’ guilt. Testimonies have been accepted or discarded in line with the court’s belief that the Talwars were responsible for the double murder.

Lawyer for the Talwars, Tanvir Ahmad Mir, believes that basic norms of criminal jurisprudence were not applied to this trial. “The prosecution built a theory that the murders were committed in a certain way without any convincing proof,” says Mir. “Then they conveniently shifted the burden of proof on the accused. How could the prosecution do it when it built the case claiming it knows how and why the murder happened? That Aarushi and Hemraj were caught having sex and bludgeoned to death is a positive case. Then, there is no longer any burden on me to prove my innocence. They had to prove Hemraj was present, that he was in the middle of the act, he was killed and then dragged to the roof wrapped in a bedsheet, but there was nothing to corroborate that. So, they conveniently shifted the burden of proving innocence to the accused. There are ample case laws ( judgments) that have held that this is the wrong approach. I tore the CBI’s case to shreds, but I can’t defeat the judge when he is going to write the verdict and if he is against me.”

It is not unusual in India — or elsewhere for that matter — to come across investigating agencies that refuse to give up an investigation on the grounds of lack of evidence. In fact, it is quite common in trials of terrorist and extremist incidents. There are few investigators who can tell a prosecutor that they have failed to gather enough evidence to nail anyone.

This case has had at least four sets of investigating officers, one from the local police in Noida, where the Talwars lived, and three from the CBI. The last of these teams, baffled by the lack of “clinching” evidence, and a crime scene that did not throw up sufficient clues, had filed a closure report two years ago. Under mounting pressure from the media, the court decided to go ahead with the case on its own. If no one was nailed, the frivolity of some media reports and the trial held and decided in television studios would have stood exposed. This was unacceptable to most sections of the media.

On the face of the evidence or its lack thereof, there is a good chance that this case could not have been solved. Observers had noted that the evidence was “extemporised” along the way. Yet the court accepted the prosecution’s narrative, without answering the questions raised by the defence.

In the prosecution’s version, on the night of 15 May 2008, Rajesh and Nupur Talwar chanced upon their daughter Aarushi in an intimate position with Hemraj, their domestic help, at their L-52 house in Jalvayu Vihar of Sector 25, Noida. Hemraj was wearing chappals at the time. Enraged at the sight, they bludgeoned both to death with a golf club and also slit Aarushi’s throat with a surgeon’s scalpel. They then dragged Hemraj’s body (with chappals on) and dumped it on the terrace on the second floor. They also cleaned up Aarushi’s vagina to remove any traces of sexual activity, had a glass of scotch and went back to sleep.

Next morning, at 6 am, they were woken up by the arrival of part-time domestic help, Bharti Mandal. This version ignores the fact that not a drop of Hemraj’s blood was found on the floor of Aarushi’s room.

“The trial has been a mere formality and is not based on the evidence placed before the court,” says Vandana Talwar, Rajesh’s sister-in-law. “The verdict was actually given two years ago when the CBI filed its closure report. What message is the investigating agency giving here? That even educated parents can kill their daughter. There has been character assassination of two dead people, including a 13-year-old girl, and two innocent persons have been put in jail. Worse, they have allowed three criminals to go and commit more crimes.”

The “three criminals” she alludes to are Krishna Thadarai, Vijay Mandal (no relation to Bharti) and Raj Kumar, who the Talwars claim are the actual killers. While Krishna was a helper in Dr Rajesh Talwar’s dental clinic, Raj Kumar was a domestic help of the Durranis, neighbours of the Talwars. Vijay too was a domestic help at another neighbour’s place. All three were friends of Hemraj.

The case has taken several twists and turns since Aarushi’s body was found on 16 May 2008. For starters, the police team that had rushed to the scene of crime on being reported about Aarushi’s murder, did not find Hemraj. It was, therefore assumed, that he was the murderer. The police had almost launched a manhunt and announced a reward of Rs 20,000 to find him. But, the next day retired police officer and key prosecution witness KK Gautam — friend of a neighbour of the Talwars who came to the house to console them — claims to have discovered Hemraj’s body on the terrace. However, Vandana Talwar, Rajesh’s sister- in-law, says that it was she who asked the police and Gautam to check the terrace because it had not been done the day before.

The post-mortem report on Hemraj’s corpse indicated that his head had been smashed and there was some tumescence in his day-and-a-half-old corpse. Even the judgment notes that the “willy was turgid” — a phrase circulated with glee on social media. The case now became one where the parents of a girl had stumbled upon their daughter engaged in sexual intercourse with the domestic help and then killed them both in a frenzy. In other words, this became a fit case for an honour killing. This theory, propounded by the Uttar Pradesh Police, was first discarded by the CBI team, only to be picked up in subsequent investigations by latter teams, until the point where all evidence seemed to point towards it.

Sample this as an example: Bharti Mandal, the Talwars’ domestic help, was the first potentially impartial witness to reach the house on the morning of 16 May. This very starting point of the prosecution’s narrative is where its case can be contested.

In her first statement to the UP Police on 16 May, Bharti had told them that when she had come, she found the iron-grill door to the Talwars’ house locked from outside. This made room for the theory that this was an outside job and that the perpetrators had locked the couple in after committing the murder. This would also support the theory that Hemraj’s three friends may have been responsible for the murder.

Curiously, during the trial, Bharti changed her testimony midway and said that the door was locked from inside and Nupur had opened it to allow her in. When she was cross examined by the defence lawyer, Bharti admitted that the CBI had coached her to change her testimony. Bafflingly, the court also admits this in its order. Yet, it accepted her testimony that the door was not locked from outside, citing in its order that since the witness belonged to “the lower strata of society, was uneducated and needed to be tutored”, it saw nothing wrong with the prosecution’s action.

“It leaves me flabbergasted that the judge admits Mandal was tutored and yet finds it okay since she is from the lower strata of society,” says defence counsel Mir. “Will this mean that now the Indian Evidence Act will now apply differently for different people belonging to the lower strata of society and those who do not? That the former category can be tutored before a trial? This alone should establish the Talwars’ innocence.”

This is the general line of inquiry pursued by the CBI court, which set aside every bit of evidence to the contrary.

On 16 May, with due permission of UP Police constable Sunita Rana, the Talwars got Aarushi’s room cleaned in the afternoon. Since the mattress she was sleeping on was dripping blood, the cleaners took it upstairs to the terrace and dumped it there. Some of the blood dripped on the stairs. Later, Gautam talked about these bloodstains both in his statement to the investigators and his testimony in court. By now, more than 12 hours had passed since the murder, but curiously, the cleaners did not notice Hemraj’s body on the terrace or the rotting stench.

In what can only be described as a mysterious twist, an assistant executive magistrate of the UP government, Sanjay Chauhan — who claimed that he regularly drove around 50 km from Greater Noida to the Noida Stadium near the Talwars’ residence for his morning walks — said he “chanced” upon the crime scene and noticed the bloodstains. He even said that he saw the Talwars didn’t look pained enough. No one, neither the CBI investigating team nor the court, was piqued to find out how a man who did not know the family and was not a neighbour happened to “chance” upon a crime scene. Who invited him in? Why did he come to a house where he knew no one? No such questions were raised. Chauhan claims that he did so because the nature of his profession and the presence of police cars outside the house made him curious to want to go in. Yet, it still begs the question as to how he managed to access the staircase, which is well inside the house.

The investigators also seem to have glossed over the possibility that the stains could have been left behind by the blood-dripping mattress that was taken to the terrace on the afternoon of 16 May, much after Aarushi’s body was discovered.

The whole probe is riddled with such inconsistencies. The investigation into the double murders was first headed by the Noida Police. In a press conference, Gurdarshan Singh, then IGP, UP, said that Rajesh Talwar had been having an affair with someone. He said that the knowledge of Rajesh’s affair brought Aarushi and Hemraj closer and that this resulted in an affair between the two. This declaration is singularly important because it revealed a supposed murder motive for the Talwars and the moralising public swallowed it whole.

“Two press conferences were uncalled for — one, which was addressed by the UP IGP, which was too hurried, and the second, which was addressed by the CBI IG, where he discussed the closure report,” says former IPS officer Kiran Bedi. “These two press conferences actually weakened the case.”

How did the theory of this scandalous affair between the teenager and the 45-year-old domestic help come to the UP Police? It was first suggested by Krishna, a helper in Rajesh’s clinic, who said that Rajesh may have killed the two because of this. However, a month later, in a CBI-directed narco analysis test, Krishna gave a different version. He said that on 15 May — the night of the double murder — he was with Hemraj, Raj Kumar and Vijay Mandal in the Talwars’ house, had a few drinks and listened to some Nepali music. He also described the murder weapon — a khukri — which was later found in his room.

Based on this first statement, the UP Police arrested Rajesh a week after the murder. He was dragged to a police car while calling out to his brother, “Dinesh, they are framing me.” That scene, played like a stuck record by the electronic media, is still available online. A television channel tried to interview a nervous and speechless Nupur Talwar. The speechlessness of a shocked wife and mother was interpreted as cold, calculated and composed behaviour of a murderer by the media and lapped up by the public.

Not satisfied with the investigation by the UP Police, the Talwars asked for a CBI probe. The investigating agency stepped in at the court’s direction, and the investigation was led by Arun Kumar, an officer of superintendent rank.

The wheels were set in motion and in June 2008, the CBI arrested Hemraj’s three friends: Krishna, Raj Kumar and Vijay Mandal. The investigators found discrepancies in Krishna’s statements. He was sent to Bengaluru for a narco analysis test, where he admitted to the crime. He also described the blood-stained khukri as the murder weapon and named Kumar and Mandal as accomplices. A blood-stained purple pillow case was also found in Krishna’s room. This pillow case was to set the tone for the final trial as events will later show.

Shockingly, the blood-stained khukri was never sent for DNA testing. In a bizarre finding, a Delhi-based lab, which tried to study the blood smears, said that it was neither human nor animal blood.

In this case of circumstantial evidence-driven investigation, the reasonable doubt went in favour of the men who admitted to the crime and not the mourning parents. In its 2010 closure report, the CBI ignored the pillow case with Hemraj’s blood found in Krishna’s room, but still gave the three suspects a clean chit.

According to records, this CBI team also conducted an interesting audio simulation test on the Talwars’ room. They turned on the air conditioner in the room and tried to listen to sounds being made outside by other team members. They did not hear anything. Thus, they reasoned, the Talwars, sleeping with the air conditioner on in the hot Noida summer, could not have heard any commotion. This was ignored by subsequent investigating teams. Even the court called it a wild suggestion to frame three innocent people. Importantly, the Talwars were not allowed to call SP Arun Kumar as a witness.

The three were let off, despite their brain-mapping and narco tests showing that they were lying. In fact, their tests showed that they had been present in the house on the night of the murder, narrated the sequence of the crime, how the two victims’ cellphones were disposed of, and, most importantly, led to the discovery of the khukri — the murder weapon. The court ignored this part of the investigation, citing the law that brain-mapping and narco tests are inadmissible as evidence.

One could, however, argue that even if the narco tests are not admissible as evidence, the tests could have gone further to establish reasonable doubt in favour of the Talwars. It would also have given a lead to the CBI team that filed a closure report in 2010. According to some judgments, legal proof may not be exact, clinical proof, but it must be convincing proof. It is not meant to be convincing by any degree of shrillness by any medium or agency, but by the claims themselves. The truth is that in cases decided on circumstantial evidence, the defence is guilty until proven innocent and has to provide a different theory/sequence of events/narration that must counter the presumptive one.

“One single family can’t stand against the might of a large and powerful investigating agency,” says a relative of the Talwars. Though he had failed to get enough proof against them, SP Arun Kumar’s investigation at least did not lack in imagination. It tried to look at fresh angles and proper ground-level work.

A year later, when the next set of investigators came, they discarded Arun Kumar’s investigations and went back to where the UP Police had left off. The only new thing they did was to reopen Aarushi’s post-mortem. The same doctor (Dr Sunil Dohare) who had earlier conducted Aarushi’s postmortem now said that the examination revealed that she was sexually active. Intriguingly, there was no reference to her sexual life in his earlier report. This re-established the honour killing theory propounded by the UP Police based on Krishna’s statement.

Dr Dohare said that the vagina might have been cleaned to remove traces of any seminal discharge during intercourse. This could be believable but a doctor (an expert) testified that if vaginal cleaning is attempted after death, the body will show what is known technically as post-mortem injuries. The expert testified that once rigor mortis sets in — when the body stiffens after death — it is impossible to clean the vagina without leaving any bruises around the vaginal area. The court dispelled this theory, saying that the court was not bound by it and that the testifying doctor was a friend of the Talwars. Neither the prosecution nor the CBI court sought a second opinion from another expert.

A white discharge was found in the vaginal canal. Any gynaecologist will tell you that that is normal in a post-pubescent girl but, unfortunately for the Talwars, the gynaecologist who testified in court was also known to them, and the court discarded her opinion as prejudiced. On the contrary, the court accepted the prosecution’s argument that the discharge could have been Hemraj’s semen.

Interestingly, in his statements to the police on three different occasions in 2008, though Dr Dohare had mentioned the presence of a white discharge in Aarushi’s vaginal cavity, he had said it was not semen. He had also not mentioned that the opening of the vaginal cavity was prominent and the vaginal opening could be seen. But, during the trial, he did an about turn and said that the vaginal opening was prominent and the vaginal cavity was open. This lent fuel to the theory of Aarushi being sexually active.

Even if we assume that the CBI court was correct in accepting this line of inquiry, it was only selectively used to prove that Hemraj and Aarushi had an affair. The same could also have been called to support the Talwars’ counter-claim that Hemraj’s three friends had entered Aarushi’s room, raped and killed her and before or after that, killed Hemraj. But it was not.

One of the most important pieces of evidence in a murder case is always the murder weapon; it must match with the injuries found on the corpse. This basic rule was overlooked in this high-profile case.

The injures on Aarushi’s and Hamraj’s bodies included one on their heads with a blunt instrument. With the help of narco test, Arun Kumar’s team had discovered the khukri in Krishna’s room. The handle and the blunt side of the knife could have been used to deliver the blows to Aarushi and Hemraj’s heads, and the blade could be used to slit her throat. The second CBI team also found golf clubs that Rajesh Talwar, according to his driver, had given Hemraj to clean, some months prior to the crime. The judge labelled the driver a hostile witness, because he thought that he was being loyal to his master. The court did not take into account that the driver had been tortured by the CBI at the time of giving the statement.

Linking the Talwars to the golf club is easy when you consider that it belonged to them. However, this too could be contested. Doctors testified that the injury mark to the heads and faces of Aarushi and Hemraj could not have been left by a golf club. The dimensions of the injury were also substantially out of proportion with that of the “weapon”.

Moreover, it leaves room for unanswered questions. According to the driver, Rajesh had given the golf club to Hemraj to clean, who lived in a room on the terrace. Now, why would Rajesh, upon hearing a noise in his daughter’s room, first go upstairs to get the club? Is it not natural for a father to first investigate the noise? Even if he felt the need to arm himself, would he not pick up something close at hand rather than climb a flight of stairs to get a golf club? The investigators’ narrative has this gaping hole, which was not filled.

Another theory that the CBI team has put forward that the two likely “murder weapons” were cleaner than the other clubs in the set. These two clubs were a driver and a putter. Now, any golfer will tell you that these are the two most used clubs in a golfer’s bag and need to be cleaned more frequently than the others.

Even on the question of motive, there are enough grey areas to create doubt. In his judgment, CBI court judge Shyam Lal accepted that the investigators have been unsuccessful in establishing a motive, which he said was essential to establishing guilt. Yet, he chose to pass a guilty verdict based on an abstruse explanation. “It is a matter of common knowledge that many a murder has been committed without any known or prominent motive,” he said in his verdict. “The mere fact that the prosecution has failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.”

The purpose of a trial is to examine the fairness of an investigation or allegation. Justice is blind in so far that it is blind to inequalities amongst those demanding it. It cannot be blind to a burning prejudice fuelled by media conjectures and lazy investigations. The court allowed the CBI to present as many as 40 witnesses, many of whom changed their statements along the way. The Talwars wanted to add another 14 witnesses to the prosecution’s list, including officers of the Noida Police and SP Arun Kumar, who led the first CBI investigation. In May, the CBI court denied them the permission to do so. Both the Allahabad High Court and the Supreme Court followed suit.

The Talwars asked for permission to produce 13 of their own defence witnesses and asked for access to key documents pertaining to their case. This included their own narco tests, to show that they were telling the truth about their version of events; and the narco tests of Krishna, Raj Kumar and Vijay Mandal, which would show how the second CBI team had failed to investigate that angle. They also wanted to access the call records of all three to corroborate this side, as well as forensic slides and post-mortem reports.

Senior prosecutor RK Saini argued against the production of prosecution or defence witnesses and access to further documents on the grounds that the Talwars were wasting the court’s time. In the end, only seven witnesses were allowed. An entire case, relying solely on presumptions, was built by the CBI, but the Talwars were not allowed to produce further witnesses or access relevant documents.

Shohini Ghosh, professor at Jamia Millia Islamia University, calls this a dark chapter of India’s legal history. “It has bought an absurd and fabricated narrative that the prosecution came up with,” she says. “It has not bothered to challenge the many loopholes in the prosecution’s story or paid attention to the legitimate questions raised by the defence counsel.” Ghosh also points out that the Talwars were not allowed to present their witnesses or evidence that could have helped establish their innocence.

“It would appear from the language of the verdict — the judge called them ’freaks of nature’ — that the judgment has emerged, not out of the merits of the case, but the slander and prejudice that surrounded it,” she adds.

In fact, the Aarushi-Hemraj murder trial has redefined prejudice. The bloodstained pillow case found in Krishna’s room that was sent for DNA tests revealed traces of Hemraj’s blood. No questions were raised as to what was it doing in Krishna’s room, even two weeks after the murder? The court accepted the CBI’s claim that the blood/DNA traces were from Hemraj’s pillow and that a typographical error in the DNA testing lab at the forensics lab in Hyderabad was to blame for the error.

The CBI did not ask which pillow case was smeared with Hemraj’s blood,” says Vandana Talwar. “It asked the Hyderabad lab if there had been an error. An unstamped letter with an illegible signature acknowledged it as a typo and replaced a clinching piece of evidence in favour of the Talwars.” Following the court’s verdict on 25 November, Dinesh and Vandana Talwar have been going around television studios crying themselves hoarse reiterating these points.

Earlier this year, TEHELKA had done a detailed story (Framed by Shoma Chaudhury) on the lapses in the CBI investigation and the prosecution’s case and offered a plausible counter-narrative:

“What if there had been outsiders in the house that night who did not need to force their way in; who had friendly entry. According to the CBI officer Arun Kumar’s press conference, Krishna, Raj Kumar and Vijay Mandal had admitted in their narco tests and confessions to the CBI that Hemraj had called them and they had gathered late that night in his room. Krishna (who had a recent grouse against the Talwars) came first and consumed alcohol, then Raj Kumar, then Mandal. They all consumed alcohol, discussed Aarushi, then entered her room. She tried to scream but was gagged and hit by a hard, blunt object. They then tried to abuse her, which led to a scuffle between them. After the scuffle, they went to the terrace and after a lot of struggle, Hemraj was killed. They locked the terrace, came back into Aarushi’s room (presumably to ensure she was dead) and fled. Narco tests and statements to police may not be legally admissible, but here are physical facts that supported this admission and made it a logical line of investigation. Three bottles were found in Hemraj’s room: one Sprite, one Kingfisher beer, and one Sula wine. (Hemraj himself was a teetotaller.) This certainly suggests he had two or more visitors that night. He used to have the keys to the entrance of the house, and his own room opened into the house. So a friendly entry was perfectly possible.”

During the narco tests, Krishna also named the specific Nepali songs he and the others had heard when they were in Hemraj’s room. The song list was confirmed by the CBI and independently by a journalist, who approached the Nepali radio station for the night’s song list. “Where is the logic here?” asks Vandana. “The closure report clearly stated that there were critical gaps in the circumstantial evidence, but the conviction has been given on this very point.” It is the same closure report where the CBI mentions that its case was not good enough to call the Talwars to trial that was used to adjudge them as guilty and sentence them to life imprisonment.

“The CBI could not join the dots and build a narrative strong enough but the judge thought it was enough for conviction and the prosecution had even asked for a death penalty. Rajesh and Nupur should have been told earlier that they would have to investigate the case themselves,” says Vandana.

There are many such questions that Vanadan has. “Why was the bloodstained pillow case ignored? On what basis did the CBI give a clean chit to Krishna and his friends?” she asks. Then she gives the answer herself. “The CBI had pre-decided who was to be convicted. The story has been changed to meet one end only: to nail Nupur and Rajesh.”

Is the story of the Talwars the darkest chapter in India’s legal history? We will perhaps never know.

(With inputs from Nupur Sonar)

ushinor@tehelka.com

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When The Police Was The Media’s Source

No one could miss the screaming headlines. They were in your face, television channels reconstructed the crime scene night after night on various shows, hypothesised the situation where Hemraj and Aarushi had a sexual affair, hungrily lapped up police versions and hunches only to put them out for public consumption. In many ways, the media drove the case against the Talwars.

Every new development in the case — fact or fiction — was prominently featured in newspapers and television. The media had an opinion and nobody could miss it. News had metamorphosed into views. Even if that meant the investigation was compromised.

The forensic analyst brought in to examine the crime scene said that it was violated because the media and the UP Police had walked all over it.

“It was a moral defeat for those who believe in the ethics of journalism,” says Shohini Ghosh, professor, AJK Mass Communication Research Centre, Jamia Millia Islamia University. “It is also a moral defeat for the public who have failed to demand high standards of journalism. Barring exceptions, the media went for sensation, not for facts. It privileged speculation over reporting. It was also plagued by a common problem that has now beset reporters on the crime beat. They do not challenge police versions, but are happy to reproduce it. This has turned the clock back on investigative journalism.”

In fact, this aspect of the media’s role closely resembles the police.

“The first press conference attributed motives of the crime in the beginning, though motives don’t have to be concluded until you clinch the evidence and even then, it is still too early because it is the prosecution stage,” says former IPS officer Kiran Bedi. “There was no need to overstate at that time. All they needed to say was that they were probing the forensics and until that is settled, we will not be able to establish anything, but we don’t think it is an impossible case. I think they attributed a lot of motives based on a preliminary feeling about it without any evidence. I think they made the gut feeling public. And the second press conference by the CBI was the closure report, which doesn’t have to be discussed publicly.”

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