The Allahabad High
Court, on October 12, 2017 ruled that in the murder of Aarushi Talwar, only daughter
of dentists Rajesh Talwar and Nupur Talwar, and their domestic help Hemraj, the
Central Bureau of Investigation (CBI) had “failed to prove its case against the
accused-appellants beyond all reasonable doubts” and that “the case against the
appellants (the Talwar couple), cannot be sustained”.
The two-member bench of Justice Bala Krishna Narayana and Justice Arvind Kumar Mishra, quoted section 106 of the Indian Evidence Act, commenting that while the Act “lays down only this much that if a fact is in the “special knowledge of a person” and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on such person in whose special knowledge it is. But it goes on to say that “before Section 106 of the Evidence Act could be applied in the instant case (against the Talwars) it was incumbent upon the prosecution to establish by cogent and reliable evidence inter alia that the appellants were awake in the night of the occurrence (of the two murders)”.
This basically means
that the prosecution agency, the CBI, could not prove that the parents were
awake on the night of the murders and because of that had “special knowledge”
of the case. The CBI had claimed, and had got a verdict in its favour from the
special CBI court in Ghaziabad, that the parents had committed the murders of
their daughter and the domestic help Hemraj Banjade.
According to the
CBI the parents were awake on the night
of the murders—the night of May 15, 2008. It is also apparent in the high court
judgment that the factors that point towards the Talwars’ involvement, including changing statements
and concealing information apart from alleged “dressing up” of the crime scene,
have not been appreciated. The wheels have been taken off the CBI’s case in as
much that key prosecution witnesses have been found “unreliable,” not least of
all Talwars’ maid Bharti Mandal.Arguably, this raises questions about the
soundness of the judgment. More so because the main points of Mandal’s
testimony have remained consistent for almost ten years now For journalists who
met her the first day, her statements in the court stand out.
According to the high
court, the CBI needs to first prove first that the parents were awake on the
night of the murders before they can be accused of the crime. A motive then
becomes paramount, and it is the CBI’s case that Aarushi and Hemraj were found
in the middle of a sexual encounter, which drove the parents to murder. But
this is also where this highly publicised case hit a roadblock ever since the
crime took place. It has travelled through the hands of Noida police to the
first CBI team which tried to prove the murderers were the servants—Krishna
Thadarai, compounder at the clinic of Dr Rajesh Talwar; and Raj Kumar, domestic
help at the Durranis, family friends of the Talwars; and Vijay Mandal, the
domestic help of a Talwar neighbour in Jalvayu Vihar, Sector-25, Noida. It then
went into the hands of the second CBI team which again pointed towards the
parents. This team, after an initial closure report citing lack of prosecutable
evidence, went on to prove before the Ghaziabad court that the parents were the
murderers.
In the absence of
motive and a clear narrative of events, however, it depended almost entirely on
circumstantial evidence, some of which was inadmissible in court. The CBI laid
the burden of proof on the parents as they had “special knowledge” and the
lower court accepted it.
The verdict, however, has taken pains to hint that there was evidence against the servants the CBI did not look through or ignored, manipulated, and instead had a tilt towards the parents to hide its own failures.
It failed to convince
the high court, and this was in many ways
bound to happen. The law allows for role-reversal on proof only when the
most plausible sequence of events is proved
“beyond reasonable doubt”. Consequently, this case remained an enigma
for investigators, media and the public since no thread seemed to hold when
stretched under the scrutiny of law.
The verdict, however,
has taken pains to hint that there was evidence against the servants the CBI
did not look through or ignored, manipulated, and instead had a tilt towards
the parents to hide its own failures.
The appeal before the
high court was specific—whether there was enough evidence to convict the Talwars.
The court didn’t think so, and ordered their acquittal. In doing so, the judges
exceeded their mandate by unnecessarily pointing to the servants’ “possible”
involvement in the murders. This appeal was about the parents and not the
servants. Some sections of the media have already come out with definite
answers on the servants’ culpability.
Anyone who has followed
this case would find it difficult to remain unaffected by the media coverage. A
book and some films have also influenced public opinion. One expects, however,
that the judiciary would resist their trappings and rely, rather, on facts. At
the outset the judgment buys into the idea that the Talwars were doting
parents. The notion challenges our mindsets, but abuse and homicide is common
behind closed doors of our homes. On page 3, the judgment says, “…on account of
the fact that mother of Dr. Rajesh Talwar had expired, in order to give great
love and affection to the newly born Aarushi, they decided to buy a flat
bearing Flat No. L-32 in Jalvayu Vihar, Noida, the primary consideration being
its close vicinity to the flat in which Aarushi’s grandparents and Dr. Nupur
Talwar’s parents Group Captain B.G. Chitnis (Retd.) and Smt. Lata Chitnis were
residing which would facilitate a better upbringing of (Aarushi)…”
One must applaud the
parental instincts of the judges, if not those of anybody else’s here.
Nupur Talwar’s
statements to various investigating agencies have been inconsistent. On page 7,
however, the judges accepted one of the most contentious and unclear issues as
a given. While saying, “…in Aarushi’s bedroom appellant Dr. Nupur Talwar went
to Aarushi’s room to switch on the router leaving the key of door of Aarushi’s
bedroom in the lock”, they have established as fact that Nupur left the keys in
the slot, when as per other witnesses both Rajesh and Nupur testified to the
contrary in statements to the Noida police during initial investigations. The
Talwars though deny having made any such statement.
This detail is
important because Aarushi’s bedroom door had an auto-lock that could only be
opened from the inside or with a key from the outside. In their initial
statements to Noida police, both Rajesh and Nupur Talwar said that they had the
keys to Aarushi’s room. Rajesh said that someone may have picked up the
keys from their room as they slept. So an outsider not only entered the house but
also took the keys to Aarushi’s room from the parents’ bedside or perhaps
underneath their pillows. This would mean the parents were so fast asleep that
they could not even sense someone opening their door and picking up the keys
from their bedside.
Later, Nupur and
Rajesh made a “material addition” in their statements. For instance, Nupur said
she may have left the key in the slot after she went to Aarushi’s room to
switch on the internet router. This door could not be opened from outside
without a key. In the initial investigations by Noida police Rajesh had said
that the keys to Aarushi’s room were in his room, which someone may have picked
up, but changed this detail later. The judges have accepted their arguments as
a fact, whilst at best it was a contentious detail. The prosecution’s case was
that the Talwars were lying about their possession of Aarushi’s room keys as
was evident from their inconsistent statements. The High Court judgment goes on
to rule:
“Even (if) the aforesaid circumstance, for the
sake of arguments, is accepted to be true, the same is not conclusive proof of
the fact that in the intervening night of 15/16 .5. 2008 no one else apart from
Talwars could have accessed Aarushi’s bedroom.”
Yes indeed it is not
conclusive proof. Aarushi’s room could also be accessed through a common
bathroom or she could have let her killers in. Yet the fact is that the key
being left in the slot is not a “matter of fact” (which the judges have
seemingly determined as a given).
One of the most crucial
testimonies is that of the Talwars’ maid Bharti Mandal. The prosecution relied
on it to establish that when Bharti rang the door-bell at 6 a.m. on May 16 the
house was locked from inside. The main entrance had an arrangement of three
doors. The first was an outer mesh door after which there was a small passage.
Next was a middle mesh grill door and the third, a wooden door; the last two
were in the same frame. In the passage between the outer and the middle door,
there is a door into the room of Hemraj. There is another way into Hemraj’s
room that opens in the living-cum-dining area of the apartment.
When Bharti arrives,
she rings the doorbell thrice. According to her testimony, she placed her hand
on the outer door but it did not open. After a while Nupur appears and opens
the wooden door. She asks Bharti where Hemraj is and on receiving a reply in
the negative says that he must have gone to ‘fetch milk from the Mother Dairy
and that Bharti should wait outside until he returns.’ Bharti asks Nupur Talwar
if she does not have the keys to the house?
Nupur gets the keys,
interestingly, from Hemraj’s room, according to the Talwars own statement. She
asks Bharti to go downstairs so that she could throw the keys from the balcony.
This key is to the middle door, not the outer mesh door. Now this is a two-way
lock that can be opened both from the inside and outside. The prosecution’s
case is that Nupur could have easily tried to open the lock from inside and the
act of sending the maid downstairs was to buy time. Buy time for what exactly?
To open the outer door that was latched from inside.
However, the defence claims that the fact that Bharti is asking for the keys to the middle door implies that she had already opened the outer door and walked through the passage. This detail represents another instance of a shifting of stance by the defence. Nupur had stated earlier that Bharti was indeed standing outside the outer mesh door when she spoke with her.
The defence vehemently
argued in and outside court that when Bharti said she placed her hand on the
outer door and it did not open, it was because she was tutored by the CBI
prosecutor to say so. R. K. Saini, public prosecutor in this case explains:
“Before a witness appears in court, it is the right and the duty of a
prosecutor to know and understand what the witness is going to say. That is
what happened on the day of her testimony. How does that become tutoring? No
one from the CBI ever visited her house before she came to the court. If I
tutor a witness, won’t I tutor her much before?”
Hindi—the language in which her testimony is recorded in the trial court —is not Bharti’s first language. Neither is English—the language in which the appellate court examined her testimony. Is it possible that the meaning of what she said was lost in translation?
Bharti has steadfastly maintained that she was
not a tutored witness and that she was only asked to repeat the sequence of
events in as much detail as she could. The defence in Bharti’s
cross-examination elicited a response from her that she was saying ‘what she
was explained’ and presented it as a revelation that discredits her
testimony. Or was it just a question of semantics? It is noteworthy that this response of Bharti
was not to the specific question of whether she had indeed placed her hand on
the outer mesh door or not but a part of routine introductory questions that
were posed to her.
Hindi—the language in
which her testimony is recorded in the trial court —is not Bharti’s first
language. Neither is English—the language in which the appellate court examined
her testimony. Is it possible that the meaning of what she said was lost in
translation? Speaking of credibility, Bharti’s version of events has been
consistent for nearly 10 years now. The details of her testimony in trial court
match with what Bharti had told journalists on the morning of May 16, 2008,
when police had not recorded her first statement and the murders hadn’t become
the phenomenon it did.
Coming back to
Bharti’s testimony, the second half is even more insightful. As per Nupur’s
instructions, Bharti went downstairs. Nupur tells her from the balcony that the
middle mesh grill door is not locked but latched from outside. Again Nupur has
denied making this statement in court. Yet again this shift in stance is caught
out.
Bharti asks Nupur to throw down the key anyway. When Bharti comes back up, she puts her hand on the outer-mesh door. This time it opens. She walks across the passage, unlatches the inner/middle grille-door and walks into the house. There she finds Nupur and Rajesh Talwar crying in the living room.
This is where things
get more interesting. How much time would it have taken for Bharti to come from
the ground floor up to the second floor apartment of the Talwars? Two, maybe
three minutes. Within these 2-3 minutes, the Talwars discover the body of their
daughter for the first time. They’re able to process the shock. They cover it
with a white sheet or flannel blanket (crime scene photos show Aarushi’s body
covered with a white sheet while the Talwars maintain that it was covered with
a flannel blanket). They exit her room and are found by Bharti crying in the
living room. They are also able to determine that Hemraj murdered their
daughter and ran away. Nupur shows Bharti
Aarushi’s body saying, ‘Dekho Hemraj kya karke gaya hai (Look
what Hemraj has done and gone),” all in a matter of 2-3 minutes. The
prosecution sees this behaviour as unnatural, rehearsed. And this is where they
argued for the applicability of Section 106—that the Talwars had foreknowledge
of Aarushi’s death before Bharti rang the door bell. What happened was in their
“special knowledge” and the onus was on them to explain what happened. The
defence argued that different people behave differently under different
circumstances. The judges concurred.
Why did they overlook
this sequence of events? The judges have erroneously said that within hours of
the discovery of Aarushi’s body the flat was swarming with people (including
the press). This has been repeated by the defence counsel, as also the author
Avirook Sen. Many journalists have put it on record that no outsider (i.e. the
press) entered the house on May 16. People who did enter had permission from
family members, except the police who too were pressured to go find Hemraj
instead of “wasting time” there. There were many people in the house the next
day, on May 17, by which time the alleged dressing up of the crime scene and
the manipulations had already been done. On May 16 only the family
and friends of the Talwars and the police had access to the flat—not the media.
The judgement is also
found wanting/confusing on some factual aspects. For instance, the judges note
that:
“The Senior most
police officer on the crime scene Mahesh Kumar Mishra S.P. (City) asked the
constable to break the lock but the lock could not be broken as they “could not
find aloxite”. However, as per Noida police records and Mahesh Mishra’s own
testimony in the trial court, on May 16 he had not asked that the lock be
broken. He had instead said the lock be removed along with the latch since it
was important evidence; he mentioned that he could see blood on the lock and
the door, and that he had asked for the lock to be removed along with the latch
with the help of a mechanic. The judges said later, commenting on testimony of
the Noida police’s initial investigating officer (IO) Datta Ram Naunaria, that
nobody stopped him from breaking the lock, without taking into account that
Rajesh did discourage the breaking of the lock by pressuring the police to go
find Hemraj instead of wasting time on lock and key. Perhaps a rushed
and unrepresentative conclusion has been drawn by the judges in observing that
not breaking the lock was not just because of negligence by Naunaria, but also
on account of stalling by the Talwars.
Later mentioning that
Rajesh climbed up to the terrace after being asked to identify the body, which
was heavily swollen, the judges say he was shocked and called Nupur to ask
about Hemraj’s T-shirt and confirmed to the police that the body was that of
Hemraj after looking at his hair. Also, the judgment ignores the fact that many
witnesses, including policemen, had testified before the CBI trial court in
Ghaziabad that Rajesh Talwar was reluctant or refused to identify the body .
The judges, however, discount Mishra’s testimony on the ground that he did not
mention this in his statement to the IO of the CBI, Vijay Kumar.
Two things warrant a
mention here: One, what an IO records or not as part of a 161 CrPC statement
has little or no value compared to what the witness himself has said under oath
in court. Also a lot of IO records are
based on his/her capability and skill to ask relevant probing questions from
the witness. Secondly, IO Vijay Kumar was part of Arun Kumar’s team which was
quite motivated in trying to prove that the servants, including Krishna and Raj
Kumar were responsible for the murders.
Also, the judges do
not question the veracity of Rajesh’s statements on the sequence of events on
the morning of May 16 wherein he details the conversations and sequence of
events between Nupur and Bharti Mandal, having already said that he was
sleeping when Mandal rang the doorbell! Also, Rajesh’s statement that the
prosecution witness Sanjay Chauhan did not visit the house has been accepted at
face value. If one believes the place was “swarming with people” could he
really have deciphered who was Sanjay Chauhan and whether or not he visited the
house?
It seems that the
judges give undue weightage and space to Nupur and Rajesh Talwars’ statements,
a courtesy not extended to any of the other witnesses, including the chief
investigator AGL Kaul. In fact, there has been a determined attempt to discard
his findings and paint him as someone who had an agenda against the parents.
The judges say that
AGL Kaul “surreptitiously” got the statements of witnesses Rajeev Kumar
Varshney and Rohit Kochar recorded under the section 164 of the CrPC before the
Metropolitan Magistrate at the Karkardooma courts in Delhi and not before the
CJM, Ghaziabad. The use of the word “surreptitious” is unwarranted since it is
common practice to record witnesses’ statements keeping in mind the criticality
of the testimony and convenience of the witnesses (like distance involved) and
is acceptable across the courts in the country.
While examining the
statements of Varshney and Kochar, both dentists and friends of the Talwars,
the judges ignored important sequence of events on the morning of May 16 when
police asked for the keys to the terrace of the Talwars but were not provided.
As per his testimony,
when Varshney reached the building around 9 a.m. on May 16, he accidentally
climbed up to the terrace since he did not know the house number. He saw the
door locked and also noticed blood spots on the lock handle as well as on the
stairs and the parapet. He came downstairs, went inside the house where guests
were present and told Rajesh about the blood spots. He says he also showed the
spots to Kochar and a policeman who visited the house a little later. He
clearly testifies that Rajesh came out of the house and climbed towards the
terrace, but then turned back and went into the house. The key to the terrace
was never handed over to police and it was later said the key was not
available. This conduct is perceived as suspicious and puts Rajesh Talwar in
the category of a person with “special knowledge” about the crime and its
details – that behind that locked door, Hemraj’s body was lying on the terrace.
The defence counsel, during Varshney’s cross-examination, made a case that the
witness was not absolutely sure that it was indeed blood that he saw or did his
eyes and mind play a trick on him? This was sufficient for judges in Allahabad
to discount Varsheny’s testimony.
In his testimony
Kochar also mentions that when Varshney told him about the blood spots he too
went upstairs and noticed the blood on the handle of the lock as well as the
stairs. He also mentions that there were spots of footsteps red in colour and
it seemed that there had been attempts to clean them. He says that when a
policeman came to the spot Varshney and he asked for the lock to be broken
open.
But when asked for the
keys to the terrace door Rajesh came out, climbed a few stairs and then went
back in, not to come back for quite long after that. Thereafter, Aarushi’s body
had come back after the postmortem, he goes on to say. This testimony too
indicates that Rajesh had “special knowledge” about the events but the judges
ignored it.
Further on, the judges
rely on a defence witness to return the following finding: “DW4 R.K. Sharma
categorically denied having noticed any bloodstains or marks of wiped out blood
or dragging on the staircase of the Talwars’ flat leading to the terrace, its
railing or the landing or having noticed any bloodstains or blood marks or sign
of marks of dragging.”
Defence witness 4 R.
K. Sharma was a forensic expert. He was called upon to make a case, among other
things, that a golf stick could not have been a murder weapon. He never visited
the crime scene on May 16 or 17 2008. His statement was never recorded by any
investigator. Unlike Dr. Rajiv Varshney and Dr Rohit Kochar, he was not an
eyewitness. He testified in this matter for the first time on June 25, 2013. Then how can his statement be
used to establish that there weren’t any bloodstains or wiped blood marks near
the terrace door, on the stairs, etc. on May 16, 2008. Clearly there’s
something amiss here—maybe the judges wanted to cite DW-5 Vikas Sethi and not
R. K Sharma. Vikas Sethi is Talwars’ administrative assistant at their South
Delhi clinic. He was one of three men who had dumped Aarushi’s mattress on the
neighbor’s terrace at around 4 p.m. in the afternoon of May 16, while Hemraj’s
body lay on the adjacent terrace.
It is also important
to take into account the testimony of Puneesh Tandon, a neighbour who stayed on
the floor below. He states that when he reached the Talwar house after hearing
sounds of crying he saw Nupur sitting next to Aarushi’s body while Rajesh got
up from the outer room and sat near Aarushi’s feet. When he asked Nupur’s
parents if the police had been informed they said the landline was not working
and so they would go to their house, first inform their son in Dubai about the
murder and then call the police. Wasn’t informing the police a priority?
Investigators feel that this oversight was deliberate and in this time, evidence
was compromised.
Tandon also says he
returned home and called the security guard asking him to call the police
saying there had been a murder in flat L-32. He also testified that the terrace
door of L-32 was always only latched or open and that he had never seen a lock
on it, which again raises doubts why an outsider who committed the murders
would take pains to put a lock on the
door and hide Hemraj’s body.
Similarly, the judges
discard the testimony of Dr. Sunil Kumar Dohre. Dohre is an interesting witness
who has testified in court that he was pressurised by the Talwars during the
post-mortem. The jury is still out on this claim. While calling his statements
“dramatically opposite” to what he said earlier, the judges overlook one
detail—that he made these additions when AGL Kaul questioned him. He was either
not questioned or was purposely silent on those aspects earlier and the trial
court admonished and passed strictures against this doctor. “He also stated
that the whitish discharge was present in the vaginal cavity (of Aarushi)
whereas in the postmortem report he had mentioned whitish discharge in the
column of “genitalia’,” the judges assert, which does not seem to make any
sense. They should have explained what the difference between the “vaginal
cavity” and “genitalia” really is if this was to be a basis for rejection of
Dohre’s testimony. Also, it is important to note here that if this aspect were
to be rejected now, it would also be enough grounds to discard the defence
theory that the servants sexually assaulted Aarushi on the night.
The Talwars’ driver,
Umesh Sharma, emerges from the Allahabad judgment as a reliable witness.
Incidentally, he was declared hostile by the prosecution and regularly changed
statements unlike Bharti Mandal. In court, Umesh testified that he came to the
Talwars’ house to hand over the car keys on May 15, 2008 at 8.45 p.m. whereas
in his initial statements he said that he visited the house around 9.30 p.m.
This was reported by the media too and is important as Aarushi’s phone had been
switched off around 9.10 p.m. and Umesh had initially said that he sensed that
there had been an altercation at home.
The judges say that
“from the evidence of PW-15 Umesh Sharma, it is fully proved that the second
door (F) of Hemraj’s room which was near the main door of the appellants’ flat
remained closed because in front of that door of Hemraj’s room a refrigerator
had been put and the door of Hemraj’s room which opened in the drawing room of
the flat alone was used by him for ingress and egress into the flat.” The
attempt being made here is to “establish” that Nupur Talwar could not have
walked through this door (F) from Hemraj’s room to latch the middle door of the
house from outside while also opening the outer door for Bharti Mandal that was
probably locked from inside.
Whether Nupur Talwar
did this or not is in her “special knowledge,” but surely Umesh’s testimony
can’t be used as the “gold standard” to establish this. The judges cite his
testimony to say that the defence proposition is “fully proven”. Incidentally Nupur Talwar in her statements
under section 313 of the CrPC said there was a big table and not a fridge
blocking the said door, which means either the driver or the parents are
untruthful or at least inaccurate. How could the judges miss this point? This
alone should have been enough to discredit the proposition that this door
couldn’t be used for ingress and egress! Moreover a fridge or a table, whatever
it was–are eminently movable or maybe there’s something that we don’t know and
the Talwars do.
The crime scene images
of Hemraj’s room tell a story in themselves—no fridge or a table is blocking
the said entrance. Another shocker is that the judges accepted Sharma’s
statement that the outer door used to open with some effort and with a noise,
regarding which he says “yeh darwaza jhatke ke saath aur awaaz ke saath khulta
thha” which is an attempt to counter Bharti Mandal’s statement that the door
did not open when she put her hand on it. The judges have also relied on a
statement by Shashi Devi, who reportedly used to iron clothes at a makeshift
stall downstairs and would visit the house to collect clothes to be ironed,
that the outer door would stay jammed. She says, “baahri darwaza chipka rehta
thha”. The judges relied on this statement purely based on the defence’s arguments—Shashi
Devi was never produced in court. In her 161 CrPC statement to the
investigators, Shashi says, “Baahri darwaza chipka rehta thha (Outer door used
to stick)”. Shashi Devi was never
summoned as a witness in court and the judges have relied on her 161 CrPC
statement while they have not extended the same courtesy to Bharti Mandal’s 161
CrPC statement. Yes, different people react differently to different
circumstances but why different benchmarks for different witnesses? “Darwaaza
chipka rehta tha” –Umesh suggests this, Shashi Devi says this (outside court of
course), Rajesh and Nupur Talwar too use exactly the same phrase. Sounds
synchronised to the extent of “tutoring.”
Most importantly,
archive videos accessed by Fountain Ink from April 16 and 17, 2008,
clearly show that the door opened and closed effortlessly, without noise or
getting jammed or sticking to the frame. The door hits the frame and rebounds
back. Seemingly the point didn’t hit home for the judges.
The judges say on page
7 that the “ACs (in the house) were a bit noisy.” The Talwars heard the
doorbell in the morning on the second instance as per the judgment, and so it
is a matter of conjecture how noisy the ACs actually were and cannot be
determined with any certainty. Also, how noisy could the split AC in Aarushi’s
room have been? How can these facts be determined?
Further, pages 142 and
143 of the judgement says:
“The explanation that
the appellants knew nothing as they were sleeping cannot be termed as no
explanation and/or false explanation as from the evidence adduced by the CBI
itself it was proved that if someone was sleeping in the Talwars’ bedroom with
the air-conditioners on which were a bit noisy it was not possible for them to
have heard the sounds of moving foot steps, closing and opening of doors inside
the Talwars’ flat.”
So what “evidence” was
“adduced” by CBI to ascertain that if the Talwars were sleeping that night,
they could not hear what was happening to their daughter in the next room and
in the rest of their 1300sq ft apartment. The reference here is to a so-called
“scientific” sound simulation test conducted in the night under the watch of
then joint director of CBI Arun Kumar. He had this test done but it was never
relied on by the prosecution because it is highly dubious and suspect. It has
no scientific basis—we all have different hearing capacities, our ears are
sensitive to different frequencies. How can anyone truly simulate the acoustic
environment of what actually happened that night. It was all guesswork and
“pseudo-science”. Here’s what actually
was done in the so-called sound test—the ACs were turned on and one
individual was made to walk in the house and open Aarushi’s room’s door. Based
on the Talwars own plea that they had heard a sound like a dropping of the fork
in the night, a fork was then faithfully dropped in the dining room. This
formed the basis of a hypothesis that the Talwars in their sleep would not have
heard what happened in their house. The sound of a fork falling on the floor,
that too in the dining room, is incomparable to the noise generated from the
assaults on the victims. Also, going by defence and Arun Kumar’s theory, the
servants were having a party in Hemraj’s room; why weren’t sounds of drunken
revelry, of arguments and Nepalese songs supposedly playing on television also
simulated in this test? All of this makes this sound test highly suspect.
The ACs were turned on and one individual was made to walk in the house and open Aarushi’s room’s door. Based on the Talwars own plea that they had heard a sound like a dropping of the fork in the night, a fork was then faithfully dropped in the dining room. This formed the basis of a hypothesis that the Talwars in their sleep would not have heard what happened in their house.
R. K. Saini, the
public prosecutor, further elaborates: “Talwars were the masters of the house.
They could have done what they wanted to the AC, made it noisy, made it bit
noisy, made it very noisy. The incident happened on the night of May 15. This sound test was conducted 26 days
later on June 10. Talwars had ample opportunity to do what they wanted to the
AC. That is why this test had no evidentiary value. The hon’ble judges in fact
rejected the report regarding internet router activity in the night that
actually established that the appellants were awake in the night. This internet
log report was rejected on a technicality.”
Having questioned or
rejected key witnesses, ignoring forensic findings, in the concluding section
of the judgement, the judges reintroduce the scenario of alternative killers.
Krishna, Talwars’
compounder, is brought back into the mix. Contrary to forensic findings,
earlier rulings of Allahabad High Court and the Apex Court itself, the judges
cite so-called “clinching evidence” that tiny specks of Hemraj’s blood reached
Krishna’s purple pillow cover. Looking at the gruesome nature of the murders,
this blood spot is expected to be big enough, but the judges seemed to have
missed this point. So let’s look at this “clinching evidence”. The judgement
cites a report by CDFD Hyderabad from November 2008. The defence had time and
again brought this report up for legal scrutiny before the trial and during the
trial. According to the clarification submitted by CDFD on this report, the
finding that DNA of Hemraj was found on Krishna’s pillow was on account of
coding and a typographical error after exhibits were sent from CFSL Delhi to
CDFD Hyderabad. The finding of both the labs was consistent—DNA of Hemraj was
recovered from Hemraj’s pillow and no DNA was found on Krishna’s pillow cover.
That it was a typographical error or not was subjected to intense review
back in 2011 by the Allahabad High Court itself. Surprisingly, Justice B. K.
Narayana himself states in his revision order of March 2011:
Talwars have maintained that they received this report along with the annexures of the CBI closure report. It must be kept in mind that the CBI, in its closure report filed on December 29, 2010, had not attached this report. Talwars were summoned as accused in February 2011. They challenged the summoning order and the trial did not start until May 2012. Charges were not framed until then. Proceedings under Section 207 of CrPC had not even and begun this report was not supplied to them until May 2012. Then how did the Talwars get hold of this report after the closure report was filed in December 2010? They even attached a copy of this report as a supplementary affadavit in February 2011 in the Allahabad High Court. How did they gain access to information regarding this supposed clinching evidence against Krishna? Was someone on the inside helping them? The judgement is quite on this crucial aspect?
The CBI’s case is not without fault and gaps. Neither is the Allahabad High Court verdict. Hopefully, the Supreme Court will do justice to both Aarushi and Hemraj.
(This article by Arpit Parashar has been published posthumously.)
is a contributing writer at Fountain Ink.
is a filmmaker and writer based in Delhi.
