Murder mystery

The Allahabad High Court’s acquittal of Rajesh Talwar and Nupur Talwar nearly four years after their imprisonment for the murder of their only daughter and their domestic worker raises disturbing questions about the quality of criminal investigation and trial in the case.

Published : Oct 25, 2017 12:30 IST

Rajesh and Nupur Talwar after their release from Dasna Jail in Ghaziabad on October 16.

Rajesh and Nupur Talwar after their release from Dasna Jail in Ghaziabad on October 16.

RAJESH and Nupur Talwar, the dentist couple who in 2013 were sentenced by a trial court to rigorous imprisonment for the murder of their only daughter, the teenaged Aarushi, and the family’s domestic worker, Hemraj, walked out free from Dasna Jail in Ghaziabad on October 16. The Allahabad High Court on October 12 allowed their appeals against the trial court verdict and acquitted both.

The prosecution, the Central Bureau of Investigation (CBI), had treated the murder as an honour crime and charged the Talwars for killing Aarushi and Hemraj, allegedly after witnessing them indulging in sexual intercourse in Aarushi’s bedroom in the intervening night of May 15-16, 2008.

The Allahabad High Court bench of Justices Bala Krishna Narayana and Arvind Kumar Mishra found the CBI’s theory absurd and weak and the trial court’s reasoning full of erroneous assumptions. The High Court found clinching evidence pointing to the presence of outsiders in the Talwars’ residence on the fateful night.

Censure for trial court judge It indicted the trial court judge in Ghaziabad, Shyam Lal, for the style and approach of his judgment. Shyam Lal had delivered the judgment in the case shortly before his retirement. “Like a film director, the trial judge has tried to thrust coherence amongst facts inalienably scattered here and there, but not giving any coherence to the idea as to what in fact happened,” the High Court observed.

As the case against the Talwars relied only on circumstantial evidence, the motive was very significant. The trial court accepted the CBI’s theory that catching Hemraj in an act of sexual intercourse with Aarushi in her bedroom provided grave and sudden provocation to her parents, who murdered both by assaulting them with a golf club and slitting their throats with a surgical scalpel.

The CBI’s case was based on the finding of Dr Mohinder Singh Dahiya, the then Deputy Director, Institute of Forensic Science, Gujarat Forensic Sciences University, Gandhinagar, that Hemraj’s blood was found on the pillow in Aarushi’s bedroom.

The report of the Central Forensic Science Laboratory (CFSL), New Delhi, dated June 19, 2008, however, stated that the blood and DNA of Aarushi alone were found on the bed sheet, pillow, pillowcase and and mattresses seized from Aarushi’s bedroom on May 16, 2008; Hemraj’s blood and DNA were not detected on these.

This was affirmed by Dr B.K. Mohapatra, DNA expert of CFSL, New Delhi. This was corroborated from the evidence of Suresh Kumar Singla, serologist, CFSL, New Delhi, who was examined during the trial. Singla also testified before the trial court that Aarushi’s blood was not found on Hemraj’s clothes, and vice versa.

A.G.L. Kaul, the CBI officer who submitted closure report on December 29, 2010, clearly stated in paragraph 25 of the report that Hemraj’s blood was not found on Aarushi’s bed sheet and pillow, and there was no evidence on record to prove that Hemraj was killed in her room. The Ghaziabad Magistrate Preeti Singh, however, rejected the closure report and directed the CBI to proceed with the trial. The Talwars themselves challenged the closure report, though ironically its rejection led to their subsequent conviction and imprisonment for nearly four years.

Aarushi’s post-mortem report, prepared by Dr Sunil Kumar Dohre, did not indicate any kind of sexual assault. Yet, Dr Dohre deposed before the trial court that Aarushi’s vaginal cavity contained a white discharge, and that the cavity was open and the vaginal canal was visible on account of manipulation/fiddling with the vaginal cavity either prior to or during the stage of rigor mortis.

Dr Dohre later clarified that what he told the court—as against what he recorded in the post-mortem report—was based on his subjective findings.

The High Court held that Dr Dohre’s subjective findings had no place in forensic science and no credibility could be attached to his evidence suggesting sexual intercourse or any fiddling with the victim’s vaginal cavity after the murder.

The deposition of Dr Naresh Raj, who conducted post-mortem on Hemraj’s body, also supported the prosecution’s case. He stated that Hemraj’s penis showed swelling, either because he was in the midst of sexual intercourse or because he was about to indulge in it immediately before being murdered. This, he said, was his inference on the basis of his own marital experience.

Hemraj’s body was discovered at about 10 a.m. on May 17, 2008, on the terrace of Rajesh Talwar’s residence, where it had lain for over 24 hours, exposed to the scorching May sun. The post-mortem was performed at 9:30 p.m. on the night of May 17.

The High Court concluded that the swelling was the result of the elapsing of 36 hours after Hemraj’s death before the post-mortem was performed and had nothing to do with sexual intercourse.

Dr Urmila Sharma, a renowned gynaecologist, deposed before the trial court that the presence of a white discharge noticed in Aarushi’s vaginal cavity was normal. She explained that biological discharge starts in every girl at 13-14 years when hormonal changes start taking place in the ovaries. She told the trial court that the vaginal orifice could not have been found open in a teenaged girl like Aarushi. She explained that the vaginal orifice is found open only in women who have given birth to several children, a condition that is described in medical terminology as “prolapsed”. She also said in the trial court that the vaginal cavity would not be visible after the girl’s death unless an instrument was forcefully inserted.

The CBI cross-examined Dr Urmila Sharma at great length but could not extract anything from her that supported Dr Dohre’s theory or suggested that she was on unsure ground. The High Court demolished the “last seen” theory, which was used to convict the Talwars. The trial court relied on the Talwars’ driver Umesh Sharma’s deposition that on May 15, 2008, when he went to the Talwars’ flat to hand over the car keys around 8:45 p.m., he saw the four of them, Rajesh, Nupur, Aarushi and Hemraj together. The High Court held that it could not be presumed that no one visited the flat after Sharma left.

The CBI used Talwars’ part-time domestic worker Bharti Mandal’s testimony to establish that the flat was locked from inside when she arrived on the morning of May 16 and concluded that there was no possibility of any outsider having accessed the flat during the night.

The High Court, which found Bharti Mandal to be a tutored witness, said that her testimony was insufficient for establishing that the flat was locked from inside.

CBI theory rebutted The High Court rebutted the CBI’s theory that Internet activity in the flat on that fateful night showed the Talwars were awake through the night. The Talwars claimed they had no idea of what was happening because they were sleeping with their noisy air conditioner on. The evidence adduced by the CBI proved that it was not possible for the Talwars to have heard the sounds of footsteps or the closing and opening of doors, the High Court said.

The prosecution alleged that the Talwar couple had wrapped Hemraj’s body in a bed sheet, dragged it over the stairs to the terrace and then wiped out bloodstains from the stairs.

The High Court, however, pointed out that Hemraj’s blood had not been found either in Aarushi’s room or anywhere else in the flat or in the outer gallery of the staircase.

The High Court did not agree with the prosecution’s contention that the injuries caused to Hemraj by the blunt weapon would not have led to any bleeding or that maximum blood loss suffered by him was due to the slitting of his throat on the terrace. The CBI alleged that when Rajesh Talwar was told of the bloodstains on the door and the lock of the terrace on May 16, 2008, he climbed up the stairs, immediately returned to his flat and failed to provide the keys to the terrace lock though he was asked.

This, according to the CBI, showed that he wanted to divert the police’s attention so that Hemraj’s body was not discovered.

The High Court, however, held that the prosecution failed to prove by any cogent evidence that the Talwars refused to make the keys available to the Investigating Officer, Data Ram Naunaria. It was the officer’s negligence, and not the non-availability of the key, that led to the terrace not being checked for hours, the High Court said.

There was no evidence that either Rajesh or Nupur or any of their relatives tried to prevent the police from breaking open the lock on May 16. The High Court also found the theory that the Talwars had hidden the dead body of Hemraj on the terrace in order to dispose of it upon getting a suitable opportunity later patently absurd.

That there was no blood on the toys on Aarushi’s bed could not be construed as conclusively pointing to the dressing up of the crime scene by the Talwars, the court said. It added that there were minimal creases on Aarushi’s bed sheet because she was immobilised by the attack, which left no scope for any scuffle or resistance, and not because the crime scene was dressed up. The High Court found that the prosecution had failed to pick up the fingerprints that must have been left by those who put a cooler panel on Hemraj’s body and compare them with those of the Talwars.

The record shows that Aarushi’s room was cleaned in the Talwars’ absence, after they left for the crematorium to perform the last rites of their daughter, by Umesh Sharma in the presence of a large number of policemen. The High court found no evidence to show that Sharma cleaned the room at the Talwars’ behest.

The High Court disagreed with the prosecution’s theory that the Talwars’ conduct following their daughter’s murder was not “normal” and that this indicated guilt. It observed that people react differently to any given situation.

The High Court also held that the prosecution was not able to prove that a golf club and a surgical scalpel were the eapons used by the Talwars to commit the double murder.

More importantly, the High Court found that the prosecution was unable to prove by any cogent and reliable evidence that there was any typographical error in the description of pillow and pillow cover seized from Hemraj’s room and a purple pillow seized from the room of Krishna (Rajesh Talwar’s assistant at his dental clinic) in the report of the Centre for DNA Fingerprinting and Diagnosis (CDFD), Hyderabad. The report indicated that Hemraj’s blood was found on the purple pillow cover seized from Krishna’s room. The CDFD’s clarificatory letter, issued after a lapse of almost three years from the date of submission of its report, that it was a typographical error, appeared to be a procured document, the High Court held.

“It is proved from the evidence of PW25 SPR Prasad that the CDFD Hyderabad before preparing the report dated 6.11.2008 Ext. Ka51, he had got the two exhibits purple colour pillow cover seized from the room of Krishna and pillow along with pillow cover seized from the room of Hemraj examined by experts, who had sat down together and prepared the final report and as such there was no possibility of any error, as claimed by the prosecution having crept in the description of the two most material exhibits of the case,” the High Court concluded.

The High Court took note of the fact that during the investigation, the CBI arrested and interrogated Krishna, Rajkumar (a domestic help of one of Talwar’s friends) and Vijay Mandal (a domestic help employed by Talwar’s neighbours) and the three remained suspects for a considerably long time.

The High Court held that Rajesh and Nupur could not be convicted for their failure to come up with any explanation for the circumstances under which the double murders were committed.

The results of narco and brain mapping tests on suspects are not legally admissible evidence, although they can help the police in their investigations. The narco tests on the Talwars showed them as innocent, while similar tests on Krishna, Raj Kumar and Vijay Mandal pointed to their culpability. Mandal agreed to turn approver, while Krishna and Raj Kumar offered alibis and refuted the results of the narco tests on them. There is no explanation why the CBI did not pursue the leads after it reconstituted the investigative team.

Anchor’s revelation

The journalist Avirook Sen, in his book Aarushi (Penguin, 2015), refers to a revelation by the television anchor Nalini Singh, who ran a Nepali television channel in 2008. She claimed that she had received a telephone call from CBI officer Anuj Arya a few months after the murders. Arya, who worked under Arun Kumar, had asked Nalini Singh to provide a very curious piece of information: What was the playlist on her channel on the night of May 15-16 2008?

Nalini Singh provided the information after Arya told her that domestic workers suspected in the Aarushi-Hemraj murder case had under narco analysis named specific songs that they were watching that night in Hemraj’s room. The songs played matched with the ones named by the suspects, leading to the inference that the domestic workers were together that night in Hemraj’s room, though all of them denied it. The Talwars pleaded with the trial court judge, Shyam Lal, to allow two additional witnesses, Nalini Singh and Anuj Arya. But Shyam Lal rejected the application, and the final arguments in the case began in 2013.

Nalini Singh confirmed this revelation in her article “Someone did kill Aarushi” in Indian Express on October 17 and asked whether the CBI would constitute Team Three to find the truth behind the murders.

The Talwars, having suffered at the hands of the law, will likely desist from seeking reinvestigation or retrial.

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