On May 16, 2008, the country woke up to the shocking news of 14-year-old Aarushi Talwar murdered in her bedroom in Noida while her dentist parents were sleeping in an adjacent room.
The case quickly turned into a media sensation. A day following her murder, the police found on the terrace of the house the body of Hemraj, the family’s full-time domestic worker who had become, for about 24 hours till his body was found, the prime suspect in the murder of Aarushi. Exactly a week later, Rajesh Talwar, Aarushi’s father, was arrested on charges of committing the double murder. His wife Nupur Talwar was also included in the case later and in 2013, both were convicted by a Central Bureau of Investigation court and sentenced to life in imprisonment.
The sentence itself was surprising, given that the crime, of killing of a child by her own parents, had the potential to be categorised as a rarest of rare case, with the relevant sections in the Indian Penal Code providing scope for capital punishment. The trial court decided not to award death penalty because the whole conviction was based on circumstantial evidence, though the court confidently and categorically pronounced that the Talwars were the only people who could have killed their daughter.
The Talwars challenged the trial court conviction in the Allahabad High Court, which on Thursday acquitted the couple for want of a clear chain of evidence that could pin them down as the only possible murderers of their daughter Aarushi, and domestic worker Hemraj. There are drastic differences in the way the trial court and the High Court have analysed the evidence. But what comes through in the evidence recorded is a chilling story.
Despite being considered an elite investigation organisation, the Central Bureau of Investigation functioned like a rogue institution with total disregard for procedures of law. Witnesses were tutored and set up, evidence was manipulated, forensic analysis of key elements were botched up in half-baked examinations and even basic adherence to criminal procedures was given a go by. Investigation officers changed several times in a matter of three years and Aarushi’s character was questioned. Such lapses gave the defence team the opportunity to build a concerted media campaign, with books and movies that were sympathetic to the couple causing a significant effect on public opinion.
But even after the Thursday verdict, two fundamental questions remain unanswered in the case. Who really killed Aarushi and Hemraj? Secondly, what was the reason behind the CBI seemingly going all out to fix the Talwars as the murderers?
Tale of a double murder
On the morning of May 16, 2008, Nupur Talwar said she woke up to the doorbell ringing thrice. Her housemaid had arrived as usual at 6 am, but was unable to enter the house as doors seemed locked. Usually, their full-time worker Hemraj let her in. Nupur Talwar said she assumed that Hemraj must have stepped out to get milk and asked the maid to wait till he returned. The maid asked her if she had another key. Nupur Talwar then asked the maid to go to the ground floor so that she could throw the key to the front grilled door down from the balcony.
What looks like an innocuous everyday happening in a house was in fact the first link in the chain of events that concluded in the Talwar couple’s conviction in 2013. When the maid came back up and entered the house, she saw Nupur Talwar weeping. She then went into the bedroom and saw the bloodied body of Aarushi, with her throat slit. The house had three doors: a front grilled door through which one entered a small passage leading to the house entrance. There was then an iron mesh door and the main wooden door in the same frame. The CBI got the maid to testify that when she first arrived, the doors were locked from the inside, which meant Hemraj could not have gone out that morning without the Talwars’ knowledge and neither could any outsider have come into the house before the Talwars opened it.
During the cross examination, the maid clearly stated that she told the investigating officers and the court what was taught to her, an element that the trial court missed. Why did the CBI tutor her to say that the door was locked from the inside? Under the Indian Evidence Act, Section 106 is a provision that sort of transfers the burden of proof on the accused under certain circumstances. When a fact is within the exclusive knowledge of a person, the burden of proving or disproving something falls on the person. For example, when a person is charged with travelling on a train without a ticket, the burden of proving that she had a ticket is on her. Since according to the CBI the Talwars were the only people who could have been inside the house during the occurrence of the murder, the onus was on them to prove they were not the murderers. What the CBI forgot was that while Aarushi’s body was inside the house, Hemraj’s body was found on the terrace, to which any outsider could have had access as the staircase leading to the terrace was outside the couple’s house. This single fact shook the very foundation of the CBI’s argument of exclusive knowledge under Section 106 of the Evidence Act. The court rejected CBI’s counter claim that Hemraj was murdered in Aarushi’s room and was later dragged to the terrace, with forensic tests showing no conclusive evidence to back this claim.
The story of how Hemraj’s body was found exposed the utter recklessness of the Noida police, which was the first to examine the scene of crime. Despite witnesses telling police officers on May 16, 2008 that there were bloodstains on the door leading to the terrace, the police failed to break the lock open because they couldn’t find a suitable tool to do it. For about 30 hours, Hemraj’s body was rotting on the terrace. When it was finally found, it had swollen substantially. Curiously, the CBI cited the body’s “turgid willy” to claim that he was murdered while he was trying to have sex with Aarushi.
Likewise, the CBI propped up several half-baked theories, the most disdainful of which was the motive ascribed to the killing. The charges said the Talwars killed their daughter and domestic worker because they found them in a compromising position on that fateful night. Stunningly, the Aarushi’s post mortem report claimed no evidence of any sexual act. The doctor who conducted the procedure brought in the element of a dilated vagina in his fourth statement, that too claiming that it was a subjective reading. In fact, his change in position was dramatic, going to the extent of stating that the vaginal canal of Aarushi’s was visible, something medical literature states will happen only to women who have had multiple children. This claim was made to show that the Talwars tried to erase evidence of the sexual activity after the murder.
The other crucial evidence that the CBI used was the internet usage in the house. Showing logs that indicated use of internet throughout the fateful night, the CBI sought to prove that the Talwars, despite their claim otherwise, were awake when the murders happened. However, even basic criminal procedures were not followed in adducing this evidence as the CBI failed to get the electronic records certified as per Section 65 B of the Evidence Act. Such uncertified evidence is inadmissible. Further, the forensic expert who analysed the internet activity said despite requests, the CBI did not make available to him the records he sought, without which the analysis could only be superficial.
As far as the weapon used for the murder was concerned, the Noida police and the CBI proposed five different weapons as possibly causing the injuries. In fact, the CBI came up with the theory of the use of a surgical scalpel and a golf club almost 16 months after the murder in September 2009. Worse, one of the experts the CBI relied upon to prove the weapon of murder told the court that he neither had a degree in forensic science nor was he sent any golf stick by the CBI for examination. MS Dahiya, the witness, had this to say to the court:
“I have based my theory of golf club being a murder weapon on the basis of the information supplied to me by the Investigating Officer to the extent that injury on the head of Aarushi was of triangular shape. It is correct that in the postmortem report no injury has been referred to a that of triangular shape.
Finally, the CBI also deliberately hid expert evidence that proved that it was not possible for the Talwars to have heard footsteps in Aarushi’s room had they slept in their bedroom with the noisy air conditioner switched on.
Who killed Aarushi and Hemraj?
Now that the Talwars have been acquitted, the primary question before the CBI is: who killed Aarushi Talwar and Hemraj? Forensic analysis of materials inside Hemraj’s room clearly indicated the possible presence of two others, who were speculated to be Hemraj’s friends. The DNA sampling and blood analysis showed the possibility of the presence of outsiders in Hemraj’s room on that fateful night. There were even liquor bottles and glasses with half-consumed drinks recovered from the room. The blood samples obtained from the room showed a group different from that of Talwars.
Importantly, Hemraj’s phone was active on the day after the murder and was considered to have been in use in Punjab. The CBI made no effort to trace this activity, a fatal flaw in the case given that it built its entire arguments on the foundation that the Talwars were the only people in the house during the murder. The High Court said:
“Admitted case of the prosecution that a call was made from landline phone of the appellants installed in their flat L- 32 on Hemraj’s number 9213515485 at about 6am on 16.5.2008 and the Investigating Authority in their final report although had claimed that Hemraj’s phone was active in Punjab but it did not place any evidence in support of the aforesaid assertion. The fact that Hemraj phone was active on 16.5.2008 and was in possession of someone else is another very strong circumstance which strongly indicates that someone had entered into the house of the appellants in the night of the incident and after committing the double murder had taken away the cell phone of Hemraj otherwise there is no explanation for the Hemraj’s cell phone responding and being picked up by someone upon a landline call being from the landline of L-32 although at that time Hemraj was lying dead on the terrace of the appellants’ flat.”
Further, reports from the Centre for DNA Fingerprinting and Diagnostics in Hyderabad established that Hemraj’s blood was found on a pillow cover in the room of Hemraj’s friend Krishna, who was living close by. Interestingly, the CBI made the Hyderabad Centre change its position through a clarification letter issued later that the pillow cover was actually recovered from Aarushi’s room and not Krishna’s, thereby adding strength to the claim that Hemraj was murdered in Aarushi’s room by the Talwars. However, neither the trial court nor the High Court answered a crucial question here: How did Hemraj’s blood appear on a pillow cover in Krishna’s room when he was murdered on the terrace?
Also, the question of how the murderer gained access to Aarushi’s room has not been explained thoroughly. Her room had a type of lock usually used in hotels, which when locked can only be opened with a key from the outside but can be opened without a key from the inside. The Talwars had deposed that they had locked the room before going to bed. Did Hemraj have a key to Aarushi’s room as well, which the murderer used to enter?
Dint of fallacious analogy
In acquitting the Talwars, the High Court passed some stinging remarks on the trial court, which convicted them. Reflecting on the manner in which the lower court tried to justify the conviction through conjectures, the High Court said that the judge acted like a film director tried to thrust coherence among facts inalienably scattered here and there. Finally, High Court gave a list of guidelines to lower courts on reading circumstantial evidence:
“(1) The parochial and narrow approach to the facts and evidence should be avoided and evidence of a particular case has to be read and construed on its face value in line with the statutory requirement.
(2) The passionate and rash reasoning should not be the guiding factor while scrutinizing evidence, facts and circumstances of a criminal case.
(3) The self-perception and realm should not be reflected on analogy of the facts and evidence on record.
(4) The judgment should not be based on self-created postulates.
(5) The imagination should not be given a concrete form and transparency of approach must be reflected in the judgment.
