Talwars Finally Get Acquitted By Allahabad High Court

Verdict Of Lower Court Set Aside

To begin with, the life term conviction of the Talwar couple – Rajesh and Nupur Talwar by a lower court has been finally set aside by the Allahabad High Court on October 12, 2017. This has queered the pitch for being released from the Dasna jail in Ghaziabad where they were lodged since last many years. No doubt, their legal team led by Tanveer Alam Meer have played a leading role in bringing about their acquittal for which they deserve full credit.

Innuendos Against Talwars

Be it noted, Rebecca John who is senior Supreme Court lawyer and the counsel for Talwars said that, “In my 30-year legal career, I have not seen a case that opened up so many fronts and unanswered questions. The worst of innuendos have been used against the family. The Aarushi murder case was a tragedy in many respects. On the one hand, two people were brutally murdered and on the other the Noida police were not equipped to handle a case of this nature”. She hit the nail on the head by rightly saying that, “Everything that could go wrong in this case did go wrong. The first 48 hours are the most important for evidence collection in any case. But the evidence was mindlessly tampered with, corrupted and the murder site completely lost its sanctity.”

Goof-Ups From Day One

To be sure, Rebecca also lamented that, “From the very first day, the case was characterised by a series of mishandled evidence, allegations, goof-ups and the worst of innuendos. When the CBI took over the case from the UP police, their primary task was the recovery of evidence. It was almost like everything was being tailor-made to fit into a theory. This botched up investigation was made worse by a media circus, which only made the investigators lazier as they only followed the narratives that was doing the rounds.” This alone explains why so many goof-ups took place and the early leads were all frittered away gradually!

Media Trial

It also cannot be lost on us that Geeta Luthra who is a senior lawyer of the Supreme Court said the CBI took over the case from a place of disadvantage. She minced no words in making it clear that, “The investigating agencies should have gone on to do their jobs. The media trials were so fierce that the verdict was already painted before the people”. All this cannot be dismissed lightly!

Mistrial By Media

I would be failing in my duty if I don’t mention here what Sajjad Zaheer who is Professor at the AJK Mass Communication Research Centre in Jamia Millia Islamia wrote in his enlightening editorial titled “Mistrial by media” in ‘The Indian Express’ dated October 14, 2017 that, “The prosecution had failed to prove the guilt of the Talwars beyond reasonable doubt and the media had failed to bring this to public notice. When the body of Hemraj was recovered, IG of Police (Meerut) Gurudarshan Singh “solved” the case even before investigations could begin. In a widely publicised press conference, he declared that Rajesh, who was as “characterless as his daughter” had committed the murders after discovering Aarushi and Hemraj in “an objectionable but not compromising position”. Singh was transferred for his defamatory utterances but his sordid speculations captured the imagination of the media. For reasons that elide easy explanations, large sections of the media and the public began to identify so completely with the filicidal narrative that the consideration of other possibilities was foreclosed. On May 28, 2008, a prominent Hindi news channel telecast a show where the anchor authoritatively claimed that Aarushi had sought comfort in an affair with Hemraj because her father was having an extramarital affair. On discovering the two together, Rajesh Talwar had killed them in a fit of temper. The show illustrated its hypothesis through fictionalising scenes of intimacy and murder. This was not an isolated instance. In show after show and article after article, the Talwars were demonized as decadent, immoral, unfeeling, unrepentant, scheming, corrupt and resourceful. Therefore, when a deranged vigilante within the court premises assaulted Rajesh with a meat cleaver inflicting serious injuries, bloggers applauded while a senior columnist wrote: “Tough luck, Talwar”.”

In this same enlightening and must read editorial, Sajjad further exposes media trial by pointing out that, “Once the trial began, the CBI was left with the daunting task of turning insinuation into evidence. A section of the media was happy to help. Evidence that could never be recovered from the scene of crime was made to materialise in newspapers. On March 3, 2011, a leading national daily carried the front-page headline: “CBI says killer wore gloves”. It reported that the CBI “suspects that the killer had used gloves to avoid leaving fingerprints at the crime scene” and that “the finding that the killer wore gloves can help the CBI unravel the mystery over the mismatch between the smudges and bloodstain on the whisky bottle and fingerprints of the Talwars” but for the fact that the “CBI has not found the gloves yet”. Had this not involved the lives of real people, we could have laughed. First, how does something that has not been found – and whose existence is a mere speculation – be called a “finding”? Second, why was there no mention of gloves in the closure report? Third, there was no mystery about the “mismatch” between the bloodstains on the whiskey bottle and the fingerprints of the Talwars. The report of the Finger Print Division of CFSL, New Delhi, had categorically stated the fingerprints on the whiskey bottle did not match those of Rajesh and Nupur.”

Not stopping here, Sajjad further exposes media trial by pointing out in this same editorial that, “Through the trial, the media and the CBI remained peculiar bed-fellows. News reports mysteriously appeared on the morning of the hearings, anticipating the day’s proceedings. On April 24, 2011, another leading daily carried a headline that declared: “Only parents could have killed Aarushi”. This revelation turned out to be a reiteration of the prosecution’s long-held position. The accompanying report provided a sneak-preview to the contents of the counter-affidavit that the CBI would present in court. The reporter declared the document to be “precise and damning for the couple”. As “evidence” was being fabricated and planted, critical facts were being suppressed. A purple pillow-case had been recovered from the room of Krishna, who worked as a compounder for the Talwars. The report of the Centre for DNA Fingerprinting and Diagnostics showed that the pillow-case had the blood and DNA of Hemraj. The CBI dismissed this evidence as a “typographical error” notwithstanding its identification in the report several times by both name and exhibit number (Z20). This crucial piece of information went largely unreported.”

No doubt, all this casts a serious aspersion on the CBI itself. Investigation it seems has not been carried out impartially. Media and CBI have blatantly disregarded the cardinal principle of criminal justice which stipulates the presumption of innocence until proven guilty. While it is true that guilty must be punished but it is equally true that innocents must be protected and not harassed for no fault of theirs.

It must be reminded here that the case was handed over to the CBI after the Noida police was criticized for a botched investigation, which had led to the loss of crucial forensic evidence. If there was one person who allowed material evidence to be destroyed from the crime scene as has been widely reported, it was Data Rama Nanoria who was the then Station House Officer (SO) of Sector 39 Police Station in Noida. Nanoria had disregarded the basic norms of mapping a crime scene and did not requisition the services of forensic team and sniffer dogs. Had he applied his mind and checked the exit and entry points of the Talwars’ flat, the murder mystery could have been solved then and there. If that was not enough, he allowed Aarushi’s room to be thoroughly cleaned and even whitewashed to obliterate all the evidence.

Few Troubling Questions

It merits to ask some troubling questions here: Why was he doing so? At whose instance? Which sensible police officer will act like this? Why he also forgot to seize the clothes that Aarushi wore on the fateful night? Why he was in a tearing hurry as he handed over Aarushi’s body for cremation without obtaining the post-mortem examination report? Why he forgot to recover Aarushi’s camera gifted by her parents for her birthday? Why Aarushi and Hemraj’s mobile phones too were not recovered? Why was the crime scene left unprotected due to which nothing of value could be recovered as former CBI Director AP Singh himself rues? Why Hemraj’s body was not found for a whole day? Why a DNA report implicating Krishna was dismissed as typographical error?

No Direct Evidence

Amidst the hue and cry, the Investigating Officer of the case was changed and Anil Samania was handed over the probe. Samania concluded that it was an “honour killing” and Rajesh Talwar had murdered his daughter, whom he found in an “objectionable position” with helper Hemraj. Rajesh Talwar was arrested and sent to Dasna jail. His arrest led to a clamour of justice for Aarushi and the case was transferred to the CBI.

Curiously enough, the CBI team, led by Joint Director Arun Kumar, turned the case upside down by debunking the Noida police theory and arrested three servants – Krishna, Raj Kumar and Vijay Mandal for the ghastly double murders. Despite his claims, the CBI failed to submit the charge sheet in the case and thus, allowing it to be reopened by the CBI chief. AGL Kaul who was the Investigating Officer of the case carried out an in-depth probe and wrote in the closure report himself that, “There is no direct evidence of what happened between 12.08 midnight and6 AMnext day but circumstantial evidence collected during investigation has critical and substantial gaps. There is absence of a clear cut motive and incomplete understanding of the sequence of events and non-recovery of one weapon of offence and their link to either the servants or the parents.

Lack Of Sufficient Evidence

Interestingly enough, he concluded in his closure report that, “In view of the aforesaid shortcomings in the evidence, it is felt that sufficient evidence is not available to prove the offence U/s 302/301 IPC against accused Dr Rajesh Talwar beyond reasonable doubt. It is, therefore prayed that the case may be allowed to be closed due to insufficient evidence.” However, the then Special CBI judge of Ghaziabad Preeti Singh refused to accept the closure report and instead ruled there was enough evidence to put the Talwars on trial. The case was then transferred to the Sessions Court for trial. The trial went on for four years and the Talwars were convicted by the Special Judge Shyam Lal on November 25, 2013.

No Conviction on Suspicion And Hypothesis

In a scathing indictment of Talwars, the Judge Shyam Lal wrote “The parents are the best protector of their own children and that is the order of the human nature, but they have been freaks in the history of mankind when the father and mother became the killer of their own progeny.” Talwars appealed to Allahabad High Court against the conviction where they were finally acquitted. The Allahabad High Court Bench comprising of Justices BK Narayana and AK Mishra said “Can’t convict the Talwars on the basis of your hypothesis. Conviction can’t be based on suspicion and they have to be given benefit of doubt. The circumstances and the evidence on record did not establish a chain showing their involvement in the murders.”

Lack Of Consistency And Glaring Contradictions

Truth be told, the case was handed over to the CBI on May 31, 2008, following a public outcry. The CBI’s first team, under the supervision of senior IPS officer Arun Kumar, zeroed in on the dentist couple’s assistant Krishna and two domestic helps Vijay and Rajkumar. The three were arrested, thoroughly interrogated and were also made to undergo narco-analysis tests. But soon the CBI constituted another team in 2009 to follow the leads which ultimately led to the agency once again focusing on the role of the dentist couple.

It deserves mention that the first team had claimed that Aarushi and Hemraj were killed with a Nepali knife. A golf club – later handed over by the Talwars – became the possible murder weapon for the second team. The second team could not gather any direct evidence linking the murders to the Talwars. It then filed a closure report before the Special Court in December 2010. The Special Ghaziabad Court refused to accept the closure report and converted it into a charge sheet against the Talwars. It convicted the Talwars on the basis of circumstantial evidence and questionable forensic evidence that was tampered with.

Key Points Of Judgment

Let us now look at the key points of the Allahabad High Court judgment which acquitted the Talwars. They are as follows: -

1. The CBI failed to prove beyond reasonable doubt that the Talwar couple murdered their daughter and domestic help.

2. The benefit of the doubt should go to the accused, in this case, the Talwars, when you rely on circumstantial evidence.

3. The CBI failed to prove that no one else entered the flat during the night of the murder.

4. Chain of events and evidence presented by the CBI not conclusive.

5. No clinching evidence against the Talwars shortcomings in CBI court’s conclusion.

It is pertinent to mention here that Sajjad Zaheer in his enlightening article already mentioned above rightly points out that, “The CBI closure report acknowledged its failure to produce “sufficient evidence” or a “clear-cut motive” for the murders but it left behind a trail of nasty insinuations. Most intriguingly, it refused to even consider the possibility of outsiders being involved despite compelling evidence. This was justified through vague generalisations like “no intruder would bother to dress the scene of crime” and “no intruder would hide the body of the victim”. In response to this inconclusive report, the Talwars filed a protest petition requesting further investigation. The magistrate of the Ghaziabad court rejected the petition and charged the Talwars with murder and destruction of evidence. Nupur Talwar, who was never an accused, was named as one.”

Close to seven years after CBI filed a closure report in Aarushi-Hemraj double murder, former CBI Director AP Singh, under whose command CBI decided to close the case for the lack of evidence said, “The acquittal (of Talwars) is not a big surprise as we (CBI) didn’t have enough material to prosecute them. I don’t think it’s a big surprise. In fact, we also gave Talwars a benefit of doubt due to lack of sufficient evidence”. This statement of former CBI Director is the biggest testimony of how strong the case was against the Talwars!

CBI Failing To Give Credible Evidence

Bluntly put, CBI miserably failed to put forward any credible evidence that could culminate in convicting the Talwars. CBI accused Talwar of using a golf club to hit the victims but admitted that the golf club did not reveal any DNA samples. CBI said both victims were murdered in Aarushi’s room and the crime scene dressed up but admitted that no blood of Hemraj was found in the room. To show Talwars stayed awake on night of murder, CBI said internet router was switched on and off on night of the murder. Technical agency said that the router did the similar activity the next day as well when no one was working.

Conclusion

So we see how CBI stands completely contradicted on all important points it forwarded to prove that Talwars murdered Aarushi and Hemraj. What more should I write? This alone explains why finally the Allahabad High Court has very rightly acquitted both Rajesh and Nupur Talwar of all the charges in this high-profile case!

 

Sanjeev Sirohi 
on 27 November 2017
Published in Others
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