The butler didn‚Äôt 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 ‚Äúclear and clinching‚ÄĚ evidence, an overzealous media and a family ‚ÄĒ that is even now trying to come to terms with their daughter‚Äôs murder ‚ÄĒ the CBI has finally ‚Äúsolved‚ÄĚ India‚Äôs 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‚Äôs 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 ‚Äújustice‚ÄĚ. 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 ‚Äúthis definitely happened‚ÄĚ, 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‚Äôs 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‚Äô 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. ‚ÄúThe prosecution built a theory that the murders were committed in a certain way without any convincing proof,‚ÄĚ says Mir. ‚ÄúThen 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‚Äôs case to shreds, but I can‚Äôt defeat the judge when he is going to write the verdict and if he is against me.‚ÄĚ
It is not unusual in India ‚ÄĒ or elsewhere for that matter ‚ÄĒ 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 ‚Äúclinching‚ÄĚ 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 ‚Äúextemporised‚ÄĚ along the way. Yet the court accepted the prosecution‚Äôs narrative, without answering the questions raised by the defence.
In the prosecution‚Äôs 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‚Äôs throat with a surgeon‚Äôs scalpel. They then dragged Hemraj‚Äôs body (with chappals on) and dumped it on the terrace on the second floor. They also cleaned up Aarushi‚Äôs 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‚Äôs blood was found on the floor of Aarushi‚Äôs room.
‚ÄúThe trial has been a mere formality and is not based on the evidence placed before the court,‚ÄĚ says Vandana Talwar, Rajesh‚Äôs sister-in-law. ‚ÄúThe 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.‚ÄĚ
The ‚Äúthree criminals‚ÄĚ 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‚Äôs dental clinic, Raj Kumar was a domestic help of the Durranis, neighbours of the Talwars. Vijay too was a domestic help at another neighbour‚Äôs place. All three were friends of Hemraj.
The case has taken several twists and turns since Aarushi‚Äôs 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‚Äôs 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 ‚ÄĒ friend of a neighbour of the Talwars who came to the house to console them ‚ÄĒ claims to have discovered Hemraj‚Äôs body on the terrace. However, Vandana Talwar, Rajesh‚Äôs 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‚Äôs 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 ‚Äúwilly was turgid‚ÄĚ ‚ÄĒ 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‚Äô 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‚Äôs 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‚Äô 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‚Äôs 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 ‚Äúthe lower strata of society, was uneducated and needed to be tutored‚ÄĚ, it saw nothing wrong with the prosecution‚Äôs action.
‚ÄúIt leaves me flabbergasted that the judge admits Mandal was tutored and yet finds it okay since she is from the lower strata of society,‚ÄĚ says defence counsel Mir. ‚ÄúWill 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‚Äô innocence.‚ÄĚ
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‚Äôs 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‚Äôs 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 ‚ÄĒ who claimed that he regularly drove around 50 km from Greater Noida to the Noida Stadium near the Talwars‚Äô residence for his morning walks ‚ÄĒ said he ‚Äúchanced‚ÄĚ upon the crime scene and noticed the bloodstains. He even said that he saw the Talwars didn‚Äôt 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 ‚Äúchance‚ÄĚ 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‚Äôs 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‚Äôs 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.
‚ÄúTwo press conferences were uncalled for ‚ÄĒ 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,‚ÄĚ says former IPS officer Kiran Bedi. ‚ÄúThese two press conferences actually weakened the case.‚ÄĚ
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‚Äôs 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 ‚ÄĒ the night of the double murder ‚ÄĒ he was with Hemraj, Raj Kumar and Vijay Mandal in the Talwars‚Äô house, had a few drinks and listened to some Nepali music. He also described the murder weapon ‚ÄĒ a khukri ‚ÄĒ 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, ‚ÄúDinesh, they are framing me.‚ÄĚ 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‚Äôs 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‚Äôs three friends: Krishna, Raj Kumar and Vijay Mandal. The investigators found discrepancies in Krishna‚Äôs 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‚Äôs 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‚Äôs blood found in Krishna‚Äôs 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‚Äô 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‚Äô cellphones were disposed of, and, most importantly, led to the discovery of the khukri ‚ÄĒ 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.
‚ÄúOne single family can‚Äôt stand against the might of a large and powerful investigating agency,‚ÄĚ says a relative of the Talwars. Though he had failed to get enough proof against them, SP Arun Kumar‚Äôs investigation at least did not lack in imagination. It tried to look at fresh angles and proper ground-level work.