Trial Court Prejudged Things–Allahabad High Court

Trial Court Prejudged Things–Allahabad High Court

Coming straight to the core point, the Allahabad High Court on October 12 acquitted dentist couple Nupur and Rajesh Talwar in the Aarushi-Hemraj double murder case of all charges and ticked off the trial court judge Shyam Lal for having “prejudged things” and acting “like a film director”. It also ordered their release from Dasna jail. It may be recalled that Aarushi Talwar who was a young girl aged 14 was found dead with her throat slit in her bedroom in flat number L-32 Jalvayu Vihar in Noida on the morning of May 16, 2008. This case had captured headlines for a long time and now again is in the news.

It may also be recalled that the body of the family’s domestic help, Hemraj, who was initially suspected of her murder, was found in a pool of blood on the terrace the following day. The door of the terrace was found locked from inside. While overturning the conviction of the Talwar couple in the Aarushi-Hemraj murder case by a lower court, the Allahabad High Court observed that the trial court judge had acted like a film director and tried to solve the case like a mathematical puzzle.

Let me now jog my readers memory a little back. The Talwars were sentenced to life imprisonment in November 2013 for the double murder of their daughter Aarushi and domestic help Hemraj in May 2008. But on October 12, the tide had turned and the Allahabad High Court set aside the trial court  order delivered by Judge Shyam Lal who has since retired. After a long gruelling legal battle, the Talwars have now finally managed to come out of jail and got respite by being acquitted. It is only if the Supreme Court reverses the landmark verdict delivered by the Allahabad High Court that can once again see the Talwars getting back to jail.

Coming down heavily on the Special Central Bureau of Investigation Court Judge Shyam Lal, the Allahabad High Court said he had “aberrated” and taken “evidence and the circumstances of the case for granted”. In his comments in the judgment, Justice Arvind Kumar Mishra said that some reflection were needed on the style and approach of the trial court judge. It was held: “The learned court judge has prejudged things, drawn conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning (sic).”

It was further held: “The judge took evidence and circumstances of the case for granted and tried to solve it like a mathematical puzzle (sic).” While observing that the trial court judge cannot act like a maths teacher solving a mathematical question by analogy after taking certain figure for granted, Justice Mishra observed, “That way, the judge has aberrated and by dint of fallacious and reasoning has assumed fictional animation of the incident as to what actually took place inside and outside the flat (sic).” It was also held: “He tried to thrust coherence amongst facts inalienably scattered here and there, but not giving any coherence to what in fact happened”.

Commenting further, the order said that, “It cannot be denied that the trial Judge, perhaps out of extra zeal and enthusiasm and on the basis of self perception adopted partial and parochial approach in giving vent to his own emotional belief and conviction and thus tried to give concrete shape to his own imagination stripped of just evaluation of evidence and facts of this case.” Justice AK Mishra also held that, “It is apparent that the trial Judge was unmindful of the basic tenets of law and its applicability to the given facts and circumstances of the case and failed to properly appraise facts and evaluate evidence and analyze various circumstances of this case (sic).”

Not stopping here, Justice Mishra also said that the trial judge “failed to properly appraise facts and evaluate evidence and analyse various circumstances” of this case. He also held that, “The learned trial judge has prejudged things in his own fashion, drawn conclusion by embarking on erroneous analogy, conjecturing to the brim on apparent facts, telling a different story propelled by vitriolic reasoning”. The High Court said the entire judgment was, “creation of fanciful reasoning, presuming facts with indomitable obstinacy…”

Before proceeding ahead, let us now most importantly discuss the ten reasons that the Allahabad High Court gave for its landmark decision. This has been mentioned in Hindustan Times newspaper dated October 14, 2017. They are as follows:-

MOTIVE FOR MURDERS

The high court said the prosecution suggested that the Talwars’ motive behind the murders was “grave and sudden provocation, caused by finding their domestic help in a compromising position” with their daughter. However, it said, there was “not even an iota of evidence suggesting either Hemraj was assaulted in Aarushi’s bedroom or of sexual activity between them”.

The motive suggested by the prosecution, it said, emerged from crime scene analysis and reconstruction report prepared by MS Dahiya which is “based on personal analysis and incorrect information supplied by CBI.”

OUTSIDERS INVOLVED

The court relied on the fact that the iron grille door of the Talwars’ house was bolted from outside, “which gives credence to the theory of outside hand in murders.” It said the Talwars pleaded that they had slept throughout the night and did not hear anything. The murder was discovered after their maid Bharti Mandal rung their doorbell.

HEMRAJ, AARUSHI KILLED IN DIFFERENT ROOMS

The court said Hemraj’s blood was not found on the bedsheet and pillow of Aarushi and there was no evidence to prove that he was killed in Aarushi’s room. The conclusion that Hemraj’s body was found on the terrace and he had a slipper on one of his legs and the fact it was not planted on the body lends credence to the alternate theory that Hemraj was killed on the terrace.

EVERY PERSON REACTS DIFFERENTLY

HC also rejected CBI’s theory that the conduct of the Talwars was not compatible with normal human behaviour after they discovered the murder of their daughter. The court said, “different people react differently in a given situation”.

GOLF CLUB, SCALPELS NOT MURDER WEAPONS

HC said there is “no evidence on record to persuade us to believe that golf club was the crime weapon”. It added no blood or DNA was found on any golf clubs.

INTERNET ROUTER ACTIVITY THEORY

The high court rejected the CBI’s internet activity theory to prove that Talwars were awake till late on May 16. It said, “it is not established that the internet activity noticed in the flats of the Talwars was due to manual operation.”

CHAIN OF CIRCUMSTANCE NOT COMPLETE

The court said the chain of circumstances in the case “is not complete”. “We do not find any reason to fasten the appellants with the guilt of double murder merely on the proof of the deceased being last seen alive with the appellants in their flat in the night of 15.05.2008,” it said.

AARUSHI NOT SEXUALLY ACTIVE

The court said Dr Sunil Kumar Dohre in his post-mortem report did not talk about Aarushi’s vaginal opening and it was pointed out only during the trial. The court added it was proven “beyond all reasonable doubts” that Dr Naresh Raj like Dr Dohre too “committed medical blasphemy in supporting the prosecution case of sexual intercourse and consequent grave and sudden provocation theory”.

SUSPICIONS CAN’T TAKE THE PLACE OF PROOF

“Circumstantial evidence was not adequate for a conviction beyond doubt,” the court said, adding that neither the circumstances nor the evidence on record established the couple’s involvement in the crime.


Talwars Finally Get Acquitted By Allahabad High Court


Innuendos Against Talwars

Be it noted, Rebecca John who is senior Supreme Court lawyer and the counsel for Talwars said:“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

It is noteworthy what Sajjad Zaheer, who is Professor at the AJK Mass Communication Research Centre in Jamia Millia Islamia,  wrote in his enlightening article titled “Mistrial by media” in The Indian Express, dated October 14, 2017. He writes: “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 article: “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 and 6 AM next 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.


TALWARS SLEPT THROUGHOUT THE NIGHT

Talwars’ explanation that they knew nothing as they were sleeping cannot be termed as “no explanation and/or false explanation”. The CBI said from the evidence collected that “someone was sleeping in the Talwars’ bedroom with the air-conditioners on, which was a bit noisy. It was not possible for them to have heard footsteps, closing and opening of doors.

I myself feel that what the Talwars are saying has a valid point. Even if air-conditioners are not on, there are many who sleep so deeply that they just don’t come to know anything if someone opens or closes the door as is the case with my brother and many of my friends even though I normally get up on hearing the slightest of voice. So every person should not be measured by the same yardstick.

Having said this, let me now also draw my esteemed readers unrivetted concentration on what the Allahabad High Court said while acquitting the parents – Rajesh and Nupur Talwar in one of India’s most high-profile criminal trials that, “There was no proof that Noida teenager Aarushi Talwar and her family’s domestic help Hemraj Banjade were murdered because they were caught in a compromising position.” The prosecution based its case on a theory that Aarushi and Hemraj were killed after Rajesh Talwar found them in a compromising position and attacked them with a golf club. The Allahabad High Court thus made it clear that the theory of ‘sudden and grave’ provocation as the motive of the crime could not be proved by the prosecution.

Truth be told, Talwars lawyers contended that there was not even an iota of evidence on record even remotely suggesting Hemraj was assaulted in Aarushi’s room or of any activity between the two. It must be noted here that the lawyers of Talwars backed their claims of innocence of Talwars by citing forensics reports from CFSL, New Delhi. According to forensics investigators, blood and DNA of Hemraj was not found on Hemraj’s clothes. They also referred to the testimony of prosecution witness Dr Sunil Kumar Dohre, who mentioned ‘NAD’ (nothing abnormal detected) while inspecting Aarushi’s private parts during autopsy.

But in the same vein it must also be added here that in his fourth statement to a CBI investigating officer on September 30, 2009, however, he made a dramatic U-turn in his stand and said the girl’s private parts were wide open. In the fifth statement, recorded next year, Dohre said the condition of the private parts suggested they were cleaned after the girl died. He also said that he did not make these observations known earlier since these were his ‘subjective findings’.

It cannot be lost on us that the Allahabad High Court in its landmark judgment very categorically said that, “It is crystal clear, his evidence for the purpose of believing that she was subjected to any sexual intercourse or any fiddling or manipulating with her vaginal cavity was done after her murder does not inspire confidence and no credibility can be attached to the same (sic).” Why he himself stated in the beginning that there was nothing abnormally detected while inspecting Aarushi’s private parts during autopsy? Why he retracted later from it? Was it under some pressure? There are many such unanswered questions.

Be it noted, Naresh Raj, who conducted post mortem of Hemraj, said that his genitals were swollen because he was having sex or was about to before he was murdered. During cross examination, Dr Raj too retracted and clarified that his reasoning was based on his “personal marital experience”. It also cannot be lightly dismissed that Hemraj’s post mortem was conducted nearly 36 hours of his death and by that time, decomposition and considerable swelling had already started.

Interestingly enough, dentists Rajesh and Nupur Talwar got acquitted of murder charges after prosecution lawyers failed to prove that the outer door of the couple’s flat was locked from inside and outsiders could not have entered it. Lawyers of Talwars were able to demolish CBI’s star witness claims who suggested the outer door of the flat was locked from inside, ruling out any eventuality of outsiders entering the house and committing the gruesome murders. Bharti Mandal who was a 35-year-old domestic help, had started working at the Talwars residence only a week before the murders and two of her statements were recorded in June 2008.

More importantly, she was the first person to arrive at the Talwars flat on May 16. She had stated that the outermost iron grille door did not open when she touched it. She had told the trial court earlier and this is most important that, “I have been called for the first time to give statement here. Whatever was taught/explained to me, the same statement I have stated here.” Her statements about the position of the door were crucial for the CBI as the agency had made out its case on the theory that the inmates of the house – the Talwars – had committed murders and no outsider had entered.

As it turned out, Bharti’s statements have not been consistent. She had been changing statements which casts a serious question mark on her credentials. In her earlier statements to the UP Police investigating officer on May 16, 2008, she had stated that when she came inside the house the outer and inner iron mesh doors were open. In her other statement on June 4, 2008, to the CBI’s investigating officer, she had not stated that when she reached the residence of the accused and put her hand on the door it did not open.

It is noteworthy that the Allahabad High Court in its landmark judgment said that, “However, after scanning the statement recorded before the trial court we are constrained to observe that she in her entire statement has nowhere stated that the outer grille door was locked from inside or the same did not open, despite her trying to open it by pushing it (sic).”It is even more noteworthy that the observation about Bharti’s statements suggest that the door was not locked from inside and there was a chance of outsiders having entered is a theory that is maintained by the Talwars. Equally significant is what Allahabad High Court said that, “We are also not satisfied that the prosecution could not have due knowledge of what had happened inside the flat on the fateful night inspite of due diligence as there was clinching evidence on record which pointed at the presence of outsiders in the flat of the Talwars in the intervening night of 15th/16th May, 2008(sic).”

Needless to say, during the initial probe by the CBI against three earlier suspects and domestic helps, Krishna Thadarai, Raj Kumar and Vijay Mandal, the agency arrested them in 2008 and carried out investigation about their involvement in the crime. However, when the second team of the CBI filed their closure report, their involvement was ruled out. Why were they given a clean chit by the second team of the CBI when filing their closure report?

Also, why the second team of the CBI suggested that a golf club and surgical scalpel as the possible fourth and fifth murder weapons? In October 2009, prosecution witness MS Dahiya who was then Deputy Director of Directorate of Forensic science (Gandhi Nagar), suggested possibility of a golf club, with number ‘5’ inscribed on it, and a surgical scalpel being as murder weapons. The prosecution, in order to prove its theory around the golf club and surgical scalpel being the murder weapons, had relied on the evidence of MS Dahiya, Sunil Dohre, who conducted Aarushi’s post-mortem examination and Naresh Raj, who conducted Hemraj’s post-mortem.

Truly speaking, based on Dahiya’s testimony, the Allahabad High Court observed in a scathing indictment of the crime weapons being forwarded as proof to indict Talwars that, “It is obvious that theory of golf club and surgical scalpel being the crime weapon is based wholly upon the information made available to him (MS Dahiya) in the questionnaire supplied to him by AGL Kaul, CBI’s investigating officer, which has hardly any legal sanctity. Moreover, neither postmortem mentions any injury of triangular shape (sic.).” The court also observed that there was nothing in the evidence provided by Dohore and Naresh Raj to suggest that they had examined any golf club or a surgical scalpel before testifying. Naresh Raj, in his cross examination, admitted that neither any surgical scalpel nor any golf club was sent to him by the CBI investigator, seeking his opinion. This itself makes the entire picture clear! Little wonder then that justice has finally triumphed and Talwars after 9 years of tortuous long years have finally got bail by Allahabad High Court! Truth has finally prevailed now!

By Sanjeev Sirohi

 

 

 

 

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