16 Oct 2017 5:46 AM GMT
The Allahabad High Court has acquitted Rajesh Talwar and Nupur Talwar in the Arushi-Hemraj double murder case for the right reasons. The theory of honour killing has been debunked and moral pontification about loss of family values in the upper middle class section has been rendered context-less, with the high court setting aside the judgment of the CBI court which had held the Talwars guilty...
The Allahabad High Court has acquitted Rajesh Talwar and Nupur Talwar in the Arushi-Hemraj double murder case for the right reasons. The theory of honour killing has been debunked and moral pontification about loss of family values in the upper middle class section has been rendered context-less, with the high court setting aside the judgment of the CBI court which had held the Talwars guilty of the murder of their daughter Arushi and their domestic help Hemraj. The alleged motive of the twin murders was the outrage of the parents against the alleged illicit relationship between Arushi and Hemraj. This preposterous theory of ‘honour killing’ was born out of some salacious imagination and was nurtured by media sensationalism, which ultimately found acceptance with the CBI court. The doubts expressed regarding the sustainability of the judgment in an earlier article seem more or less vindicated in view of the high court acquittal.
This was a curious case from the beginning. There were three investigation teams -- one from the state police and two from the CBI. The investigations did not find anything conclusive and a closure report was, therefore, filed. The Talwar couple, however, filed a protest complaint and sought further investigation, seeking to nab the real culprits. But, in an anti-climatic twist of sorts, the magistrate took cognizance on the closure report, and made Talwars the accused.
Anyhow, the judgment of the Allahabad High Court, mainly authored by Justice Bala Krishna Narayana, is on firm legal and logical grounds, unlike the CBI court’s judgment, which was conjectural and speculative.
This was a case totally built upon circumstantial evidence. Therefore, it was important for the prosecution to establish the motive of the crime. The motive allegedly was the above referred outrage felt at seeing Arushi and Hemraj together in a compromising position.
However, this motive theory was found to be contrary to the material on record. The high court noted that the doctor who conducted post mortem examination, Dr Sunil Dohre (PW5), had not noted any indication of sexual activity in the report prepared with regard to Arushi’s body. It was found that he contradicted the stand in his subsequent statements and reports by making material improvements. His explanation was that accused Rajesh Talwar had influenced him through his friends to not to make mention in the report about sexual activity. This was also found to be unbelievable by the court. It was observed that the trial court had failed to notice that Dr Sunil Kumar Dohre neither in his four statements recorded under Section 161 CrPC, nor in his examination-in-chief had deposed that he was approached not to mention anything in his report about sexual activity (para75).
Also, the body of Hemraj was found to be fully clothed and wearing slippers, which made the prosecution theory implausible. The doctor (PW36) harped on the fact that the male organ of Hemraj was found to be swollen, and therefore, stated that the deceased were caught in the middle of a sex act. However, the doctor was confronted with medical experts’ evidence, like Modi’s treatise on medical jurisprudence, which unequivocally stated that body organs get swollen about 36 to 48 hours after death (Hemraj’s body was examined about 36 hours after his death). Though the doctor did not deny the opinion of experts, he said that he was a married man and was speaking from his experience to support the theory (para 71). Such explanations are nothing but puerile and perverse.
Further, the forensic evidence did not report the presence of blood of Hemraj in Arushi’s room. If the prosecution version that both of them were killed when they were found together in Arushi’s room by Rajesh Talwar was true, there would have been presence of blood stains of Hemraj in Arushi’s room. The prosecution’s explanation was that the crime scene was dressed up and cleaned by the accused. But how could only the blood marks of Hermaj be selectively erased? Hence, it was held that ‘the prosecution has failed to prove by any reliable or cogent evidence, the motive suggested by the prosecution for the appellants to commit the double murder i.e. the deceased being caught in the midst of a sexual act on the fateful night by Dr. Rajesh Talwar who suddenly got so gravely provoked that he committed their murder’ (para 80). Also, no blood stains or drag marks were found in hall or the staircase leading to terrace, so as to support the prosecution case that the body of Hemraj was dragged out of Arushi’s room to the terrace by the accused.
No evidence that the flat was locked from inside
There were four persons in the house at night; two were found dead in the morning; so the remaining two must be culprits, if there is no evidence of entry by anyone else at night’- The whole reasoning of CBI court’s judgment is built up on this simple hypothesis. The main witness projected by the prosecution to establish that the apartment was locked from inside was Bharati Mandal (PW10), the domestic maid who had arrived at the flat at 6 am on 16.05.2008, the day when Arushi was found dead. In her initial statement before the police, she had stated that the iron mesh door outside the main wooden door was locked from outside, and therefore she had to wake up Nupur Talwar by pressing the door bell, and Nupur Talwar told her from behind the iron mesh door that Hemraj must have locked it from outside when he had gone to fetch milk and had told her to wait till he came. Thereupon, Bharati Mandal requested Nupur to give the spare key by throwing it from the balcony, so that she can open the door from outside. This meant that the flat was not locked from inside.
However, she changed her statement subsequently and in court, she deposed that the iron mesh door was locked from inside. Though the high court said the contradiction in her statement could not be taken into account as she was not confronted with her earlier statement in the manner provided under Section 145 of the Evidence Act, the court found several inconsistencies in her statements which rendered her unworthy of credence. It was observed that ‘she in her entire statement has nowhere stated that the outer-grill door was locked from inside or the same did not open, despite her trying to open it by pushing it. The only fact which has come in her evidence qua the outer iron mesh grill door is that the same did not open when she had put her hand on it and that too in her cross-examination. The failure of PW10 Bharti Mandal to depose that the outer mesh grill door was actually locked or bolted from inside gives rise to a very strong inference that the outer mesh iron-grill door was not latched from inside’ (para 100).
Moreover, Bharati Mandal had also stated that “whatever was taught/ explained to me, the same statement I have stated there”. The trial court had ignored it stating that she was an “illiterate and bucolic lady from the lower strata” and that her testimony ought not to be discarded on the basis of inconsistencies. However, the high court took it as a sufficient indication of her being a tutored witness.
Indication about presence of others on the fateful night
The high court noted that Hemraj was staying within a room in the apartment itself, and his room had a door which opened to the main hall. KK Guatam (PW7, a retired DSP), who had initially inspected the room of Hemraj, gave a statement to the first CBI team which investigated the matter that there were indications of three persons present in Hemraj’s room on the fateful night. There were three glasses, two of them containing alcohol, in the room. There was a Kingfisher beer bottle, a half empty Sula wine bottle, a whisky bottle with 1/4th of contents etc. The depression in the mattress and also the dirty condition of the toilet pointed towards the presence of more than one person in Hemraj’s room on that night, as per his initial statement. However, PW7 altered his statement before the second CBI investigation team. Further, the forensic report suggested that the DNA and blood group of the blood stains from the liquor bottles were different from that of the inmates of the flat, i.e., the accused and the deceased. From all these, the court held that the possibility of presence of other persons and outsiders besides Hemraj having accessed to the apartment in the fateful night cannot be ruled out and the clear and credible evidence of alternative hypothesis available on record substantially demolishes the prosecution’s theory that the crime was committed by the appellants alone as there was no proof of any outsiders having accessed into the apartment (para 195).
Recovery of pillow stained with Hemraj’s blood from Krishna’s house
The first CBI investigation team had zeroed in on two other suspects, Krishna, an employee of Talwar’s clinic, and Rajkumar, a servant of adjacent flat. Krishna and Hemraj were acquaintances, both of them being of Nepali origin. It was suggested by first investigation team that all of them had a clandestine ‘get together’ at Hemraj’s room on the fateful night.
On searching Krishna’s room, the first investigation team recovered a blood-stained pillow. On forensic examination, the DNA of the blood stain was found to be matching with Hemraj’s DNA. So, Hemraj’s blood stain was found in a pillow in possession of Krishna. This was a very revealing piece of evidence, indicating the involvement of Krishna in the crime.
However, the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, later issued a clarification to the effect that they had confused between the pillow recovered from Krishna’s room with the pillow recovered from Arushi’s room. In other words, the CDFD was clarifying that blood stain of Hemraj was found in pillow from Arushi’s room, and no blood stain was found in pillow from Krishna’s room, and the results got inter-changed due to a ‘typographical error’.
Although the CBI court accepted this casual explanation, the high court viewed this with great circumspection. The high court noted that the clarification, which was issued almost after three years, was made at the instance of the investigating officer AGL Kaul (PW 39). The high court took note of the fact that Kaul had sent a letter to the CDFD on 17.03.2011, almost after three years, demanding to issue a clarification that the pillows got interchanged. Promptly, the CDFD Hyderabad issued a clarification on 24.03.2011, as suggested by Kaul. Regarding this development, the court observed as hereunder: The tenor of the letter given by PW39 AGL Kaul at CDFD Hyderabad personally appears to be clearly suggestive of the prosecution's desire to have an endorsement by the CDFD Hyderabad that out of all the exhibits examined at CDFD Hyderabad, there was only one error that, too, a typographical error with regard to the most controversial article exhibited during the trial which to some extent adversely affected the prosecution case against the appellants. The letter dated 17.3.2011, written after a gap of almost 3 years, was clearly suggestive in nature, albeit command to the CDFD Hyderabad to issue clarification as desired by the Investigating Officer rather than requesting CDFD Hyderabad to enquire whether any error had crept in at the end of CDFD Hyderabad while making the report dated 6.11.2008 or in the procedure examining the exhibits at CDFD Hyderabad (para 217).
So, the court entertained the possibility of alternate hypotheses to the prosecution version. The high court also took note of the manipulative attempts made by investigating officers.
Discarding the theory of golf club as the weapon
Five different crime weapons were suggested to be the crime weapons, by the different investigation teams, namely, (i) hammer (propounded by Noida Police), (ii) knife (propounded by Noida police), (iii) Khukri (propounded by CBI), (iv) Golf Club no. 5 (again propounded by CBI), and (v) surgical scalpels (again propounded by CBI). The prosecution finally fixated on golf club and surgical scalpel.
The golf club was allegedly recovered from the room of Arushi. But it was contended by Rajesh Talwar that they had surrendered the bag containing all 12 golf clubs to the investigating officers on demand. However, prosecution stated that all, except one golf club, was initially produced, and it was only produced later by stating that it had gone missing. The prosecution harped on an email sent by one Ajay Chaddha, allegedly for and on behalf of Talwar, in which it was stated that the missing golf club which was found in Arushi’s room will be produced before the investigation team. However, this Ajay Chaddha was not examined before court, and his evidence was discarded as hearsay.
Also PW38 Dahiya, who suggested golf club as the weapon, stated in his cross-examination that his theory was wholly based on the information supplied by the investigating officer that there was a triangular-shaped injury in the heads of both deceased, and that he had not personally found or verified the existence of such an injury. So, this theory was found to be unbelievable.
Likewise, the testimonies regarding the post occurrence conduct of the accused were all found to be unbelievable. The court found that the statements of the witnesses were materially improved from their earlier statements. Also, the fact regarding internet activity during the fateful night on the basis of log reports was held to be not having any material bearing. The log reports were also held to be inadmissible for non-compliance with Section 65B of the Evidence Act.
The high court found that the prosecution had not established all links in the chain of circumstances convincingly. It was also held that alternate hypotheses could not be totally ruled out. The callousness and ineptitude on the part of investigating agencies were severely criticized. The trail judge was also subjected to harsh criticism for the manner in which the issue was dealt with. It was quite damagingly observed by Justice Arvind Kumar Mishra in his separate judgment 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. It can by no means 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.
While it is justice at last for the doctor couple, the mystery as to who killed Arushi and Hemraj still lingers and until it is unravelled, it can only be termed a job half done.