At this moment, in a CBI court in Ghaziabad in Uttar Pradesh, events are unfolding that might eventually go down as one of the most shameful scandals in India’s legal history.
This is a story that should frighten everybody. It’s a story of colossal incompetence and prejudice; a story about a wilful miscarriage of justice. It’s a story that could happen to anyone in the country.
Here’s how it unfolds. Until the intervening night of 15 and 16 May 2008, the Talwars were just an ordinary middle-class Indian family. Rajesh and Nupur Talwar were dentists; their 13-year old daughter Aarushi was a pretty, vivacious grade 9 student in Delhi Public School (DPS), Noida. By all accounts, they were a happy, very close-knit family. On the night of 15 May, Dr Rajesh Talwar had bought his daughter a camera: her birthday was coming up on the 24th; the venue for a celebratory party with her friends had been booked for 18 May. Delighted with her present, Aarushi took pictures of herself and her parents. The clock on the wall behind her showed 10.10 pm.
By the morning of 16 May, all of this had irrevocably and devastatingly changed. Aarushi was found brutally murdered in her bed, her head bludgeoned, her throat slit. At first, the prime suspect was the Talwar’s live-in house help, Hemraj, who was missing from the house. But a day later, on 17 May, Hemraj’s body was found on the terrace, his head similarly bludgeoned, his throat slit.
Since that discovery, the “Aarushi-Hemraj double murder” has become the stuff of urban legend. Everyone knows about it; everyone has an opinion. It’s as if the facts no longer matter.
The discovery of Hemraj’s body had another impact: it triggered a juggernaut that has not stopped till this day. Soon after the find, before any investigation could bear fruit, the Noida police called a press conference and began to spin a conjectural story that has grown and grown, till it seems almost impossible to dislodge. The media fed on this story with an almost crazed frenzy, throwing every modicum of journalistic propriety and fact-checking to the wind.
Suddenly, the Talwars found they were not human beings anymore. They were not parents who had just suffered the most catastrophic tragedy. They were not even just ordinary suspects, pending further inquiry and proof. They were merely ready meat.
Over the last five years, the media has mashed and cooked and masticated this story in any way they choose. The Talwars have been completely stripped of their humanity: now you can mount any story on them and it holds good. Nobody has to prove anything; no one has to be logical; no one has to apply their mind.
They are their child’s murderers. They are wife-swappers. Rajesh was having an affair. Aarushi was not their real child. They didn’t cry enough. They looked too composed. They had dressed the scene of crime. They had acted on sudden and grave provocation. They had found their 13-year-old daughter in a compromising position with their 45-year-old servant. The neck injuries were made by a surgical scalpel, by surgically trained people. Rajesh used a golf club to bludgeon his daughter and servant. No one else was present in the house that night. There was no forced entry. Rajesh had seemed reluctant to open the terrace door for the police. They had interfered with the post-mortem report. They had cleaned out the evidence.
Search your memory: chances are you won’t have to search deep. If you think of the Aarushi-Hemraj murder, all or some of these assumptions are sure to leap at you. Screaming headlines, television reconstructions of dark silhouettes, a 13-year-old girl having sex with a naked man, a father with a raised golf club, hysterical background music, incessant police and CBI theories put out in the public domain. All of this has done the trick. This is now a closed case: the Talwars have already been convicted in the public mind society’s desire for vicarious spectacle. There are enough accounts from family and friends of how Rajesh had banged his head on the wall and been mad with grief, how Nupur had cried hysterically on the phone, how they both had been in severe shock, how decisions were being made for them by everyone else around them those fateful days. But the media grievance is, why didn’t they do this for public consumption, why not on TV debates?
Even so, ultimately, this unconscionable public trial would have been irrelevant if the judicial process had stayed on the rails. But before you read what’s happening in the trial court in Ghaziabad, before you read what real evidence there is either against or in favour of the Talwars, consider this:
For a brief period after Hemraj’s body was found, the needle of suspicion had moved towards Hemraj’s friends — three domestic staff and workers who lived in the area. Krishna, a helper in Rajesh Talwar’s clinic; Raj Kumar, a house-help with Dr Praful and Anita Durrani, who were the Talwars’ friends; and Vijay Mandal, who worked at another neighbour’s house.
During this time, both the Talwars and these aides were put through two sets each of polygraph tests, brain mapping tests, lie detector tests, and narcoanalysis.
Mark this: both Nupur and Rajesh Talwar showed absolutely no deception in their tests. They also showed no knowledge of the crime.
The aides, on the other hand, particularly Krishna and Rajkumar, showed deception in their lie detector tests. Even more crucially, their narco tests pointed to their involvement in the crime. They admitted to their presence in the house that night, described the sequence of the crime, the murder weapon, and how Aarushi and Hemraj’s phones were disposed of. Arun Kumar, the head of the CBI team investigating the murder, held a press conference on 11 July 2008, sharing cautious details of these tests with the media.
This was a serious breakthrough. Narco tests are not admissible as legal evidence, but they are important indicators of which way an investigation should head. Section 27 of the Indian Evidence Act also says if any incriminatory discoveries are obtained pursuant to a voluntarily administered narco test, then these discoveries become legally admissible. This, read with a Supreme Court judgment in Selvi & Others vs State of Karnataka (2010), could have made the beginnings of a strong case.
As things turned out, two major discoveries — one of them absolutely explosive — emerged from Krishna’s narco. But let’s come to that a little later in this story.
Despite this breakthrough, things could not reach any logical end. In September 2009, investigating officer Arun Kumar was taken off the case. A new CBI team took over, with AGL Kaul as the investigating officer. With this change of team, the case suddenly took a new and malicious twist. While it would have been fair to continue investigating both sets of suspects — the Talwars and the domestic aides — inexplicably, after the new team took over, the leads on the aides were allowed to go cold; the pursuit of the Talwars intensified.
Despite this, in December 2010, the CBI had to file a closure report on the case, citing “critical and substantial gaps” in the evidence against the Talwars, an “absence of a clear cut motive”, and an “incomplete understanding of the sequence of events”.
One would imagine this — an absence of substantial evidence and motive, the two most important markers of a murder — would have been enough to absolve the parents of murdering their only daughter. Yet, the CBI named the Talwars as the chief suspect while giving a complete clean chit to the aides.
They also left the story about Hemraj and Aarushi’s liaison dangling in the report as a salacious insinuation. Aghast at the violence being done to their daughter’s memory, aghast the perpetrators would never be caught, aghast they had been left smeared as possible murderers, the Talwars protested against the closure report and asked for the investigation to be reopened. They did not want a premature clean chit, they pleaded; they just wanted the investigation to continue. Hardly classic behaviour for people guilty of a crime.
In a bizarre twist, however, District Magistrate Priti Singh threw out their petition and ordered a trial based on the same closure report that had said it did not have sufficient evidence to charge them. From suspects, the Talwars were now the main and sole accused. The aides remained completely out of the ambit of the case.
Before you read further now about what’s been happening inside the special CBI court, consider just this fact and draw your own conclusion about whether it sounds like a fair trial.
So far, the CBI has produced 39 witnesses. Given how flimsy and mala fide some of them have been, the Talwars wanted the prosecution to call 14 other witnesses — most of them key officers like Arun Kumar from the first CBI team, as well as from the Noida police — who they could cross-examine to demonstrate the correct sequence of events, as well as establish the mala fide of the second CBI team. The court did not grant permission. The Talwars challenged this in the Allahabad High Court. They were denied permission. They went to the Supreme Court: they were denied.
After this, the Talwars asked permission to produce 13 of their own defence witnesses. They also asked for the right to access key documents pertaining to their case: their own and the aides’ narco tests as additional material; the call records of the aides; as well as forensic slides and post mortem reports, etc, that their own expert could examine. Arguing against this, RK Saini, the prosecution lawyer, said they should not be allowed to call any witnesses at all. The Talwars, he said, were merely trying to waste the court’s time.
So: two parents with no former history of dysfunctionality or rage are accused of butchering their only child. There is admittedly no substantial evidence against them. Yet, the prosecution gets to call 39 witnesses. They should be allowed zero.
Does this sound like a fair trial? (The slightly crazed irony of this is doubled when you know that earlier, in July 2008, the same RK Saini had pleaded in court for Rajesh Talwar to be released from custody because his role in the crime had been “thoroughly investigated”, his tests showed “no deception”, none of the crime scene clues matched with him, and his custody was not required “in the interest of justice”.)
As this story goes to press, the court order on the Talwars’ plea has come in: they have been denied access to all further documents related to their case. Of the 13 witnesses they wanted to call in their defence, the judge has allowed only seven: no doctors, no pathologists, no people with any objective standing in the case; only a few family members and friends. Four of these have been ordered to be produced at one go on Thursday, 20 June 2013.
Unless one goes into the details of the case, it’s impossible to understand the extent of the prejudice the Talwars are facing. The CBI’s argument against even this basic norm of natural justice — that an accused should be allowed to present his defence — is just the tip of the mala fide against the Talwars.
At the heart of this, there is a question everyone finds hard to answer: why should the CBI go out of its way to nail the Talwars? It’s not as if either they or the domestic aides are powerful people. So, why would the CBI gun for one and protect the other; why would it not just remain neutral in its search for justice?
The answers can only be assumptive. From the way things have unfolded, two things seem clear. One, the investigation has been frighteningly shoddy from the beginning, both by the Noida police and the CBI. Two, AGL Kaul, the investigating officer of the second CBI team, seems to have bought very deeply and zealously into the insinuations surrounding the Talwars. It drove his line of enquiry; it explains why his closure report was full of irreconcilable gaps.
However, when Magistrate Priti Singh summarily ordered a trial on the basis of this report, things got even more complicated. As Avirook Sen, a journalist who has been attending the trial regularly, writing sharp reports for the Mumbai Mirror, says, “According to me, the CBI never intended to go for a trial. But when a trial was ordered, they just had to extemporise the evidence along the way. Now, with each passing day in court, they are getting more and more invested in their own story.”
It is a cliché to call something Kafkaesque. But what other word can one find for the chilling situation the Talwars find themselves in. Amazingly, Javed Ahmed, Joint Director, CBI, under whose aegis the second CBI team led by Kaul has been functioning, pretty much admits this.
When asked why the CBI was resisting the Talwars’ plea to produce witnesses in their own defence, he said, “We are within our rights by law to do so. There is nothing illegal about it.
It is wrong to insinuate we are being wilfully unfair to them. They can ask for as many witnesses as they want, we can put up our objections. After that, it’s for the court to decide. Our duty is to ensure there is a speedy trial and no one tries to prolong it.” In a rather bewildering non sequitur, he added, “What would you have said if the Talwars had asked for 2,432 witnesses in their defence?”
They’ve asked for 13, not 2,000, you remind him. “I was just giving that as an example,” he said.
I then asked, was it not strange for the CBI to admit in its final report that it has insufficient evidence against someone, suggest the case should be closed, and yet have to prosecute them in a trial on the basis of that. Given this context, was it not strange too that they had argued against Rajesh Talwar’s plea for further investigation before trial and were now stalling the production of defence witnesses?
“You are absolutely right,” he said. “It is a matter of stated record that we have insufficient evidence. But once the judge has ordered a trial, who am I to argue against the judge’s decision? It just becomes our duty to assist the court and we damn well have to do our job in whatever way possible.” Unfortunately, as this story will show, this “assisting of the court” has literally included manipulating and cooking up evidence.
It is also depressing to hear the CBI say, who am I to argue against the judge? You are the premier investigating agency in the country, you say, and you know you do not have evidence. In the interest of justice, isn’t it only fair that you argue against the judge’s decision and push for further investigation before going to trial?
Now imagine the Talwars’ quandary. They are the sole accused in a case where there is no real evidence against them. Yet when they approached the Allahabad High Court and the Supreme Court pleading for an expanded investigation that could probe the possible involvement of outsiders, as well commission advanced forensic tests like Touch DNA (which could even prove their own guilt), their plea was rejected by both courts. The Supreme Court told them this seemed a “last ditch effort to salvage a lost situation”. It also told Nupur Talwar that if she kept coming to them every time she disagreed with orders by the trial court, she would attract “exemplary costs”.
Forget the constitutional provision that every citizen is innocent until proven guilty. In this case, it seems the Talwars’ constitutional right to appeal the higher courts has also been foreclosed.
Javed Ahmed and RK Saini declined to answer any specific questions about the case. “You will appreciate my position,” Ahmed said.
The key to the Aarushi-Hemraj murders lies in two lines of enquiry. One assumes that Hemraj’s friends — the domestic aides — had something to do with it. The other assumes Aarushi’s parents — Rajesh and Nupur — did it.
This story does not assume either set to be guilty. However, it is important to understand — and remember — what facts both theories hinge on, and how they have played out over the last five years.
Take the trail that is lying cold first: facts pointing to the involvement of Hemraj’s friends in the murders.
After Hemraj’s body was found, the Talwars became the natural suspects because there had been no forced entry into the house. The assumption was: there are four people in the house, two end up dead. Clearly, the remaining two must prove their innocence.
But what if there had been outsiders in the house that night who did not need to force their way in; who had friendly entry. According to the CBI officer Arun Kumar’s press conference, Krishna, Raj Kumar and Vijay Mandal had admitted in their narco tests and confessions to the CBI that Hemraj had called them and they had gathered late that night in his room. Krishna (who had a recent grouse against the Talwars) came first and consumed alcohol, then Rajkumar, then Vijay Mandal. They all consumed alcohol, discussed Aarushi, then entered her room. She tried to scream but was gagged and hit by a hard, blunt object. They then tried to abuse her, which led to a scuffle between them. After the scuffle, they went to the terrace and after a lot of struggle, Hemraj was killed. They locked the terrace, came back into Aarushi’s room (presumably to ensure she was dead) and fled.
Narco tests and statements to police may not be legally admissible, but here are physical facts that supported this admission and made it a logical line of investigation. Three bottles were found in Hemraj’s room: one Sprite, one Kingfisher beer, and one Sula wine. (Hemraj himself was a teetotaller.) This certainly suggests he had two or more visitors that night. He used to have the keys to the entrance of the house, and his own room opened into the house. So a friendly entry was perfectly possible.
The sequence of events described by these men also matched the initial post mortem reports on Aarushi and Hemraj. The reports said both had been stunned — and probably almost entirely killed — by the blows on their heads by some hard blunt object; their necks were slit later.
A seven-member committee of scientists and doctors from AIIMS, who analysed the scene of crime, also concluded that Aarushi was killed in her bed, while Hemraj was killed on the terrace.
In addition to this, after Krishna’s confession and narco, a “khukri” with what seemed like tiny blood spots was recovered from his room. On 31 July 2008, the post mortem doctors endorsed that this could certainly have been the weapon of assault that landed the fatal blows. It was also possible the khukri blade was responsible for the cuts on the throat, they said, though these could also have been done by something sharper. The AIIMS committee also endorsed this view.
(Sources in the CBI say Rajkumar also distinctly mentioned another khukri they had thrown away near a mall in Noida. This trail, however, was never actively followed.)
During their narcos, the men also mentioned particular Nepali songs that were playing on television while they were in Hemraj’s room. The CBI cross-checked this with journalist-producer Nalini Singh, who runs a Nepali channel, among others. She verified this to be accurate.
The most devastating piece of evidence though was the recovery of a purple pillow cover from Krishna’s room on 14 June 2008 with suspected blood spots on it. The hair-raising story of what happened with this crucial piece of evidence exposes the dark heart of everything to do with this murder trial: the terrifyingly shambolic status of our investigative and forensic agencies; and the inconceivable lengths they can go to, to either frame someone or cover their own backs.
But first read what happened with the khukri. On 17 June 2008, SK Singla, a serologist with the Central Forensic Science Laboratory (CFSL), Delhi, said he could not identify any human blood on the khukri. The weapon was then sent to BK Mahapatra, a DNA expert at CFSL. Mahapatra said he could not extract any DNA. Even though this was considered the primary murder weapon, the CBI failed to send this piece of evidence for further examination to the Centre for DNA Fingerprinting and Diagnostics (CDFD) in Hyderabad. During the trial, when the Talwars’ counsel cross-examined Singla about the blood marks on this khukri, he again reiterated it was not human blood. Pressed further, he said it was not chicken, dog, cow, goat or buffalo blood either. However, he could not explain any other alternate source for the blood spots on the suspected murder weapon. And that’s where the story of the khukri lies to this day.
Now read what happened to the purple pillow cover. And feel afraid. The purple pillow cover recovered from Krishna’s room was sent to CDFD, Hyderabad. On 6 November 2008, a report came back from them with an absolutely explosive reading: the blood marks on Krishna’s pillow matched Hemraj’s.
In ordinary circumstances, this would have been a bomb of a report. It seemed to blow the mystery off the case. Logically speaking, there is no way Hemraj’s blood could have been on Krishna’s pillow unless the latter had been at the crime site that fateful night. Combine this with the recovery of the khukri, the narco admissions, the booze bottles in Hemraj’s room and surely one could say, to put it mildly, here was the contour of a case.
But read first about the bathos, and then the malice of what happened with this piece of evidence. In an amazing breach of diligence, for almost two and a half years, everyone in the CBI missed this “detail” in the 6 November CDFD report, even while Arun Kumar was still on the job. Incredulously, cross-examined during the trial, MS Phartiyal, who was the investigating officer from September 2008 to March 2009, said, “I did not see this report because I was busy with the investigation.”
In December 2010, with this information about Krishna’s pillow still lying undetected, the CBI filed their closure report, exonerating Krishna and the others. Their oversight was bad enough but the CBI’s eventual reaction to the discovery of this damning evidence is positively chilling.
But before that, the closure report tells its own story. The CBI — now led by investigating officer AGL Kaul who was intensely convinced of the Talwars’ complicity — listed several, one could say flimsy, reasons why Krishna and the others could not be counted as suspects.
These men are certainly entitled to an assumption of innocence. But given the CBI’s intense pursuit of the Talwars — often flying in the face of reason — reading the CBI’s rationale for exonerating the servants alongside simple counter-rationales makes for interesting reading.
Here go some of the reasons cited in the closure report:
CBI’s argument: The servants’ narcos were unreliable.
Counter-argument: This story has already shown why they could as equally be deemed reliable.
CBI’s argument: Narco report of Krishna and Raj Kumar had mentioned that Aarushi’s mobile was sent to Nepal while Hemraj’s phone was destroyed. However, these revelations were found to be incorrect because Aarushi’s mobile was recovered in Noida, while Hemraj’s phone was found active in Punjab.
Counter-argument: This is by no means a foolproof reason to imagine Hemraj’s friends were lying in their narcos. In fact, it’s again astounding that two such crucial pieces of evidence have not been investigated more thoroughly by the CBI. Curiously, during cross-examination, MN Vijayan, a prosecution witness from Tata Telcom, said he could not remember if Hemraj’s number had ever been put under surveillance by CBI. If that’s the truth, it’s unclear how officer AGL Kaul knows it was being used in Punjab. What’s more, if it’s true the phone was in use in Punjab, Kaul does not seem to have deemed it fit to investigate something as important as who was using the dead man’s phone in Punjab or how he came to possess it. The same goes for Aarushi’s phone. Kusum, the maid who claims to have found it on a footpath in Noida, passed it on to a relative Rambhool. It came into CBI possession soon after officer Kaul took over the investigation. Kaul claims the data card was cleaned of all its memory and has blamed the Talwars for this. However, he did not produce Rambhool to explain the condition in which the phone was found; he admitted he had not taken any statement from the police officer who gave the phone to him; and he was unable to explain when Aarushi’s phone was first used after the crime, or its location at the time.
CBI’s argument: Krishna was found asleep in his garage room with his family the morning after the crime so he cannot be a suspect. His family said he had been there all night; there were no phone calls or physical interaction between any of the servants on that day.
Counter-argument: Being found at home does not necessarily discount one from being a suspect. Several of the infamous Delhi gangrape suspects, for instance, were finally arrested from their homes. To hide or run away would have been to draw greater attention. The family’s claim that Krishna was there all night can be read as a protective gesture. There is no proof that there were no calls between the aides on that fatal day. In fact, it was part of the Talwars’ recent plea to have access to the servants’ call records on that day.
CBI argument: The servants would not have the “guts” to assemble in the house while both doctors were present.
Counter-argument: This is a particularly preposterous argument going by the fact that the CBI’s position in the closure report is that Hemraj was having consensual sex with Aarushi right next to the sleeping parents. Why is it believable that he would have the “guts” to do that, while these men wouldn’t have had the guts to even gather in Hemraj’s room on the other side of the house?
CBI argument: Raj Kumar had gone to the railway station with Praful Durrani to fetch his wife Anita Durrani. They apparently reached home at around 10.30 pm after which Raj Kumar prepared a meal for Anita, who ate it around 12 midnight. The Durranis apparently went to sleep around 12.30 am. The amount of time needed to cycle from the Durranis’ house to the Talwars’ was about 20 minutes. The CBI deduces it was therefore impossible for Raj Kumar to reach the scene of crime within the estimated time of assault. The post mortem assesses that Aarushi was killed between midnight and 1 am. Dr Durrani also locked the house from inside himself so it would have been difficult for Raj Kumar to get out.
Counter-argument: This assumes a clockwork precision to every action that evening. Going by the generally appalling standard of forensics in this case, it seems extremely credulous to imagine Aarushi’s murder could not have happened a little after 1 am as well; or that the Durranis turned in a little earlier or later than the CBI claims. Raj Kumar also had a key to the house so he could have let himself out even after the Durranis retired for the night.
To reiterate again, this is not meant to take away the servants’ right to an assumption of innocence. It is merely to cast a hard eye on the facts as they stand. It is also to expose the CBI’s contrasting approach to the Talwars, under investigating officer AGL Kaul.
And now, to return to the discovery of the time bomb: Hemraj’s blood on Krishna’s pillow cover. When magistrate Priti Singh ordered trial, Nupur was suddenly made a co-accused along with Rajesh. In February 2011, she went to the Allahabad High Court challenging this summoning order. While this was underway, the Talwars were given the 6 November 2008 report as part of case material. Chancing upon the explosive description of Hemraj’s blood marks on Krishna’s pillow, Nupur filed a supplementary petition, arguing that as this new evidence clearly pointed to someone else’s involvement in the crime, the case against them should now be dropped and investigation reopened.
The CBI was caught off-guard. Still, had it been neutral, it should have welcomed the discovery of this fresh and solid lead. Instead, in a mischievous move that beggars the imagination, on 8 March 2011, officer AGL Kaul argued in the high court that the description of Krishna’s pillow was a “typographical error” on the part of the CDFD expert in Hyderabad. According to him, the description of two objects — Hemraj’s pillow and Krishna’s pillow — had been interchanged.
Set aside for a moment what this says about the competence of that institution, consider only the preposterousness of the assertion. Anyone who reads the 6 November report will see it is impossible for the expert to have made any typographical error in describing Krishna’s pillow. The description about it runs over a couple of pages and each time it is referred to by its exhibit number, there is also a bracket describing it as being a purple pillow cover. There is no disagreement — even by Kaul — that the purple pillow cover belonged to Krishna. Yet, in a bizarre leap, his contention is that when the experts say Hemraj’s blood was found on Krishna’s pillow cover what they are really referring to is Hemraj’s own pillow. On 8 March, while arguing his theory in the high court, Kaul flashed two photographs at the judge that showed the pillows with different tag marks. However, he failed to submit these pictures to the court or file an affidavit about it. On 18 March, the high court dismissed Nupur’s plea.
Let’s assume for a moment this is true: the moot question is how could Kaul — by merely looking at a report — come to the conclusion that such an error had occurred even before he had communicated with the CDFD about it? How did he even think there had been an error? Was it because this piece blew his own theory about the Talwars being the murderers? If they had killed Hemraj, what was his blood doing on Krishna’s pillow? CDFD expert SPR Prasad’s cross-examination in the trial court shoots the lid right off Kaul’s mala fide. According to Prasad, the CDFD received a letter from Kaul on 17 March — a full 10 days after Kaul had already made his argument about a “typographical error” in the high court. The phrasing of his letter is itself scandalous. According to Prasad, in what seems almost a form of auto- suggestion, Kaul wrote to them saying, “There seems to be a typographical error in describing this item, please check from your records whether there is such an error.”
Prasad also admitted that for two and a half years prior to Kaul’s letter, no one at CDFD had felt there was any such error in their description. He also made one more explosive admission. When he had given the pillow covers to the CBI, they had been sealed and stamped by the CDFD. When they were returned, these seals had been opened. He had no clue when, why or by whom these had been opened. Yet, on 28 March 2011, as Kaul had requested, the CDFD sent a letter back to the CBI saying there had been such an error. Arguments over this “typographical error” had continued between the Talwars and CBI in the Supreme Court for several months. After Kaul got this letter from the CDFD, he submitted an affidavit in the Supreme Court with the photographs of the pillow covers labelled in a way to suit his theory. The Talwars eventually lost their appeal.
However, in an untenable move, Kaul has consistently refused to submit these same photographs in the trial court and subject them to cross-examination. In fact, when the Talwars’ counsel confronted him with a genuine certified copy of his Supreme Court affidavit about these photographs, he refused to recognise his own affidavit. “This is not mine,” he said. “I cannot comment on the matter.” The trial judge, in his wisdom, refused to let the Talwars place this affidavit on record.
Meanwhile, heaping brazen argument upon argument, Kaul also asserted in the trial court that he had noticed the “typographical error” almost as soon as he had taken over the case in 2009. But, incredulously, he says, for more than two and a half years he neither mentioned it in any case diary, nor wrote to the CDFD enquiring about it, nor felt the need to discuss it with any of his peers or even mention it in his closure report. Pressed to explain why, he said he thought he would tell the expert about it if the need arose and the case ever came to trial.
So, with no substantial evidence against them — and with some real evidence possibly pointing guilt in a completely different direction — the Talwars now stand in danger of being convicted for the murder of their child on the basis of a “typographical error” that the country’s most powerful investigative agency either dreamt up or failed to act on for two and a half years.
Surely this takes “assisting the court” and “ensuring a speedy trial” a little too far?
That was the story of the trail lying cold. Here’s what happens when a trail is hot. The CBI’s belief in the Talwars’ guilt hinges on a theory. This theory, of course, was first articulated by the Noida police and fanned by the media. But the man who gave it complete and lurid life is Dr MS Dahiya, a forensic scientist from the Directorate of Forensic Sciences in Gandhinagar — a month after Kaul took over as CBI investigating officer.
Reading Dahiya’s crime scene analysis report — which is based mainly on some crime scene photographs — is like reading a Haryanvi Khap Panchayat elder on speed. It is full of the most astonishing inconsistencies and offensive leaps of imagination. But more on that later.
An amalgam of all these theories is that on the night of 15-16 May 2008, soon after Rajesh and Nupur left their 13-year-old daughter Aarushi in her room, Rajesh heard a sound in her room which was adjacent to his own, so he went to his servant Hemraj’s room at the far end of the house, picked a golf club and went back to his daughter’s room. Inside, he found Hemraj and his daughter in bed and, in a fit of insane rage, he instantly bludgeoned both to death. Hearing the noise, his wife Nupur woke up. Seeing her only and hitherto beloved daughter dead, she immediately swung into helping her husband complete the gory crime. They decided to slit both their servant and daughter’s neck as part of a game plan to make it look like the handiwork of others. Then they dragged their servant’s body up a flight of stairs to the terrace, concealed it with a water-cooler panel, and came back down again. Subsequently, they undertook a massive cleaning up operation, wiped out all evidence of their involvement in the crime, sneaked out at twilight, threw all the bloody and soiled cleaning cloths away, then waited for daybreak.
For five years, this outlandish “honour killing” theory, first conjured by the Noida police then perpetuated by CBI officer Kaul, has floated about untested in the public domain, seeping like noxious gas into everyone’s brain, sedimenting there, unchallenged, into a settled truth.
Before you read further about the “evidence” this theory has been built on, test just the logic of its premise.
The first question one should ask is, what sort of noise do the Noida police and the CBI imagine the parents heard? It could not have been the screaming, struggling noise of rape because, by every expert account including the post mortem report, there were no signs of struggle on Aarushi’s body. She was killed as she lay. This means the only other way she could have been found with Hemraj in a “compromising position” that night was voluntarily.
Break down the illogic of that: The Talwars were a happy, urban, cosmopolitan nuclear family; Aarushi, a gregarious, affectionate teenager, popular in school and close to her parents. Her teenage boyfriends phoned her home at midnight with no fear of offending the parents. Why would she — against logic, against nature, against culture — voluntarily let her middle-aged house help into her bed?
Other obvious questions leap up. While exonerating Hemraj’s friends of the crime — despite their admitted involvement in it — CBI officer Kaul had opined in his closure report that they could not have had the “guts” to gather in Hemraj’s room while the masters were in the house. Why then does he find it so easy to believe Hemraj and Aarushi would have had the “guts” to be in a “compromising position” right next to her parents’ room? What noise does he believe the two were making that could wake the father, if they were surreptitiously in bed? Then again, if at all he did wake upon hearing some noise in his daughter’s room, why would he not open her door immediately to find out what the noise is, or who the intruder could be, which would be the natural instinct of any parent? Why would he walk all the way to his servant’s room at the further end of the house to pick up a golf club first?
One could endlessly pick craters into the CBI’s flimsy theories, but what’s much more germane — and staggering — is to examine the key pieces on which the allegation of honour killing rests.
It’s a measure of the surreal hell the Talwars find themselves in, that logic is no more a provision they can ask for in life. Consider this: For the allegation of honour killing — which is the very foundation of the case against them — to hold, at the very least, Hemraj should have been killed in Aarushi’s room. But — hold your breath — page 29 of the CBI’s own closure report says there is absolutely no evidence of Hemraj’s blood on Aarushi’s bedsheet and pillow. In fact, it states, there is no evidence to prove he was killed in her room at all.
In a just world, this should immediately have dissolved the accusation against them. But, astonishingly, the trial against the Talwars continues. In fact, perversely, they are instead accused of dressing the crime scene and cleaning out the evidence. But as Rajesh’s lawyer Tanver Ahmed Mir says, “Was Hemraj’s blood blue in colour so that the parents would be able to selectively clean his blood from the bed and walls and floor of the room, while leaving Aarushi’s intact?” His logic is unassailable. And yet inadmissible, it seems.
This allegation of a massive clean-up by the Talwars is, in fact, itself a bewildering one. If the Talwars really were such adept and cold-blooded killers, capable of a professional sweep operation that removed every trace of their involvement in their daughter’s murder, why would they leave a big, bloody palm print on the terrace wall, a footprint next to it, a bloodied lock on the terrace’s outside door, a Ballantine whiskey bottle on the table, again with blood on it, and three bottles with blood marks in Hemraj’s room?
But still, the adamant pursuit of them continues, with contortionist twists and turns. At one point in the trial, for instance, the Talwars were dismayed to find that Hemraj’s pillow with his blood was alleged to have been found in Aarushi’s room. Their hearts sank. If this was the case, there was no way they could prove their innocence.
But as it turned out, ‘Parcel 21’ became yet another example of a kind of almost inexplicable mala fide against the Talwars by some officers in the CBI. When this pillow cover — Parcel 21 — was produced in court, Kaul had tried to hustle it out of the room the moment the judge had had a look. But then, in what seems an almost divine intervention for the Talwars, this time the judge himself noticed a tag inside the parcel. Closer examination proved the pillow cover had been seized from Hemraj’s room itself and the seizure memo was signed by CBI Inspector Pankaj Bansal.
There are other cardinal aspects of the case, for instance, that are completely confounding. Again, if the allegation of an honour killing has to hold good against the Talwars, not only should Hemraj have been killed in Aarushi’s room, there has to be some proof of a sexual liaison between them as well. But though there was a written request from the police to Sunil Dohre, the post mortem doctor from the district hospital in Ghaziabad who examined Aarushi, to check for rape or sexual assault, Dohre reported there was absolutely no abnormality detected in the physical aspect of her hymen, and noted only a slight whitish vaginal discharge (which any gynaecologist will testify is highly common in young girls and women), and no sperms. After he filed his report, Dohre stood by these initial findings in several more statements he gave to the police and the CBI on 18 May, 18 July and 3 October 2008. He was also part of the AIIMS committee report filed on 6 September 2008 that stated the same thing.
But suddenly, after Kaul took over the CBI investigation, Dohre’s post mortem analysis of Aarushi changed wildly. In two statements he made to Kaul on 30 September 2009 and 28 May 2010, he said Aarushi’s vagina was so widely distended he could see her cervix and that her hymen was ruptured and healed. He also said the white discharge was from an “outside source” and the cut on her throat was done by a surgical scalpel by surgically trained people and not a khukri as he had earlier maintained. The stun blow, he now felt, could have been done by a golf club.
Curiously, this segued perfectly with Dahiya’s fervid and newly generated crime analysis report. Both vastly contradicted the earlier seven-member AIIMS committee report, which had deemed a khukri to be the possible murder weapon and noted that there had been no sexual abnormality in Aarushi’s reports.
Bizarrely, the post mortem report of Hemraj, conducted by Naresh Raj, a senior paediatrician in the district hospital at Gautam Budh Nagar, went through a similarly miraculous transformation the moment Kaul took over the probe.
Naresh had earlier detected no abnormality or sexual activity in Hemraj. He too had felt the murder weapon could have been a khukri. Like Dohre, he repeated these positions several times in statements to the police and CBI officers. Like Dohre, he was part of the AIIMS team and had put in no dissenting note to their findings. But after Kaul came on the scene, suddenly, he too felt the cuts were by surgical weapons, by surgically trained people, and that Hemraj had been killed in the middle of or just prior to intercourse.
Armed with this triangular piece of insinuated evidence, Kaul proceeded to build a case against the Talwars — by every zealous means at his disposal, as this story has earlier shown.
During the trial, however, Dohre and Naresh cut sorry figures, trying to explain why their positions had shifted so wildly. Asked why he had failed to note these extreme features in Aarushi’s private parts in his reports earlier, Dohre said he had not done so because the latter were merely his “subjective finding”.
Naresh put himself in an even more jaw-dropping position. When Hemraj had been found a day and half later on the terrace, he was already in an advanced state of putrefaction in the May heat. During cross-examination, the Talwars’ counsel quoted Jaising P Modi’s A Textbook of Medical Jurisprudence and Toxicology to him. Naresh accepted this to be an authoritative passage on putrefaction but refused to accept it as an accurate description of Hemraj’s body. The counsel then suggested to him that Hemraj’s swollen penis was in keeping with the rest of his swollen putrefying body and not a sign of sexual activity prior to his murder. Naresh refused to accept this position as well. On what then was he basing his interpretation of Hemraj’s swollen penis, the counsel asked. On personal experience from my marriage, Naresh answered.
There is another important piece that must be proved if the CBI’s honour killing theory is to prevail against the Talwars. Not only must it be proved that Hemraj was killed in Aarushi’s room but that it was dragged up to the terrace by them. The AIIMS committee had already averred that Hemraj’s murder actually took place on the terrace.
Despite this, there have been many versions and counter-versions from different witnesses on whether there were any blood traces on the steps going up to the terrace on 16 May 2008, the day before Hemraj’s body was discovered. Some blood spots were discovered on the 17th but these could have appeared when Hemraj’s blood-soaked body was taken down the stairs by the police.
This piece of the puzzle could have gone badly for the Talwars, with different people holding different positions, until it was discovered that sample numbers 9 and 10 actually pertained to drops of blood on the stairs in front of their neighbour’s house, one floor below them. In a sense, this closed the argument. If there were blood drops on the stairs below them, clearly the murderer had either gone down the stairs and away from the Talwars’ house, or else, those were drops from Hemraj’s body being taken down by the police.
(Still, it’s a mark of how fiercely they wish to prove the Talwars guilty, that while this debate was on, the CBI produced a witness — a magistrate named Sanjay Chauhan — in court who claimed he drives 58 km every day to take a walk in the Talwars’ neighbourhood. He was there that morning, he said, and had seen blood marks on the stairs. He had also noticed that the Talwars were not crying very much. No one else seemed to remember him though.)
The argument over whether Hemraj was killed on the terrace or in Aarushi’s room now seems almost definitely sealed, especially given that there’s no third place he is deemed to have been killed, and it’s certain from the CBI’s own admission that he wasn’t killed in Aarushi’s room.
As the trial proceeds further, to a neutral eye, it seems to be looping back to the findings in the closure report: that there is no motive and no substantial evidence against the Talwars.
But this still leaves the two new alleged murder weapons: the golf clubs and the surgical scalpels. In a sense, both tell a curious story. Ever since the theory about the “surgical scalpel used by surgically trained people” first emerged in the public domain, it has mushroomed into one of those clouds of dark insinuation that constantly hang above the Talwars.
But again, they can only make a plea for a little bit of reasoned attention. They are orthodontists who tinker with gums, not surgeons who slice through muscle and stomach walls. Their tools of trade — an average dental scalpel’s blade — is no longer than 6 mm. It’s not really the kind of weapon you slit your daughter’s neck with from one side to another to “dress a scene of crime”.
Having let this dark gnome out to tease the public mind, however, so far the CBI has not sought to either seize all of the Talwar’s scalpels or even produce one in court to establish it as a murder weapon.
The golf clubs, however, offer another view into the art of obfuscation. If you read Dahiya’s crime-analysis and the CBI’s closure report, without a strong desire to get into the detail, chances are you would come away absolutely convinced the Talwars are hiding many things. If evidence is to fail, insinuation, they have realised, is the real stealth bomb. And sections of the media are always at hand to carry its impact further.
If they search even their surface memory, most consumers of news will remember that there’s “something” about one of Rajesh Talwar’s golf clubs — being cleaner than all the rest. The (hardly) subliminal suggestion is, it was carefully cleaned by the Talwars after the gruesome murders.
However, judge for yourself how much truth there is to that from the sequence of events. Apparently, Rajesh, a novice golfer, often used to go for his practices with two of his clubs, which lay in the boot of his car. A few days prior to the murders, his car needed servicing so Umesh, his driver, put the two clubs — irons 4 and 5 — in Hemraj’s room.
In his closure report, Kaul says there was a photo of Hemraj’s room after the murders in which only one club was visible. According to Kaul, Rajesh was asked about the missing club by his predecessor but he could not explain where it was. Rajesh, on the other hand, says he does not remember being asked but it could well have been lying hidden in the mess of things strewn about in Hemraj’s room, as the photograph shows.
For several months after that, there was absolutely no discussion about the clubs. As Rajesh says, if indeed the CBI had begun to doubt them as murder weapons, why did they not seize the remaining clubs and launch a search for the missing club in the house right away?
But none of that happened. Then on 29 October 2009 — again after Kaul had taken over the case — the Talwars received a letter from the CBI asking for Rajesh’s golf set. Rajesh willingly produced the whole set immediately. Asked where the missing club had been, Nupur said one had been found in a loft while they were clearing out the house but she says she isn’t sure if this was what had been deemed missing by the CBI from the photo of Hemraj’s room. Soon after, iron number 5 was declared the possible murder weapon. But confusingly, rather than irons 4 and 5, Kaul said in his closure report that clubs 3 and 5 appeared to have been “thoroughly cleaned”. When the expert report came back, it emerged that far from being “visibly cleaner”, the grooves of the numbers on the underface of the clubs named Exhibits 3 and 5 were only “ negligibly” cleaner when seen under a microscope!
In a final stroke of absurdity, it then emerged that neither Exhibit 3 nor Exhibit 5 was pertinent to the case. Iron number 5, which had been declared the suspected murder weapon, was actually Exhibit 6 and was not even negligibly cleaner than the others! That apart, no blood, DNA or fingerprints were found on any of the clubs.
This repeated Kafkaesque quality informs every aspect of the Talwar’s murder trial. Despite that, it is difficult to explain the force of prejudice working against the Talwars. On the morning after the murders, for instance, when the maid rang the doorbell and Hemraj was missing, the Talwars had immediately believed he was linked with Aarushi’s death and kept urging the police to look for him. It was a natural assumption. But the moment Hemraj’s body was discovered on the terrace the next day, the reverse suspicion on them spiralled crazily. Many believed their suspicion of Hemraj had been a “diversionary tactic”.
Another question that has dogged Rajesh for five years is why couldn’t he find the keys to the terrace on the morning of 16 May? Why did he seem “reluctant” to open the terrace door? Was he trying to prevent the police from discovering Hemraj’s body?
What no one seems to stop and think is: Rajesh had just witnessed the bludgeoned body of his daughter. He was in a severe state of shock, barely aware of what he was doing: natural responses for any parent. The terrace keys, along with a set of house keys that used to be with Hemraj, have never been found. (Whoever killed Hemraj presumably threw the keys away.) But Rajesh has a simple counter-question for anyone who will listen. The keys to the terrace may not have been found by him that morning, but what stopped the police from breaking the lock or the door down?
When the local police SHO, Datta Ram Nanoria — who had been tasked to search the terrace — was confronted with this question, he said he had simply “forgotten” to break the door despite the blood stains on its lock. He was almost transferred out for his dereliction. Yet, two years later, investigating officer Kaul still left this as an insinuation of Rajesh’s “suspicious behaviour” in his closure report, saying Rajesh had “ignored the request” for the terrace keys.
Ironically, the next day on 17 May, it was Dinesh Talwar — Rajesh’s brother — who urged the terrace lock to be broken in the presence of the police. But bewilderingly, Kaul listed even this among “suspicious activity” related to the Talwars. Dinesh’s urgency, he wrote, showed “the detection of Hemraj’s body was not a mere coincidence”. Predictably though, he did not explain what conspiracy could possibly lie behind Rajesh’s brother getting the terrace lock broken in the presence of the police.
Another insinuation that has tailed Rajesh is that he was awake the night of his daughter’s murder because the internet router in their house kept switching on and off through the night. The most obvious question is, why would a father who had just murdered his daughter keep switching his internet connection on and off? But the “internet router that night” has continued to hang over Rajesh like a miasma. Unfortunately, what is much less well known is that the same unexplained activity on the internet router happened even the next morning, with police and visitors swarming through the apartment, and it was finally deemed “unreliable evidence” in the closure report.
Examining and demystifying all the unfair prejudices around the Talwars, however, would take too long. So here’s the question: what is the evidence that makes the Talwars look so culpable in people’s eyes?
This is what a quick laundry list answer would look like: they could not explain why the keys to Aarushi’s room were not traceable the next morning (though apparently they were later found near the entrance door); they could not find the keys to the terrace; they displayed “undue haste” in cleaning the house; they allegedly made a call to “influence” the post mortem report; they did not cry enough; Hemraj’s body was found with a cooler panel on it; they seemed to have slept through two gruesome murders in their house, and so on.
Set against the mountain of evidence analysed by this story, which seems to stack up in defence of their innocence, this list of complaints looks truly small wood with which to crucify two parents for the murder of their child.
They did not clean their flat with “undue haste” while Aarushi was taken for cremation, for instance: their relatives and staff did, in the presence of and with the permission of policewomen. It was hot, the flat was full of footmarks and a mess as it had not been cordoned off, there were visitors everywhere and the police assured them they had taken what they needed for the probe. The policewoman Sunita Rana — who, the Talwars say, their relatives took permission from — has not been produced by the CBI as a witness. In any case, given that the Talwars did not personally clean up with stealth in the dead of night, is it the CBI’s assumption that all these relatives and house staff are now conspirators to the murders?
For anyone keen to probe the truth, there are similar workaday and quotidian answers possible for many of the questions that assail the Talwars. Perhaps there will be some for which they will have none. The point is, ask yourself, after everything you have read, what do the weigh-scales look like on them?
There’s one final allegation against the Talwars: that they “compromised the vaginal smear” and somehow switched Aarushi’s slides. This brings one to the darkest heart of the story yet.
“Strangely enough,” writes Dahiya in his report, “the vaginal smear alleged to be of the deceased Ms Aarushi, failed the DNA test and hence must have been compromised/replaced probably with a view to ensure that no male biological fluid could be traced to her.”
This allegation is hogwash: stop for a moment and ask, how would they do that? It’s a typical Dahiya-type invention. His report is full of such argumentative pyrotechnics. Certitudes shot through with “probably” and “must have”.
For him, by some strange twist in logic, the bloody palm print on the terrace is “proof that after the assassins returned to the house, the absence of blood stains in the flat shows the murderers took full advantage of well-lit conditions inside the flat to carefully remove all chance prints.” He forgets, they left blood on the whiskey bottle — and presumably fingerprints.
If vaginal smears don’t match or there are no matching fingerprints in a house that has witnessed two gruesome murders, it is not necessarily because the Talwars moved like phantom detectives, making all traces of themselves or others in the house vanish. It’s because the investigative and forensic institutions in our country are themselves falling apart.
As Richa Saxena, the pathologist who examined Aarushi’s vaginal slides, told Kaul, contamination of slides couldn’t be ruled out (not, as Dahiya was suggesting, because the Talwars had connived to replace it) but because “such slides can get contaminated due to faulty handling and storage of slides in unsealed conditions”.
Sunil Dohre, in another statement to Kaul, also said, “We have no procedure of collection of swabs in our district in entire UP state.”
The Aarushi-Hemraj murder story need not have become the nightmarish mystery it has, where three blood-stained bottles should lie in a victim’s room, but the fingerprints on them don’t match any of the suspects; where a bloodstained shoe print should lie next to a putrefying body and that should match no sizes. Ditto for the bloodied lock or the whiskey bottle.
The fact is, from day one, conclusive answers to these murders were doomed. The Noida police did not cordon off the site of crime. Streams of inquisitive neighbours and relatives were allowed to tramp through the house, touch objects and examine them. This is why out of the 24 fingerprints that were retrieved from the house, 22 are too smudged to count; two don’t match anyone.
When Hemraj’s body was found, there was a water-cooler panel over him: the assumption would be it’s the murderer who last touched that. The panel should have been seized and taken for forensics. But it was never even investigated. (When asked about it, the police said it was too heavy). Similar carelessness — criminal carelessness — abounds throughout the story of the Aarushi-Hemraj murder. Krishna’s pants were seized but not his shirts, Aarushi’s blanket was not taken for forensics; neither were the Talwars’. Only a portion of Aarushi’s mattress was cut; there were no sniffer dogs brought to the site. A murdered man was not found on the terrace of a crime site. The list goes on and on.
Yet, in a sense, the Talwars are being blamed for every piece of institutional incompetence. The police don’t seal a scene of crime; they are accused of botching evidence. The police don’t break a terrace door; they are accused of being uncooperative. The CBI does not seize golf clubs; they are accused of being evasive.
Contrary to being obstructive, despite being the sole accused, Rajesh Talwar has written repeatedly to the CBI urging them to get Touch DNA — an advanced form of forensics abroad — done to get at the truth. But, inexplicably, despite being the investigator, Kaul has been stalling him. Rajesh wanted the big palm print sent abroad for Touch DNA, for instance. That would be a clear lead to the murderer. But Kaul argued in the Supreme Court that it had been “consumed” while being analysed in Hyderabad. However, he has been forced to produce it in the trial court.
Trapped in an indescribable world of impossible loss and grief, heaped with insult and suspicion, chained like a performing bear to the incompetence of others, it’s little wonder that Rajesh Talwar says, if he and his wife ever walk free of the labyrinth they are trapped in, he would like to open a world-class forensic sciences centre in India in Aarushi’s name. Perhaps it would help shield others from the cataclysmic tragedy of losing a child, and then being labelled her murderers: nailed not by evidence; but by the lack of it.
Written BY – Shoma Chaudhury
2013-06-29 , Tehalka Magazine (India) Issue 26 Volume 10