Aarushi Murder Case Judgment: A Critique

Now, the judgment of the Trial Court in the Aarushi murder case has been pronounced, and the parents have been held guilty of the murders on the basis of circumstantial evidence. The undisputed facts of the case are that Nupur Talwar, Rajesh Talwar, Hemraj and Aarushi were last seen together on the night of 15/05/2008 in the flat owned by Rajesh Talwar and occupied by the four people mentioned above. Nupur Talwar is the mother, Rajesh Talwar is the father, Aarushi Talwar was the daughter and Hemraj was the servant; all of them were living in the same flat. Aarushi Talwar was a teenage minor girl with partial capability to make independent decisions, especially in the matter of love, sex, sports and education. Hemraj was allocated separate room opening separately into the common verandah/passage unauthorizedly converted to the use of the occupants of the flat by installing a grill/mesh door at the end of the passage (this particular fact I can’t confirm in absence of a site plan, but from the reading of the judgement it appears to be so). The room of Hemraj also opened inside into the flat. Thus, Hemraj, for all practical purposes, was the sole independent occupant of the said separate unit, with an independent access to the said unit and with an independent mind of his own. Aarushi, on the morning of the next day, i.e. 16.05.2008, was found dead in her separate room, which opened inside the flat. Hemraj was found dead on the next-to-next day, i.e. 17.05.2008, on the terrace of the flat having entrance from the staircase lobby. The door of the terrace was locked and was broken open before recovering the body.
The prosecution theory is that Aarushi and Hemraj were murdered by Rajesh Talwar as he saw Aarushi and Hemraj in a compromising position on the intervening night in Aarushi’s room, and he murdered them in a fit of rage, and that was the motive for the murders. Nupur Talwar was found guilty in the furtherance of the common intention. It is clear from the judgment that the prosecution theory on the motive of the murders has been accepted in toto.
Comment: First and foremost, the crime committed in a fit of rage on a grave provocation doesn’t tantamount to murder but, to culpable homicide. So, the conviction of Nupur Talwar and Rajesh Talwar u/s 302 IPC is bad in law. How are some people appreciating this judgment!

Rajesh Talwar and Nupur Talwar have been convicted on the basis of purely circumstantial evidence as the court found the prosecution was able to discharge its burden beyond reasonable doubt, to the extent they were able to prove that the four people were seen together in the same flat on the night before the murder, and that the two of them were murdered on the intervening night of 15.05.2008 and 16.05.2008 in the flat, or else that Hemraj was brought into unconscious state in the flat and removed from the flat in that state. The burden thus shifted on the still surviving occupants of the flats to prove, u/s 106 Evidence Act, the events which occurred inside the flat on the intervening night and also to prove the events which occurred outside the flat, i.e. the appearance of the dead body of Hemraj on the terrace, in consequence of the events which occured inside the flat
Comment: I have read this judgment twice; the prosecution has nowhere proved beyond reasonable doubt that either the murder of Hemraj happened inside the flat or else he was brought into unconscious state inside the flat. On what basis the onus has been shifted on Talwars to account for the murder of Hemraj is beyond my comprehension; there is no basis even for shifting the onus for the murder of Aarushi on Talwars because there is a presence of a third independent person, i.e. Hemraj, inside the flat on the intervening night. Furthermore, even otherwise, the onus has been shifted wrongly on Talwars to account for the murder of Hemraj or to account for his whereabouts. Even if it is assumed that the murders happened inside the flat, Hemraj was an adult independent occupant of a separate dwelling unit inside the flat with unrestricted control over his movements inside and outside the flat and with even an independent access to his separate unit, and he could have provided friendly and/or surruptious access to outsiders. Rather, no onus can be shifted also because Aarushi was an independent individual with a partially mature mind of her own with the ability to provide surreptitious access to outsiders inside the flat. The prosecution has not even attempted to prove that there was no friendly and/or surreptious access inside the house through Aarushi and/or Hemraj. Unless such is proven, how can the onus be shifted on Talwars u/s 106 Evidence Act?

One of the strong findings in support of shifting the onus is supposed to be the testimony of Bharti Mandal, the maid servant. On the basis of her testimony, it has been held that the flat was not found locked or latched from outside in the morning. The testimony of Bharti Mandal as recorded on page nos. 86-87 of the judgment is reproduced below:

P.W.-10 Bharti Mandal has recounted that on 16.05.2008 at about 06:00 A.M. she reached as usual at Flat No. L-32, Jalvayu Vihar and rang the call-bell of the house but no response came from inside. After pressing the call-bell second time, she went up-stairs to take mopping bucket. Thereafter, she put her hand on the outer grill/mesh door but it did not open. Subsequently, she again pressed the call-bell and then Dr. Nupur Talwar after opening the wooden door came near the grill door/mesh door situated in the passage and enquired about the whereabouts of Hemraj to which she replied that she had no idea of him and then Dr. Nupur Talwar told her that Hemraj might have gone to fetch milk from Mother-Dairy after locking the middle grill/mesh door from outside and she could wait until he returned. Thereupon, she asked Dr. Nupur Talwar to give her keys so that she may come inside the house after unlocking the same and then Dr. Nupur Talwar told her to go to the ground level and she would be throwing keys to her from balcony. Accordingly, when she came down the stairs and reached the ground level, Dr. Nupur Talwar threw keys from balcony and told her that the door is not locked and only latched from outside and then she came back and opened the latch of the mesh door of the passage and came inside the house. Thereafter, Dr. Nupur Talwar told her “Dekho Hemraj Kya karke gaya hai” (Look here, what has been done by Hemraj). When maid Smt. Bharti went in Aarushi’s room she saw that dead body of Aarushi was lying on the bed and covered with a white bed sheet and her throat was slit.

( Emphasis supplied)

Comment: I was so  surprised at the finding reached by the court that I read the above testimony five times, and even now I am trying to convince myself that I am reading the above testimony wrongly, so I have blinked my eyes several times, and, accidentally, I also know a little bit of French, so the portion highlighted above is not “French” for me. Though, I would agree “Mise en Crime”, “Beaut Damsel”, “Dramatis Personae” did put me in doubt for a while. Bloody hell! The door was found latched from outside by the maid servant in the morning!

Comment dt. 25.09.2015: Well…after reading Avirook Sen’s book, it has now become clear that the grill door and the mesh door were not together but separated from each other by a passage. The mesh door in fact shared frame with the wooden door inside. And the door in servant’s room opened in the passage between the mesh door and the grill door. The judgment has wrongly used the phrase “outer grill/mesh door”, which made me misread the facts. So, the relevance of Bharti Mandal’s testimony is that the grill door was locked from inside the first time she came, and the next time when she came up after fetching the keys, the grill door was unlocked but the mesh door was latched from outside, which she opened and came inside, leading to an inference that Nupur Talwar manipulated locks/latches of the grill door and the mesh door while Bharti Mandal was fetching the keys. The only counter argument to this could be that the grill door might have been jammed; therefore Bharti Mandal couldn’t open it the first time. I don’t know whether the prosecution or the defence evidence create enough doubts in this respect. Anyways, here I am only highlighting the manifest errors, not ordinary errors, of law/fact. The relevance of Bharti Mandal’s testimony lies in shifting of onus on Talwars u/s 106, the Evidence Act. However, I still maintain that the prosecution has not proved beyond reasonable doubt that Hemraj was murdered inside the flat or brought into an unconscious state inside the flat.

Another strong finding in support of shifting the onus is that the murder happened inside the flat, in which the rooms were separated by a partition wall, and at least one amongst Nupur Talwar and Rajesh Talwar was awake all night using internet broadband, so the commotion should have been heard. The usage of 45 KB at 2 am and 3 KB at 6 am has been found in the internet log (pg. 134). The defence argument of the usage being accounted for by myriad reasons has been countered by shifting the onus on Talwars u/s 106 Evidence Act (pg. 137).
Comment: This is incredible! Somebody asking you to account for 3 KB and 45 KB usages just because you own and possess the router. Any novice will tell that if a router is left open without any activity, it may download or upload 3 KB of data of its own without any triggered activity; 3 KB and 45 KB usages are so negligible that they can just be ignored. Common sense, please!

Another reason attributed for shifting the onus is the establishment of the motive. On the basis of the postmortem reports of Aarushi and Hemraj, showing whitish discharge sans spermatozoa in Aarushi’s vagina and swollen penis of Hemraj, clubbed with the DNA matching of the pillow cover in Aarushi’s room and the palm print impression on the terrace wall, it has been held that Aarushi Talwar and Hemraj have had intercourse.
Comment: This is nothing but arbitrary finding. Enough expert evidence was laid to show that the whitish discharge sans spermatozoa could mean an internal discharge but not a discharge from any outside source; however, the same has been discarded giving some fancy explanations: The lack of spermatozoa could be because of vasectomy surgery; the doctor couple might have erased the evidence of sexual intercourse; etc. The expert evidence attributing swollen penis of Hemraj to purification has been completely ignored with a statement, “Be that as it may, the fact remains that the penis of Hemraj was found swollen at the time of postmortem examination of his dead body.” What is this if not arbitrariness! What! Somebody said bias!
I won’t comment on the DNA reports because there is already lots of contention on this issue with the defence contending that the clarification statement issued by the prosecution that the pillow cover, earlier mentioned as the one recovered from Hemraj’s room, was wrongly so mentioned, and it was actually the pillow cover of Aarushi, is unacceptable and was falsely introduced with ulterior motives. Let it be contested.

To be very frank, this judgment is full of ridiculous discrepancies; I am not getting into the discussion of the evidence in detail; however, I am sure this judgment will be shattered left, right and centre by the defense counsels in the High Court. I don’t intend to indulge in this infructuous exercise in a blog — I am also feeling drowsy.  However, I am reproducing below some glaring examples of arbitrariness in the judgment:

(Pg. 101-102)

It is pertinent to mention here that before 16.05.2008 they have hardly made telephone calls to each other and thus it is fully established that they were in contact with each other regarding non disclosure of factum of sexual intercourse in the postmortem examination report of Ms. Aarushi. Dr. Sunil Kumar Dohre has also stated that when he was on way to postmortem examination room then Dr. Dinesh Talwar gave him a cell-phone and told him to talk with Dr. T.D. Dogra of A.I.I.M.S. Although, Dr. Dohre had only stated that Dr. T.D. Dogra had told him that blood samples of the deceased Aarushi be taken but it appears that Dr. Dogra had asked him not to mention in the postmortem examination report about the evidence of sexual intercourse and this fact has been deliberately suppressed by Dr. Dohre.

(Emphasis supplied)

Comment: 1) No fact proved to draw the inference of contact in regard to disclosure of factum of sexual intercourse. 2) The arbitrary presumption made about the suppression of facts, without any base facts

(Pg. 120)

The evidence of Dr. Sharma is not reliable because he has displayed in his website that “lawyers can have our services for their clients for better interpretation of scientific evidence against or for their clients……..” Thus it becomes clear that he gives report in favour of the person from whom he charges fees irrespective of the merit of the case.

(Emphasis supplied)

Comment: This should mean that the state appointed medical practitioners should give reports in favour of the state from whom they get salaries! Fantastical arbitrary presumption!

Right now I can’t resist sleep. May add some more later. So…

…Some More Additions

(Pg. 123)

P.W.-39 Mr. A.G.L. Kaul has deposed that Mr. Ajay Chaddha has sent an e-mail to him intimating therein that one golf stick was recovered by him and Dr. Nupur Talwar from the attic opposite to the room of Ms. Aarushi during cleaning of the flat…….Both the accused have stated in their examination under section 313 Cr.P.C. that Mr. Ajay Chaddha has not sent any e-mail on their behalf which cannot be believed in the face of the statement given by P.W.-39. P.W.-31 Mr. Hari Singh has stated that Mr. Ajay Chaddha is a relative of Talwars. Mr. Ajay Chaddha has not been produced to rebut the evidence of P.W.-31 and P.W.-39.

(Emphasis supplied)

Comment: The arbitrary presumption made contrary to Sec 88 A of the Evidence Act, which doesn’t allow any presumption to be made of the person who sent the electronic message.

(Pg. 137)

It is established that in the night of 15/16.05.2008 internet was used throughout the whole night intermittently and the accused were awaken. It should be borne in mind that both the accused are acquainted with the internet functioning and therefore, they may have continued with the start and stop activity of internet router till 13:11:44 hours on 16.05.2008 with intent to confuse and camouflage the investigating agency as also to create evidence in their favour.

(Emphasis supplied)

Comment: Enough evidence in the judgment itself to prove that the couple were not using the internet but were attending to the death of Aarushi and to the police investigation. The arbitrary presumption made without any base facts.

(Pg 138- 139)

He has categorically stated on oath that when on 16.05.2008, when he was returning to his residence after morning walks and came near the curve of sector-25 N.O.I.D.A. then saw the presence of police and government vehicles there and thought that there is some problem of law and order and therefore, he went inside sector-25 where he gained knowledge that a murder has been committed in flat no. L-32, Jalvayu Vihar and therefore, he reached there at about 7.30-7.40 A.M. and went inside the room of Ms. Aarushi where she was found dead and her dead body was covered with a white sheet, her trouser was just below the waist………His evidence cannot be castigated that stadium in sector 25 N.O.I.D.A. is about 28 km. away from his residence and it is not possible to come for morning walks after covering such a long distance. He has assigned reasons for taking morning walks in the N.O.I.D.A. Stadium by stating that during those days Greater N.O.I.D.A. was not developed and keeping in view the nature of his job, it was not safe for him to have morning walks there.

(Emphasis supplied)

Comment: The sun rises in the summers at 6.00 am, and, by 7.00 am, it is hot enough to do morning walk any more. What was he doing for half an hour in the stadium, given his residence is 28 km away from the stadium, and it would have taken him some good in reaching his residence and then getting ready for the job? Failure to ascertain the facts correctly, and thus the arbitrary finding reached!

(Pg 151-152)

[W]hile Dr. Mohapatra has stated that DNA profile found from the bottle was a mixed partial profile of male and female origin which were consistent with the profile generated from the blood stained palm prints and Exhibits like bedsheet, mattress and pillow-cover collected from Ms. Aarushi’s room but P.W.-25 S.P.R. Prasad on analysis of extracts generated by Dr. Mohapatra from the said bottle found DNA profile of only male which matched with the profile of the blood stained palmprint and other profiles belonging to deceased Hemraj. If Dr. Rajesh Talwar had consumed neat liquor from its mouth then in that eventuality the saliva and DNA of Dr. Rajesh Talwar must have come in contact with the mouth of the bottle but no DNA could be found on it and therefore, this circumstance as relied upon by the prosecution is liable to be disbelieved. The aforesaid arguments do not appeal to the reason and therefore, liable to be rejected.

(Emphasis supplied)

Comment: If this doesn’t appeal to reason, what does appeal!

(Pg. 165)

The evidence of K.K.Gautam that on examination of the room of Hemraj it was observed that three persons might have been sitting in the bed as there were depressions on the bed and in the two glasses substance like alcohol was seen and it seemed that toilet of Hemraj had not been flushed and more than one person had urinated in the toilet hardly inspires confidence as this statement is based on surmises, conjectures and speculations. It is not possible at all that in the midnight around 12.00 O’Clock Krishna, Rajkumar and Vijay Mandal will come to the room of Hemraj and have liquor drinks. If it was so, four glasses might have been found there but K.K. Gautam has stated before the I.O. that in only two glasses substance like alcohol was seen which has not been confirmed by any other evidence.

(Emphasis supplied)

Comment: For goodness sake, the people were not drinking Scotch in a five star bar but Sula in a servant’s room. Complete lack of empathy for the practical realities of life, and the arbitrary finding reached thereby!

(Pg 166)

The accused Dr. Rajesh Talwar has admitted at page no. 2 of his written statement under section 313 Cr.P.C. that he and his wife have been brought up in a very liberal atmosphere with modern outlook and at page 3 he has stated that he takes alcohol at parties. However, at page no. 4 of his written statement he has stated that whisky bottle should have been ordinarily in the cabinet. This answer itself suggests that Dr. Rajesh Talwar is fond of liquor and he used to take liquor in his flat as he himself has admitted that whisky bottle must have been in the cabinet and not in the dining table and therefore, there is every possibility that whisky was taken by the accused Dr. Rajesh Talwar. It is also possible that whisky bottle might have been lifted after wearing gloves. It is also possible that Sula wine may have also been taken by the accused when he was extremely and intensely in tension after committing the crime or it was partly made empty to show that Hemraj and his friends had consumed the liquor.

(Emphasis supplied)

Comment: Dr Rajesh in tension doesn’t forget to wear gloves but consumes Sula wine!!! Fantastical arbitrary presumption!

(Pg 169)

It is also possible that before going to sleep Dr. Nupur Talwar might have changed her gown which she was wearing at the time of taking pix from digital camera. As stated herein before, being mother of the child it is not possible that on seeing her child dead she would not have hugged her. During hugging certainly, the gown of Dr. Nupur Talwar must have also been blood stained but no blood was found, which clearly shows that she had changed her gown or other night-garment, which she was wearing in the night.

(Emphasis supplied)

Comment: People don’t change gowns before going to sleep rather they wear gowns before going to sleep unless they pre-plan murders, which is certainly not the prosecution theory. Fantastical arbitrary presumption!

The judgment can be downloaded from Aarushi Murder Case Judgment

© 2013 Ankur Mutreja

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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