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 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.
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.
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.
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
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.
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.
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.
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.
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.
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!
[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.
Comment: If this doesn’t appeal to reason, what does appeal!
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.
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!
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.
Comment: Dr Rajesh in tension doesn’t forget to wear gloves but consumes Sula wine!!! Fantastical arbitrary presumption!
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.
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