The Murder of Arushi Talwar and the Trial that Endures

“The problem today is that the small screen has become the judge and jury of everything… the fact that these perceptions do not affect the final decision-making is a ‘legal fiction’…”

Harish Salve, Former Solicitor General of India[1]

Introduction

At midnight on May 15, 2008, Arushi Talwar was murdered along with her household help Hemraj. The murders took place in Noida, Uttar Pradesh and captured public imagination in a manner in which few murders had done in the recent past. Till date, the murder is the subject of two films and at least two books. Three investigative teams, one team of the Uttar Pradesh Police, and two (one followed by the other) of the Central Bureau of Investigation (CBI) probed the murders. However, the investigations ended with the CBI filing a closure report citing insufficient evidence.

In this write-up, we will try and understand what the case was all about. This will in turn help us understand the deplorable investigative standards of the police force in India, due to which it became impossible for the CBI and the Courts to punish the culprits.

Factual Scenario

Any certain knowledge of the turn of events inside L-32, Jalvayu Vihar, NOIDA between 11:30 pm (15^th May, 2008) till 6:00 am (16^thMay, 2008) remains elusive till date. What is certain is that the driver of the Talwars, Umesh Sharma, saw all four (Rajesh Talwar, Nupur Talwar, Aarushi Talwar and Hemraj) alive at 11:30 pm, when he went to drop the keys of the car. It is also certain that Bharti Mandal, their maid found only Rajesh and Nupur alive when she went to work in their apartment at 6:00 am the next day.

The closure report filed by the CBI was rejected by the Court and the Talwar couple was asked to stand for trial as the two main accused for the murder of their daughter. Was it really a case of filicide? Interestingly, the CBI, in its closure report had made several insinuations regarding the guilt of the couple. It effect it said- we know they are guilty, but cannot prove it. The Magistrate therefore, gave the CBI another chance to prove their guilt. The Talwars were understandably shocked as they themselves had filed a protest petition against the closure report filed by the CBI. However, the order was upheld by the Allahabad High Court and ultimately by the Supreme Court. The Talwars were to be tried as accused for murdering their daughter.

The Trial Court

The Judge in the Trial Court was Judge Shyam Lal, called ‘Saza Lal’ at the Ghaziabad Bar for his strict approach against the accused. This was a nickname he had carried from his days at the District Court at Bulandshahr.[2]

Nearly a month after the crime was committed, a survey was carried out in six major Indian cities. The survey, carried out by Hindustan Times, found that nine out of ten people felt the media was ‘obsessed’ with the Arushi Talwar murder case. 75% of the respondents said they were following the coverage very closely. They also felt that the media had already pronounced Rajesh Talwar guilty and 64% felt that the coverage would bias both the investigation and the Courts.

Interestingly, a perusal of the Trial Court’s 210 page judgment would reveal that public interest (or perception) was weighing heavily on the Judge’s mind. The Judge repeatedly cited this factor for reaching conclusions. Here’s a list of instances when he relied on  public pressure to reach conclusions-

1. At page 51 of his decision, he relied on Shivaji Sahabrao Bobade v. State of Maharashtra[3] to discount the veracity doubts raised by the defence in the theory of grave and sudden provocation propounded by the CBI. The Judge borrowed the words of the Supreme Court to observe-

“Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.”

2. At page 54 of the judgment, he quotes Justice Holmes to say- “This Court is conscious of the felt necessities of time“, somehow managing to give a message that the Court was aware of the fact that conviction of the accused was ‘necessary’.

2. Again at page 58 he relies on National Textile Workers’ Union v. P.R. Ram Krishna[4]to say-

“…..if the law fails to respond to the needs of changing society, then either it will stifle the growthof the society and choke its progress.”

4. And finally at page 80 of his decision, State of West Bengal v. Mir Mohammad Umar[5] is cited to dispel the serious doubts raised by the defence on the story of the prosecution. The following excerpt was quoted from the case as if to hold that not believing the story of the prosecution would harm the society as a whole-

“On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and society would be the casualty.”

The conduct of the Judge invited the wrath of the High Court at Allahabad. In the High Court, a division bench heard the appeal where one Judge authored a five-page opinion only with the motive of censuring the conduct of Judge Shyam Lal during the trial.

Apart from the public interest angle, Judge Shyam Lal relied heavily on Section 106 of the Indian Evidence Act. The section states-

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

The provision shifts the burden on the accused when murder is committed in the secrecy of the house. The shift in the burden of proof, however, occurs only when it is impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. This provision was applied on the Talwars from after  Bharati Mandal’s testimony. Bharati Mandal was the maid who was the first to visit the Talwars on the morning of May 16 and also the first outsider to see Arushi’s corpse. According to Judge Shyam Lal, the burden of proof shifted from the prosecution to the defence, the moment the maid said the door of the Talwars flat was locked from inside. However, this was a problematic assumption due to one major reason- Bharati Mandal was tutored by the CBI. Under law, it is well-settled that the statement of a tutored witness cannot be relied upon.[6]The Court however, overlooked this fact as Mandal, to quote the Judge, was –

“…totally illiterate and a bucolic lady from the lower-strata of the society and hails from Malda District of West Bengal who came to N.O.I.D.A. to perform menial jobs to sustain herself and her family…”  

After this, the Court relied on Section 106 to effectively state that it was upon the Talwars to explain everything that happened inside the flat in the said six-and a half hours and failure to do so is a strong indication of their guilt.

The Judged summarily dismissed the Talwars’ defence of sleep. The Talwars had argued that they were asleep in their room which had a loud air-conditioner and hence could not hear the sound of doors being opened or closed or sound of footsteps in the apartment. A sound stimulation test confirmed this. However, Judge Shyam Lal chose not to believe it. He sentenced both of them to a life in prison.

The High Court

A perusal of the 273 page judgement of the Allahabad High Court in the Talwars’ appeal reveals that it was highly sceptical of the grave and sudden provocation theory of the CBI.

According to the CBI, the chain of events was as follows- Rajesh Talwar saw Arushi and Hemraj in a compromising position in Arushi’s room. He then took his golf stick and hit both Arushi and Hemraj with it on their heads. He then, along with his wife, wrapped Hemraj’s body in a bed sheet and dragged it to the terrace where he slit his throat with a scalpel. He then came back to and slit Arushi’s throat after which both of them dressed up the crime scene by arranging her toys around her and covering her with a sheet.

However, there were many questions that were left unanswered by the CBI. For instance- Hemraj’s blood was not found in Arushi’s room, which is impossible if both of them had been hit with a golf club in the same room and Arushi’s blood was splattered all over the walls. Moreover, there was no evidence of rape or sexual assault. Further, narco-analysis and brain-mapping of the Talwars was not conclusive.

On the other hand, in the narco-analysis of the servants (namely Krishna who was Rajesh Talwar’s compounder and Rajkumar who was a domestic help of a close friend of the Talwars) showed that they blamed each other for the murders. Moreover, a trace of Hemraj’s blood was found in a pillow cover recovered from Krishna’s room (however, this was later changed by the CBI to show that the pillow cover was found from Arushi’s room and not Krishna’s. The report, mentioning that it was recovered from Krishna’s room was filled with “typographical errors” according to the CBI). While progress was being made on these lines, it was found that both the servants had solid alibis, thereby rendering this theory obsolete. The CBI therefore once again targeted the parents, failing which, they filed the closure report.

The High Court, in its judgment called the doctors’ testimony ‘medically blasphemous’ for supporting the prosecution’s grave and sudden provocation theory. This was because the doctors involved had made material improvements in their statements during their examination compared to what they had earlier stated multiple times in their statements under Section 161 of the Code of Criminal Procedure.

The Court also noted that in the absence of evidence of sexual intercourse, Rajesh Talwar did not have any motive to murder his only daughter. Moreover, the Court held that Bharati Mandal’s testimony was not reliable as she was a tutored witness. The Court also noted how the CBI had planted (for instance Sanjay Chauhan, a government employee, was planted to show the lack of emotion of Talwars post the discovery of their daughter’s body) and tutored witnesses (Bharati Mandal, the maid and the two doctors) to corroborate the theory of grave and sudden provocation.

The report of the forensic lab showing blood of Hemraj in Krishna’s pillow cover was held by the Court to be authentic. This also meant that the CBI had tampered with evidence in its attempt to show presence of Hemraj’s blood in Arushi’s room. Finally, the Court cited a Supreme Court decision to negate the mindless application of Section 106 of the Indian Evidence Act by Judge Shyam Lal at the trial level. The decision stated that the provision does not shift the entire burden of proof to the defence from the prosecution.[7] Hence, the Court held that the accused were not guilty and released them.

The Supreme Court

The CBI decided to file an appeal against the Allahabad High Court’s decision in the Supreme Court in March of this year, i.e., 2018. The success of the appeal is highly doubtful. The decision of the Trial Court was largely based on two grounds-

1. The Last Seen Theory according to which the persons last seen with the deceased was supposed to explain the circumstances of the death
2. The application of Section 106 of the Indian Evidence Act under which, in special circumstances, the burden of proof shifts on the accused.

It was only due to these two assumptions that the CBI succeeded in the Trial Court in spite of a story with several missing links, shaky medical evidence, backed by a tutored and a planted witness. Once the High Court decided against the application of Section 106, it becomes virtually impossible for the prosecution to establish a chain of circumstances to secure the conviction of the Talwars.[8]

There seems to be a trend of sloppy investigations amongst our investigative agencies.

“We use a stick to investigate. The suspect is arrested. He’s brought to the police station and tortured. He’s made to confess.”

S.R. Darapuri, Former Inspector General of Uttar Pradesh Police.

Avirook Sen who attended the trial of the Talwars in the Ghaziabad District Court and has closely followed the case wrote about an instance in his book which highlights the poor standard of investigations in our country-

“In Aarushi’s panchnama, for instance, a line appears to have been added (in visibly small letters) that her pyjama strings were untied. This fit the theory- formulated two years later-that her genitals were cleaned. Singh (sub-inspector)  denied he had made this amateurish alteration to the document…The Judge smiled…Bachu Singh offered a stunningly simple explanation for this in court: ‘Hum aise hi karte hain’ (That’s how we do it)”[9]

Sen later notes how Bachu Singh, the sub-inspector being referred to here, was himself convicted for plotting the murder of a woman who was causing trouble for his family. He was later sent to the same Dasna (jail) where the Talwars were sent.