Murder cases are decided on the principle of reasonable doubt, but the Aarushi-Hemraj murder trial is different. In the course of its final arguments, the defence has placed a compelling proposition before the trial court: that there is reasonable doubt on the sanity of some of the "experts" the CBI has relied upon to make its case; and, more seriously, there is reasonable doubt on the integrity of some of its investigators.
It is now a matter of record at the trial court in Ghaziabad that the head of the CBI investigation team, A.G.L. Kaul, tampered with crucial evidence - the purported murder weapon - in his office in Delhi. A CBI witness testified that a dozen golf clubs were taken out of a golf bag, both belonging to the accused Dr Rajesh Talwar, in Kaul's office.
The clubs and the bag were each sealed separately. So how could the clubs have emerged from the sealed bag at Kaul's office so that the five iron could be identified? And worse, how could the seals have been placed back on when the bag and clubs appeared in the trial court as the CBI made their case against the dentist couple?
Defence counsel Tanveer Ahmed Mir pointed to two things that shed light on the conduct of the investigators.
That no official from the maalkhana (the evidence warehouse) was brought in to testify about the chain of custody of any material placed before the trial court - such a witness would have a register on what moved in and out, and caused great discomfort for Kaul.
And that the identification of the "missing" golf club wasn't done before a magistrate - where everything from the seals to the health of the persons who help identify evidence (Dr Talwar's driver Umesh has alleged he was beaten up by Kaul) is under the scrutiny. An investigator of integrity would have done both these things. Kaul chose not to.
The reasonable doubt on the sanity of the "experts" called in is demonstrable in their testimonies. The post-mortem doctor Dr Naresh Raj, whose testimony is pivotal, tells the court that men can sustain erections after they have passed away. And Dr Dahiya, the forensic from Gandhinagar says that he can tell the following from 14 photographs: the names of those whose blood he sees in them, the names of the murderers, and the weapon used--in this case a golf club he hasn't yet seen, because it is seized only after his epiphany.
Much has been made of the conduct of the Talwars during the course of this case: "if they behave this way, they must be the killers". And one of the charges leveled against them is that they kept the story of the mysterious golf club to themselves.
Here is the story. In the initial days of the investigation, Umesh, the Talwars' driver told the cops that he had taken a pair of clubs, a cloth and a bucket from Dr Talwar's car and placed these in the servant Hemraj's room in the Talwar flat. This event took place in January 2008, four months before the murders. Nothing is said about the golf clubs till Dahiya produces his masterpiece in October 2009. His inputs come from Kaul, who informs him about Dr Talwar's golf clubs.
Within four days of Dahiya's report, the Talwars hand over the clubs to the investigators. The CBI sends them for forensic tests and find nothing: no blood, no DNA. And till now, there is no "missing" golf club. The whole set is with the CBI.
Cut to May 2010. Co-accused Dr Nupur Talwar is sitting in Kaul's boss Neelabh Kishore's office in Dehradun when the conversation turns to how the Talwars moved out of their NOIDA flat. Nupur mentions that while cleaning the flat, they found a club in the guest room loft, where the golf bag was usually kept.
A chain of events begins after this. The clubs are sent back for testing. Two of them are found, under a microscope, to be cleaner than the others, after more than six months of havings been exposed because of improper sealing. One of these is a 3 wood, so its out. The other is a 4 iron, a possible weapon.
And what does the CBI do when they receive this information in July 2010? They say the weapon was the 5 iron - which was just as dirty as nine other clubs!
Given the CBI's record, the weapon of offence may yet change in this case once again: from the 5 iron to the 4 iron. But will this, can this, stand the test of law?
The linking piece of evidence in the CBI case is an e-mail from the Talwars' friend Ajay Chaddha written after Nupur Talwar's conversation with Neelabh Kishore. In reply to a mail from Kaul, Chaddha recounted how he and Nupur cleaned the flat before it was to be rented out and found the golf club in the process. He also said that they checked it for blood or other material and found nothing. Chaddha said that he had "corroborated" what he was writing in the mail with Nupur.
It is the CBI's case that Chaddha wrote the mail on the Talwars "behalf". The Talwars have denied this. And Chaddha, who may well have turned hostile on the CBI were he called to testify, was never summoned. (After all, Kaul had the lack of grace to ask him if he was having an affair with Nupur Talwar. Chaddha replied that it was a "stupid question".)
The document in question has not been "proved" to be authentic by the author, argued the defence.
On Thursday, the court will hear about the scalpel that was never seized.
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Aarushi case: How the CBI framed the Talwars