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Questions on the Aarushi judgement

Source : SIFY
Last Updated: Mon, Dec 02, 2013 02:05 hrs
Aarushi

In Ghaziabad, they call him 'Sazaa Lal'. CBI Special Judge Shyam Lal is known for his high rate of conviction. But one of the last acts in his career was the delivery of a judgment on November 26 - where he awarded a life sentence to dentist couple Dr Rajesh and Nupur Talwar in the Aarushi-Hemraj murder trial - that baffled some of those who'd been following the trial.

A lawyer not connected with the case called the judgment 'remarkable' because it includes "verbose sermons on human nature and what, in his view, is and is not acceptable conduct. Much of this has very little to do with the case before him, and even less to do with the law".



I, for one, have two questions.

How could Hemraj's blood have been found in Aarushi's room when a cloth tag attached to a blood stained pillow cover - the primary record of the seizure - read 'from servant's room'?

"It has been written that one bloodstained pillow with pillow cover was recovered from the room of Ms Aarushi... and thus it becomes abundantly clear that Hemraj's DNA has been found on the pillow with pillow cover which was recovered from the room of Ms Aarushi as per letter dated 04.06.2008."

At the heart of the murders is the motive behind them. The motive, according to the CBI, is this: upon finding their daughter engaged in intercourse with their servant Hemraj, Dr Talwar fetched a golf club and bludgeoned the two to death in Aarushi's room. The surgically trained couple then slit the throats of the victims and dragged Hemraj's body to the terrace of their flat in order to conceal it.

This story must necessarily begin in Aarushi's room - the place where the act is discovered and where the murders take place. It requires, therefore, some proof that Hemraj was in Aarushi's room. The CBI's admitted position was that no such evidence existed. In their 2010 closure report they said as much, citing this as one of the critical gaps in the chain of evidence that made the case unfit for trial.

During the trial itself, however, although none of the facts had changed, the CBI did its very best to show that Hemraj was in Aarushi's room on the night of May 15-16, 2008. Their greatest ally in this exercise was a letter written in error. This letter, forwarding samples from the CBI to the Central Forensic Science Laboratory (CFSL), made a grave mistake: it said the pillow and pillow cover belonging to Hemraj were recovered from Aarushi's room.

Had this letter been proved, the case was as good as over: the Talwars were guilty. But it wasn't. I was in court on August 29, 2012 when this lie was exposed. This is an eyewitness account:

"In a short, dramatic, little scene at the Ghaziabad court, the pillow cover was unsealed and displayed. A cloth tag attached to it testified to its provenance. The tag said: 'Pillow and pillow cover, blood stained (from servant's room)'. This was the primary record of the seizure. The tag bore the signatures of Dr Mohapatra's Central Forensic Science Laboratory colleague Dr Rajinder Singh, and CBI inspector Pankaj Bansal."

Dr Mohapatra (of the CFSL) was a key member of the 12-man team that made the seizure on June 1, 2008. In his testimony, he had said the pillow cover was recovered from Aarushi's room, according to a forwarding letter he had received from the CBI three days later. The letter was from an officer who wasn't present during the seizures. When cross-examined, Dr Mohapatra said he "did not remember" where the pillow cover was found. On Wednesday, he was asked to read aloud from the tag quoted above.

It isn't that the prosecution didn't try to prevent this, say defence lawyers. RK Saini, the tonsured CBI counsel, whose right eyebrow twitches uncontrollably during every exciting event, first tried to get the exhibit done with a "yeh toh ho gaya". The informative tag was folded into the pillow cover and the item needed to be unfurled for the tag to be read. Saini, say defence lawyers, didn't want this to happen.

What does all this mean for the case? The CBI says it makes no difference. The defence looks at it as an important victory: an attempted frame-up exposed in court. The trial judge has the task of measuring the impact of Wednesday's events.

What effect does the lie of the discovery of Hemraj's DNA in Aarushi's room have? In a sentence, it settles the issue of the guilt of the Talwars. It establishes motive. But the way the judge goes on to do this is baffling. He echoes the prosecution line that there is no clear motive. Grave and sudden provocation attracts a lesser sentence than murder - so this area is left grey in the order. However, once he tells us he has "found" Hemraj's blood in Aarushi's room, there isn't much room to speculate about the guilt of the accused. A life sentence seems justified.

Why was maid Bharti Mandal's testimony used to build the series of events backwards?

"The house maid Bharti Mandal has no where stated that when she came inside the flat both the accused were found weeping."

On September 3 and 4, 2012, the judge heard the following testimony from Bharti Mandal in his court: I felt some thief has entered the house and that is why uncle and aunty (Rajesh and Nupur Talwar) were crying."

And: "Then aunty threw her arms around me and started crying, when I asked her why are you crying so much, she said go inside and see what has happened." (These events take place once Mandal has entered the flat).

The judge listed the lack of tears in the parents' eyes as one of the 26 circumstances that point to their guilt. In a case where perception has trumped proof for the public, this is very powerful - except that it's not true.

Mandal was a crucial witness. The first one on the scene, she apparently settled two issues. First, that the Talwars' flat was locked from the inside, ergo, those within must be the murderers. And second, their conduct was suspicious: they didn't weep.

The judge can refer to the records of his own court to find that the second assertion is false. In order to justify the first, he has set legal precedent: that a witness can be tutored in the truth, provided he or she is from the "lower strata" of society. One of Mandal's first admissions in the trial court was that she regurgitated what was "explained" to her. The critical parts of this tutoring were those that the judge relied upon while reaching his verdict; these portions of her testimony were a first: they matched nothing she had told investigators in earlier interviews.

But this didn't matter. Mandal's testimony was used to build a sequence of events backwards. A story that raped the reputation of a minor and consigned her parents to, given our system, several years behind bars at the very least. Why did this happen? The judge has an insight into this too: the motive of every crime needn't necessarily be established.

In Uttar Pradesh's Dasna jail, the Talwars pondered these questions on Friday. To them, this is a burlesque they wanted no part in. But in the view of a man with one eye on the Thesaurus (and no time for grammar) they are "freaks" responsible for a "flagitious and fiendish" crime.

Read more:

Doshi karaar! Saza kal!


The Talwars: Killers or victims?




Read Complete Coverage

Avirook Sen has been a journalist and writer for over 20 years. A former resident editor of Hindustan Times (Mumbai) and editor of Mid-Day, he has written with passion and insight on subjects as varied as sport and terrorism for top publications across the world. His first book, Looking for America, was published in 2010 to enthusiastic reviews. You can write to him at avirook@gmail.com

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