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Aarushi case: Defence questions CBI's 'sudden provocation' murder theory

The defence on Thursday questioned the basis of what it described as the “lynchpin” of the prosecution’s case – the presence of Hemraj in Aarushi’s room and that acting as ‘sudden and grave provocation’ for Rajesh and Nupur Talwar to murder their daughter and domestic help.

Beginning final arguments before the special CBI court, defence counsel for the Talwars, Tanveer Ahmed Mir, said, “The prosecution’s entire case stands on three pillars. If they crumble, the prosecution’s case, at least, on the circumstance that Hemraj was present in Aarushi’s room and that the accused acted on grave and sudden provocation will not survive,” argued Mir, referring to testimonies of three prosecution witnesses on which CBI’s ‘sudden and grave provocation’ theory is built.

Rajesh Talwar, one of the prime accused in the Aarushi-Hemraj murder case. PTI.

Rajesh Talwar, one of the prime accused in the Aarushi-Hemraj murder case. PTI.

The three ‘pillars’, the defence said, were M S Dahiya, the author of the report that was the first to put on record the ‘sudden and grave provocation’ theory as the circumstance for murder, and the two doctors who performed the post-mortems on Aarushi and Hemraj – Sunil Dohre and Naresh Raj respectively.

Dahiya in his report titled ‘Crime-scene analysis based on photographs of the scene of crime, post-mortem reports and other records of the Aarushi-Hemraj murder case’, the defence argued, had arrived at the ‘sudden and grave provocation’ theory based primarily on the ‘fallacious’ information supplied to him by the CBI that ‘blood of Hemraj was found on Aarushi’s pillow.’

Dahiya, a physicist by training, was deputy director at the Gandhinagar-based Forensic Science Lab when he prepared the report in October 2009. He is now Director of the Institute of Forensic Science, Gujarat Forensic Sciences University.

In his report, which has been placed on record by the prosecution, Dahiya writes, “It has been attempted to be projected that Hemraj was assaulted and killed on the rooftop of the flat of the Talwars. The presence of the blood of Hemraj on the pillow in the bedroom of Aarushi, however, negates that plea conclusively.”

Questioning the basis of that fantastic conclusion, the defence argued, “Blood of Hemraj was never found in Aarushi’s room. It is the admitted case of prosecution in their final (closure report filed in December 2010, submitted by CBI investigating officer A G L Kaul), that ‘No blood of Hemraj was found on the bed sheet and pillow of Aarushi. There is no evidence to prove that Hemraj was killed in the room of Aarushi.’ Further, the testimonies before this court of 39 prosecution witnesses have shown that no blood, no sperm, no sputum, no biological fluid, no flesh or part of skin of Hemraj was found in Aarushi’s room.”

However, based on that unsubstantiated piece of misinformation, Dahiya proceeds to arrive at the ‘sudden and grave provocation’ theory, writing in his report, “…since Hemraj – a Gurkha, could be expected to have used a ‘khukri’ for perpetuating Aarushi’s murder, the slitting of throat of Aarushi and concealing of Hemraj’s dead body may have been planned by someone who happened to lose control over his anger after he found Aarushi and Hemraj together in the former’s bedroom at the dead of night….both the deceased were probably part of some transaction that was enough provocation to enrage the assassin(s) to kill both of them with equal brutality.” (Read more on Dahiya's report and how it overruled the findings of AIIMS expert committee report here.)

Arguing that Dahiya either tried to misguide the investigation or was deliberately misled by the CBI, the defence counsel Mir told the court, “Without DNA reports or seratology reports, how did Dahiya discern that Hemraj’s blood was found on Aarushi’s pillow…On what basis did Kaul give information to Dahiya that Hemraj’s blood was found on Aarushi’s room? … If Kaul had reached the conclusion that Hemraj’s blood was not found in Aarushi’s room, why didn’t he inform Dahiya? Does this not show that Kaul and was trying to falsely implicate the couple?”

The defence further argued that Dahiya’s report, in building its ‘sudden and grave provocation’ theory has relied on statements of doctors who performed the post mortems recorded by the CBI (under section 161 of the Criminal Procedure code) which are not admissible as evidence in court and therefore inadmissible.

“The weakness of this report is that it has relied on statements of witnesses which are not substantive pieces of evidence, which the court doesn’t consider evidence,” said the defence. Dahiya’s report, the defence argued, was prepared with an ‘intent’ and that the “intent was to implicate the Talwars.”
Describing the testimonies of the two doctors – Sunil Dohre and Naresh Raj, as ‘medical blasphemy’, the defence argued that their statements were designed to fortify the CBI’s ‘sudden and grave provocation’ theory.

It was to this effect, the defence argued, that Dohre’s statement was recorded for the sixth time, this time by Kaul on 30 September 2009, (nine days before Dahiya’s report was submitted) in which he mentioned ‘vaginal cleaning’ for the first time.

Bringing up testimony of Naresh Raj, who performed the post-mortem of Hemraj, the defence said, “Naresh Raj has testified that Hemraj’s swollen genitals (Hemraj’s body was recovered one day later in putrified state from the terrace) indicated that he had been bludgeoned in the ‘act’. What doctors have testified in this court is medical blasphemy. In Independent India, no doctor has given such a testimony that Naresh Raj gave in this court,” said Mir.

Defence will continue its arguments on Friday.

Dentist couple Rajesh and Nupur Talwar are on trial for murders of their daughter Aarushi and domestic help Hemraj. On May 16, 2008, 14-year-old Aarushi Talwar was found murdered in her apartment in Noida. A day later, the body of domestic help Hemraj was discovered on the terrace of the three-storey apartment. The Talwars were at home on the night the murders were committed.

By the CBI's own admission there is no forensic evidence that connects the couple to the murders. Relying entirely on circumstantial evidence, the prosecution has argued that the Talwars tried to ‘mislead’ the investigation and that they ‘destroyed’ evidence. The prosecution has relied largely on the ‘conduct’ of the Talwars as key circumstantial evidence against them.