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Aarushi-Hemraj murders: Key elements that will decide the verdict

A year and three months after the Aarushi-Hemraj murder trial began in a Special CBI court in Ghaziabad in Uttar Pradesh, CBI’s lawyers began their final arguments before the judge on Thursday.

The crime, committed more than six years ago, has attracted massive media attention from the time the news broke on the morning of May 16, 2008 when 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. On trial for the two murders are Aarushi’s parents - dentist couple Rajesh and Nupur Talwar - who were in the house on the night the crime was committed.

Aarushi-Hemraj

Final arguments have begun in the Arushi-Hemraj murder trial.

By the prosecution’s own admission, there is no material evidence, forensic or otherwise, that implicates Rajesh and Nupur of committing the murders. Built on circumstantial evidence, the prosecution’s case is based on the ‘last seen theory’, that is, the victims were last seen alive with the accused.

For a conviction, the prosecution has to convince the judge beyond reasonable doubt that there was absolutely no possibility of a third party entering or having entered the third-floor apartment between the evening that Rajesh, Nupur, Rajesh, Aarushi and Hemraj were seen together and the next morning when Aarushi’s body was found.

Here are some of the key developments during the trial that could impact the court’s decision.

The first dramatic twist in came when a key prosecution witness Bharti Mandal, who worked as a maid with the Talwars, told the court that she had been tutored by the CBI on what to say in court.

Mandal was the first person to arrive at the Talwars’ residence on the morning of May 16, the day Aarushi was found murdered. Her testimony is crucial to the prosecution’s ‘last seen’ theory, the critical aspect being whether or not the door to the Talwars’ residence was locked from outside when she arrived.

With her open declaration in court that she had been told what to say, her deposition insinuating that the Talwars only pretended to be locked in when she arrived around 6 am on 16 May stood discredited. So, if the house was indeed locked from outside when she arrived, it raises a big question mark on the prosecution’s case ruling out the role of outsiders.

Two, an important revelation made during the trial, one that could work strongly against the defence while bolstering the prosecution’s circumstantial evidence theory, came during the deposition of former police officer KK Gautam.

Gautam told the judge that he was asked by his eye-doctor Sushil Chaudhary, at the behest of Rajesh’s brother Dinesh, to use his (Gautam’s) influence to make sure that ‘rape’ was not mentioned in the post-mortem report. This, the prosecution could argue, proves that the accused attempted to interfere with the investigation.

An important aspect to the prosecution’s circumstantial evidence theory will be the behaviour of the accused on the morning that the body was discovered. Here, the prosecution could argue that the testimony of two of Rajesh’s former colleagues Rohit Kochhar and Rajiv Varshney prove that Rajesh’s behaviour was suspicious.

Varshney and Kochhar in their respective statements told the court that they had noticed blood stains on the stairs leading up to the terrace and on the terrace door as well. Varshney told the court that he saw Rajesh go “towards staircase and immediately returned and went inside the house”. Kochhar testified that when a policeman asked Rajesh for the key to open the terrace door, “Rajesh went into the house and did not come out for a long time.”

Three, the opinion of Sunil Dohre, the doctor who performed the post-mortem on Aarushi’s body, will be critical. His professional opinion was that the v-shaped injury on the victim’s head could have been caused by a golf club and that the slit on her throat was made by ‘surgically trained person’ using a sharp-edged light instrument such as a scalpel. The prosecution will argue that this represents strong circumstantial evidence against the defence.

Dohre went on to make certain observations on the state in which he found the private parts of the deceased teenager. While the post-mortem report by Dohare recorded ‘no abnormal activity’, he told the court that it appeared to him that Aarushi’s private parts had been ‘manipulated’ and that the vaginal cavity was dilated. Asked by the defence why he had not recorded his finding in the post-mortem report, Dohre said these were his ‘subjective findings’ and therefore not recorded.

To counter the prosecution’s expert opinion, the defence produced its own expert R K Sharma, former head of forensic science at the All India Institute of Medical Sciences (AIIMS). Sharma told the court that the hair-line fractures found on the bodies of Aarushi and Hemraj could not have been inflicted by a golf club. A golf club, he said, would cause ‘depressed fractures’ not ‘hair-line fractures’.

Disagreeing with Dohre’s opinion that a scalpel could have been used to the make the slit on the throat, Sharma told the court that Aarushi's post mortem report mentioned ‘sliced carotid artery’ and that it would be difficult to slit an artery which is deep inside the neck using a scalpel.

Sharma’s opinion that a khukri, a Nepalese knife, could have been used to slit the throat of the victims could help the defence’s case. A khukri was recovered from one of the initial suspects in the case Krishna Thadarai, Rajesh’s compounder at the clinic. Krishna along with Vijay Mandal (domestic help of one of the neighbours) and Raj Kumar (domestic help of the Durranis, family friends of the Talwars who lived in the neighbourhood) had been arrested by the CBI but were subsequently released for lack of evidence.

Which expert opinion the court will rely on, however, remains to be seen.

Four, a crucial testimony that could serve the defence’s case is that of CBI officer MS Fartiyal. A prosecution witness, Fartiyal told the court that three initial suspects - Thadarai, Mandal and Kumar - had admitted to the CBI that they had committed the crime.

Will this be the defence big breakthrough that could provide the court with reasonable doubt of a third party involvement? Fartiyal was part of the first CBI team headed by Arun Kumar that investigated the case for the first 15 months. The investigation was then handed over to another team headed by Neelabh Kishore in September 2009.

Five, a big gap in the prosecution’s case is that no male DNA was found in Aarushi’s room. This was borne out in the forensic expert’s testimony and the CBI has admitted as much in its closure report. This calls into question the basis for the CBI’s theory that Hemraj was killed in Aarushi’s room. (In the CBI’s closure report, first on the list of ‘major shortcomings in evidence’ was that “no blood of Hemraj was found on the bed sheet and pillow of Aasushi. There is no evidence to prove that Hemraj was killed in the room of Aarushi.”)

Six, the opinion of a London-based DNA expert could weigh in favour of the defence contention that there is no forensic evidence implicating the Talwars.

In his testimony, defence witness Andrei Semikhodskii told the court that forensic expert produced by the CBI B K Mahapatra’s DNA reports had not been prepared as per standards of the international forensic community and that the forensic expert had “not connected the accused with the crime in any DNA report.”

Seven, the most sensational deposition of all during the trial was of that of CBI officer A G L Kaul who led the investigation by the second CBI team. He told the court that the decision to file a closure report was not his but that of his senior Neelabh Kishore. He told the judge that while he was in favour of filing a chargesheet naming Rajesh, Nupur, Dinesh Talwar and Sushil Chaudhary, Kishore was of the opinion was that there was not enough evidence against them and that the case be closed.

He also told the judge that while he wanted to arrest Nupur Talwar, he was denied permission to do so by his superior Kishore.

Eight, the report of the Hyderabad-based Centre for DNA Fingerprinting and Diagnostics (CDFD) to which the CBI had sent samples seized during investigation showed that Hemraj’s blood had been found on a pillow recovered from the Krishna’s room. This was the single-most crucial piece of forensic evidence in the defence’s favour. The CBI, however, called it a ‘typographical error’.
SPR Prasad, a scientist from CDFD, told the court that he had received a letter from the CBI in March 2010 seeking a clarification “as it seemed that there was a mistake.” Prasad told the judge that on checking, it was found that there was “a problem in the chronology of items that were documented and their code numbers had been mixed up.”

The 15-month-long trial has seen Talwars repeatedly come up against courts rejecting their petitions to gain access to evidence that could help their defence and pleas to put on record evidence that they believe could point towards the involvement of outsiders. Their petitions and repeated appeals in higher courts have, however, on many occasions led to strong rebukes by judges for using delay tactics.

Most recently, the Supreme Court while dismissing (on October 8) their plea to put on record brain mapping, narco-analysis and polygraph reports of Thadarai, Mandal and Kumar, observed that the Talwars were “adopting dilatory tactics at every moment”.

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