What makes the judgement in the Aarushi-Hemraj case so controversial

While the judgement’s silence on the irreversible damage caused to the case and those involved by unprofessional investigating agencies and an irresponsible media is striking, its findings are what make it controversial.

Pallavi Polanki November 28, 2013 08:07:50 IST
What makes the judgement in the Aarushi-Hemraj case so controversial

Despite the dark and blundering record of the Noida Police and the CBI in handling the Aarushi-Hemraj murder investigation, the special CBI court in its the 204-page judgement delivered on Monday is silent on their failures and lapses.

Far from pulling up officers for their incompetence, negligence and botch-ups that led to crucial evidence being lost or ignored, the judgement applauds the prosecution for putting forward “a clinching wealth of circumstances from which the guilt of both the accused has been made out…”

There is no whisper in the judgement on the media circus around the case that unleashed an almost malicious campaign against the Talwars for spreading sensational unverified information that demonised the dentist couple to an extent that it became impossible for them to be seen in public.

While the judgement’s silence on the irreversible damage caused to the case and those involved by unprofessional investigating agencies and an irresponsible media is striking, its findings are what make it controversial.

In convicting Rajesh and Nupur Talwar of murdering their teenage daughter Aarushi and domestic help Hemraj, the special CBI judge has relied on a very contentious piece of testimony to arrive at the crucial conclusion that “no outsider came inside the house on the fateful night (the intervening night of May 15-16, 2008).”

This critical conclusion by judge is based on a testimony given by Talwars’ then maid Bharti Mandal, the first to arrive at the Talwar residence on the morning Aarushi’s body was discovered. Mandal, who had testified that the door was locked from the inside when she arrived, in no uncertain terms told the court during cross-examination that she had been tutored by the CBI.

What makes the judgement in the AarushiHemraj case so controversial

Rajesh Talwar after being sentenced to life imprisonment. Naresh Sharma/ Firstpost

The judge, however, had justified his unquestioning faith on Mandal’s ‘tutored’ testimony stating, “Bharti Mandal is totally illiterate and bucolic lady from a lower-strata of the society and hails from Malda District of West Bengal who came to Noida to perform menial jobs to sustain herself and family and therefore, if she has stated that she has given her statement on the basis of tutoring, her evidence cannot be discarded or rejected.”

Having thus justified the questionable conclusion that rules out the role of outsiders, the judgement proceeds to shift the burden of proof on the accused, contrary to the settled principles of law.

The judgement states that it "can reasonably be presumed that it is the accused and  accused only who have murdered the deceased and none else for want of giving evidence in rebuttal under Section 106 of the Evidence Act, which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

Reacting to this contentious aspect the judgement, defence lawyer Tanveer Ahmed Mir said, "Until now, there is no murder case where burden of proof has been shifted to the accused. This is unheard of and has probably never happened before. To that extent the findings deserve challenge."

"Section 106 of the Evidence Act is a very special provision which is connected to only knowledge of special facts. To what extent this provision can be stretched is something which shall be debated and we will lodge a challenge to this judgment on the basis of the findings that have been arrived at," he said.

The judgement also raises eyebrows for the readiness with which it makes certain assumptions that even the CBI has not made it in its arguments and is not supported by evidence placed on record.

For instance, in arriving at the finding that Sunil Dohre, the doctor who performed the post mortem on Aarushi’s body, “deliberately suppressed information”, the judgement states, “Although, Dr Dohre had only stated that Dr T.D. Dogra had told him that blood samples of the deceased Aarushi be taken but it appears that Dr Dogra had asked him not to mention in the post-mortem examination report about the evidence of sexual intercourse and this fact has been deliberately suppressed by Dr Dohre.”(emphasis added)

In another instance, the judgement proposes a rather fanciful theory that connects Rajesh’s ‘fondness for alcohol’ and his attempt to ‘frame’ the servants.

How? First, a little background.

As per evidence on record, the Noida Police on arriving at the Talwar residence on the morning Aaushi’s body was discovered had found and taken into possession from Hemraj’s room "a bottle containing Sula wine, one empty bottle of Kingfisher beer, and a bottle of sprite bottle."

The defence has argued the presence of alcohol bottles in Hemraj’s room suggested that he had company that night. Also, taken into possession by the Noida Police was a blood-stained Ballantine Scotch Bottle from the dining table in the living room.

Further, a prosecution witness KK Gautam, a retired Noida police officer who had visited the Talwar residence the following day, had told the judge that he had "seen two glasses with substance like alcohol in Hemraj’s room."

Given these facts, the judge goes on to speculate on how the bottles of alcohol could have wound up in Hemraj’s room.

"The accused Dr Rajesh Talwar has admitted…that he and his wife have been brought up in a very liberal atmosphere with modern outlook and…has stated that he takes alcohol at parties. However, in his written statement he has stated that whisky bottle should have been ordinarily in the cabinet. This answer itself suggests that Dr Rajesh Talwar is fond of liquor and he used to take liquor in his flat as he himself has admitted that whisky bottle must have been in the cabinet and not on the dining table and therefore, there is every possibility that whisky was taken by the accused Dr Rajesh Talwar."

"It is also possible that whisky bottle might have been lifted after wearing gloves. It is also possible that Sula wine may have also been taken by the accused when he was extremely and intensely in tension after committing the crime or it was partly made empty to show that Hemraj and his friends had consumed the liquor." (emphasis added).

That Rajesh might have placed half-filled liquor bottles in Hemraj’s room in an attempt to frame the servants is a fresh twist that the judge has deemed fit to add to the case.

What is also curious is judgment’s defence of Dohre’s credibility as a witness. Dohre, after having recorded his statement on five previous occasions made startling revelations regarding Aarushi’s private parts being “cleaned” for the first time in October 2009, one-and-a-half years after the crime was committed.

The judge argues that Dohre not mentioning this vital piece of evidence in the post-mortem report or his subsequent statements does not mean that his final "statement cannot be relied upon" because on previous occasions he may not have been asked specific questions.

But the judge is quick to dismiss the credibility of the defence expert witness – a former head of the forensic science at the All India Institute of Medical Sciences (AIIMS), no less, on the grounds that "he has displayed in his website that ‘lawyers can have our services for their clients for better interpretation of scientific evidence against or for their clients…" Thus, it becomes clear that he gives report in favour of the person from whom he charges fees irrespective of the merit of the case."

What is most inexplicable, however, is the certainty with which the judgement declares that “death of both the deceased has taken place inside the flat of the accused persons” despite DNA, fingerprint and serology experts – all CBI witnesses - testifying in court that no traces of Hemraj’s blood or fingerprints were found in Aarushi’s room or blood or bodily fluid of Hemraj on Aarushi and vice versa.

Justifying this finding, the judge states, "The prosecution cannot be supposed to give evidence of that fact which is impossible for it to be given because no eye witness except the accused persons was present at the time of the murder of the deceased persons. To repeat at the cost of repetition, in all human affairs absolute certainty is a myth and as Professor Brett felicitously puts it 'all exactness is a fake'"

Updated Date:

Find latest and upcoming tech gadgets online on Tech2 Gadgets. Get technology news, gadgets reviews & ratings. Popular gadgets including laptop, tablet and mobile specifications, features, prices, comparison.

also read

In Russia, they tore down lots of statues, but little changed in terms of what those monuments stood for
World

In Russia, they tore down lots of statues, but little changed in terms of what those monuments stood for

As the US boils with anger over police brutality and racism, the experience of Russia since the collapse of communism offers a cautionary lesson in the perils and disappointments of toppling monuments

As KP Oli prorogues Parliament in bid to hang on to power, a look at how Nepal PM finds himself in this position
World

As KP Oli prorogues Parliament in bid to hang on to power, a look at how Nepal PM finds himself in this position

Nepal's domestic politics is in some ways comparable to Bihar's internal politics: There are no permanent enemies and no permanent friends

Despite hundreds of crores spent on desilting, why Mumbai could still see flooding this monsoon
India

Despite hundreds of crores spent on desilting, why Mumbai could still see flooding this monsoon

The United States Trade and Development Agency (USTDA) has estimated that flooding in Mumbai between 2005 and 2015 losses caused losses worth Rs 14,000 crore.