02 December 2013 National aarushi case

The Jury Is Out There Somewhere

Perfect murder or perfect botch-up? Whatever the verdict on the Aarushi case, it stand out as a reflection of the lynchmob mentality of the media as well as the public
The Jury Is Out There Somewhere
The Jury Is Out There Somewhere
outlookindia.com
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“They say all the world loves a lover—apply that saying to murder and you have an even more infallible truth.”

—Agatha Christie

People are more likely to be killed by someone close to them rather than by strangers. And yet, when a vivacious teenaged girl, born of a love match between a Maha­rash­trian mother and a Punjabi father, was found dead on her own bed, and the domestic help’s body found on the terrace, it took time for the theory to be advanced that the other two occupants of the flat in Jal Vayu Vihar in Noida—the parents of the 14-year-old—were the culprits. But then murders are rarely perfect, and as a Her­cule Poirot would point out, what appears obvious is often not the truth. Or is it?

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Nothing fascinates or titillates people as much as a cocktail of murder and sex. And for the last five-and-a-half years, the country has watched transfixed and with a disconcerting voyeuristic glee the twists and turns in the trial. The trial has divided people and led to sharply divergent opinions. So vitiated has the trial been that no verdict is likely to satisfy all sides. One can only imagine the pressure on the trial judge, who has the thankless task of reconciling facts, weigh the evidence and possibly even the very judgemental public mood that prevails before deciding the fate of the parents, the dentist couple Rajesh and Nupur Talwar. A botched-up investigation, flip-flop by witnesses and forensic labs, and a voracious and often irresponsible media have ensured that doubts will persist on whether justice has fin­ally been done, no matter what the verdict on November 25 is. A fair trial and competent investigation should have been enough to put an end to endless public debates on who actually was guilty. But while the CBI court is expected to provide only the first of a series of verdicts in the case, the trial has raised disturbing questions about how society responds to crime, how it jumps to widely contrary conclusions, how opinion is built, how criminal acts are investigated and how trials are conducted. None of the institutions‚ neither the police or the CBI nor the media or the medical fraternity—come out favourably. It would appear that all of us are complicit in the crime of killing an innocent girl a week short of her 14th birthday.

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“Instead of building a case through irrefutable evidence, they have built one through speculation. As citizens, we have reasons to worry. This case is not about the Talwars, it is about living in a just and fair society.”
Shohini Ghosh, Professor, Jamia Millia Islamia

As another spell of media frenzy builds up this week ahead of the verdict by the CBI special court in Ghaziabad, filmmakers in Mumbai have been busy announcing projects on the ‘seriously’ salacious story. He did not require anyone’s permission, stated Kamaal Rashid Khan in 2011, to make a film which showed the parents guilty. It was based on the version of the investigating agencies, he said defiantly, when reminded that the trial was still on. Manish Gupta this month announ­ced another film on the same subject, tentatively titled Rahasya. Teen­age sex, peer pressure and stressed relations with parents, he added righteously, deserved to be filmed for public awareness. Milan Luthria and Karan Kashyap are among the others who are planning to make films on the life and tragic death of Aarushi, and ostensibly for much the same reason, that is making the public ‘aware’. It is all altruistic, not really commercial or voyeuristic, they would have people believe.

On the police, the less said the better. On the day the twin murders were discovered, the Uttar Pradesh police failed in their first duty, of securing the crime scene. The Talwars were allowed to stay on in the same flat. Aarushi’s body was returned to the flat after the autopsy. Blocks of ice were brought in to delay the decomposition of the body. Neigh­bours, strangers, media and policemen freely stomped around the flat, destroying any chance of collecting crucial forensic evidence. There was no yellow tape screaming ‘police’ or ‘keep away’. And nobody has paid any price for the criminal lapse, barring the dentist couple.

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“The media collaborated with the CBI as its B team. Rather than act as watchdogs, they opted for sensation. It was far from a perfect murder. There were enough clues. The investigators botched up.”
Rebecca John, Defence lawyer

Curiously, the police also failed to detect the body of the domestic help, Hemraj, lying all the while on the terrace and exposed to the sun. Their alibi was that they asked for the keys to the terrace and Dr Rajesh Talwar did not give them the keys. In any other country, the police would have picked the lock or broken down the door. Here they did nothing of the kind; a policeman actually telling the court that he was instructed to do so but forgot to do it. Again, the department initiated no action against this dereliction of duty. Instead, this bit of incompetence bec­ame circumstantial evidence against the parents, who were said to have knowingly denied the police access to the keys—at least that’s what it seemed now. Not surprisingly, the police and the second CBI team refused to buy the defence plea that Hemraj used the terrace, the keys were kept by him and with their daughter murdered and a hundred strangers swarming all over their flat, the keys were far from the parents’ mind. But a plausible line of theorising had willy-nilly been suggested—and it would stick!

In another twist, within weeks of the CBI taking over the case, it claimed that the UP police were misled and fed with the sexual escapade theory by Dr Tal­war’s assistant, Krishna. The bureau’s Arun Kumar addressed a press conference (see box) and said that a psychoanalysis had found the assistant to be aggressive, disloyal, prone to lying and deception. In subsequent polygraph and narco tests, conducted with the court’s permission, he confessed to have killed Aarushi and Hemraj. Based on his statement, the CBI raided his house and seized a khukri and a pillow among other thi­ngs, both with blood stains. But the CBI rubbishing the story put out by the UP police and informing the court that there was no evidence against Rajesh Talwar, also in 2008, has long faded from memory.

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The second CBI team refuses the defence plea that Hemraj used the terrace and so the keys were with him.

“There’s been public enthusiasm of the wrong kind. It’s the nature of society. The way the police declared the parents guilty right at the beginning before the investigation was over prompted people to pre-judge the verdict.”
Dipankar Gupta, Sociologist

Television producer Nalini Singh remembers the visit of a CBI inspector to her office in July 2008. He wanted to know what her Nepali channel—Nepal 1—had put on the air around the May 15-16, 2008 ,midnight. The law requires channels to preserve records for 90 days and it could therefore be confirmed that two repeat programmes of popular songs were on air. The inspector then asked if a particular song was part of the bouquet and she confirmed it was. One of the domestic helps, she was told, had confessed to the crime and claimed that while drinking in Hemraj’s room, he was watching the channel and humming this song. To Nalini Singh’s surprise, though, the inspector never deposed before the court and the agency glossed over this finding.

The doctors associated in the case botched up as well. Dr Sunil Dohare, who conducted the post-mortem on Aarushi’s body at 12 noon, in his report mentioned the presence of a whitish fluid in the vagina, slides of which were made and sent for tests to the forensic lab. No trace of sperm was found. No Abnormality Detected (NAD), wrote the doctor. The same year, a medical board comprising seven doctors, most of them from aiims but including Dr Dohare, was constituted. Their report too made no mention of any evidence of sexual assault or any abnormality in the genitals. However, in a statement given to the Investigating Officer in 2010 and later in his deposition in court in 2012, Dr Doh­are claimed that the vagina was unusually large, that he could see the cervix, that the flow of the fluid was unusual and that the vagina had been manipulated after her death. Why had he not recorded his findings earlier? Because they were subjective, he said in court.

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“Media played a positive role in pursuing my sister’s murder. In some cases it can backfire, though. Something definitely seems amiss because the way the case has been handled seemed odd right from the beginning.”
Sabrina Lall, Jessica Lall’s sister

If his second thoughts are accepted as the truth, the mere suggestion of the vagina having been manipulated after death would have normally indicated the role of outsiders. But the Investigating Officer believed the manipulation to have been done by the parents to clean up the private parts and remove traces of any sexual activity. But could they have possibly removed the sperm and not the whitish fluid recorded by the doctor?

Then, the clothes the parents had on the fateful night should have been an important exhibit. But although they were confiscated and carried blood stains, they have not been given much importance during the trial. Was it because the defence claimed that the Talwars, when they discovered their daughter lying in a pool of blood, hugged her in grief and the clothes would have shown up Aarushi’s blood and not Hemraj’s? There is no answer yet.

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The ineptitude extended to the Centre for DNA Fingerprinting and Diagnostics, Hyderabad. The centre had examined two pillows, one seized from Hemraj’s room, the other from assistant Krishna’s. In 2008, it had reported that the pillow seized from Krishna’s room had blood stains that matched with Hemraj’s DNA. The pillow found in Hemraj’s room had no blood stains, ostensibly because he had been killed and his body left on the terrace and not in his room.


Friends of Aarushi A candlelight vigil at Jant ar Mantar on January 30, 2011, demanding justice for her. (Photograph by Fotocorp, From Outlook 02 December 2013)

“As a society we are too quick to judge and jump to conclusions. Everyone has skeletons in their closets but we hardly ever pause to understand the stress building up in individuals, which make them commit certain actions.”
Sadia Raval, Clinical psychologist, Mumbai

But when the defence pointed this out in court in 2011, after the papers were given to them, the Investigating Officer claimed that it was a typographical error on the basis of photographs which he had but which he did not share with the defence as per the law. Even more curiously, 10 days later the same officer camped in Hyderabad and wrote a letter to the cdfd asking them to find out if there had been a typographical error. A scientist from cdfd wrote back that there had indeed been such an error. How did the IO know of the error even before seeking the confirmation? And how did the scientist discover the error without taking a fresh look or testing the pillows again, which were in the custody of the Ghaziabad court as exhibits?

The media reinforced the prosecution claim that nobody but the parents could have been the killers. Shohini Ghosh, media academic, believes that despite the intense media glare on the case, there is little of what may be called an informed public opinion. “So convinced are some about the guilt of the parents that they see the trial not as a judicial examination of evidence to determine the facts but a legal formality that must necessarily culminate in conviction,” she wrote in The Hoot. Social media has been used extensively by the Talwars’ friends as well. A website (justiceforaarushi.com), a Facebook page, a Twitter handle (@Justice4Aarushi) and an online petition on change.org have been active for the past several months to argue their innocence.


Unfair trial? Talwars being taken to jail after being produced in CBI court

Somewhat sadly, the higher judiciary has also reinforced the perception that the trial is a mere formality. When the Talwars went to the Supreme Court against the trial court’s decision of not allowing them 13 defence witnesses, terming it as a “waste of time”, the apex court dismissed their plea and warned them that if they continued rushing to the Supreme Court every time they disagreed with the trial court, they would be liable to pay “exemplary costs”. With two people’s lives at stake, the defence in most countries would have been allowed to produce as many witnesses as they liked, legal experts point out. How could the court have possibly concluded in advance that it would be a waste of time, even before the witnesses were examined?

“Media certainly impacts the course of justice. It should realise the impact it can have on people, of speculating, of revealing too much, not just in this case, but also, say, during the Kargil war and 26/11.
Mukul Rohatgi, Senior advocate

Even more curious was the apex court’s observation that the Talwars’ petition appeared to be “a last-ditch effort to salvage a lost situation”. The die, many would say, had been cast. Would the trial judge go by the evidence or by the cue, one wonders.

At the heart of this ‘case’ seems to be the presumption that the Talwars were a prosperous couple, led bohemian lives and were alienated from their daughter. So insidious were media reports that the defence was forced to produce the gyn­aecologist who had delivered Aarushi to disprove the whispers doing the rounds: that Aarushi was not the Talwar’s biological child but an adopted daughter.

Rajesh’s father was a cardiac surgeon while his wife’s father was in the air force. By all accounts, it was a happy family with Aarushi doing exceptionally well in school, taking part in extra-curricular activities, attending dance classes and turning out to be a voracious reader, reading books by Khaled Hosseini and Jhumpa Lahiri. Photographs taken hours before her death, with a camera gifted that evening by her father, showed no sign of stress or alienation. But the script had already been cast in stone.

Indeed, several leading lawyers believe the trial was vitiated and that was one of the reasons why Harish Salve, Mukul Rohatgi, Pinaki Misra and defence lawyer Rebecca John decided to work pro bono and did not charge the Talwars any fees.

The suspense-filled trial reminds one of Basu Chatterjee’s 1986 film Ek Ruka Huwa Faisla, an adaptation of the Oscar-winning 1957 American film, Twelve Angry Men. A teenaged boy is charged with murder and the evidence is loaded against him. There are eyewitnesses and the murder weapon links him to the crime. A guilty verdict appears inevitable when the 12 jurors retire for what seemed to be a short, unanimous and guilty verdict. But as a juror hesitantly, and to the great annoyance of others, voices his doubts, an angry discussion follows till all 12 of them return a ‘not guilty’ verdict.

***

The Questions CBI Has No Answers For

Scene Dressed Up: The Central Bureau of Investigation informed the court that the parents had dressed up the crime scene. But that does not conceivably explain why they would leave a blood-stained whisky bottle on the table or blood-stained palm and foot prints on the terrace as well as blood-stained bottles in Hemraj’s room.

Mobile Phones: Who took the mobile phones of the deceased out of the house? The police found Aarushi’s mobile a year-and-a-half after her death. It was allegedly picked up from a ditch but not used for over a year. Hemraj’s mobile was found active in Punjab, the court was told. But no investigation was carried out on how it reached there.

Golf Clubs: CBI claimed golf club no. 5 (exhibit no. 6) was used to kill Aarushi and Hemraj because it was cleaner than the rest and appeared to have been scrubbed. The forensic report held that the golf club had negligible traces of soil and was dirtier than the rest. During the final argument, CBI told the court that the weapon was actually golf club no. 4.

Murder Weapon: First believed to be a hammer and knife, which were never found. A khukri was seized from Talwar’s assistant Krishna’s house and a team of seven AIIMS docs agreed it could have been used to slit throats. But the khukri was never sent to CDFD, Hyderabad. CBI told the court the blood stains on it were made by human blood.

Two Pillows: One was seized from Hemraj’s room and the other from Krishna’s. CDFD in its report stated that blood stains on the pillow seized from Krishna’s room matched Hemraj’s DNA. The other pillow had no blood stains. CBI claimed it was a typographical error and the description had been interchanged and remained undetected for over two years.


By Uttam Sengupta with Neha Bhatt, Priyadarshini Sen and Prachi Pinglay-Plumber

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