Aarushi Murder: What Were the Issues That Led to the HC Acquittal?

Can the Talwars convince the Allahabad High Court to overturn their convictions for the infamous double murder?

Nupur and Rajesh Talwar were convicted of murdering their daughter Aarushi and servant Hemraj in 2008.

(Photo: PTI)

On 12 October 2017, the Allahabad High Court acquitted Dr Rajesh Talwar and Dr Nupur Talwar for the double murder of their daughter Aarushi and servant, Hemraj, on the night of 15 May 2008.

In November 2013, a special CBI court in Ghaziabad had convicted the Talwars of the double murder of Aarushi and Hemraj, and sentenced them to life imprisonment. Rajesh Talwar was also convicted under s. 203 of the Indian Penal Code (IPC) for giving false information about an offence.

The Talwars appealed against the judgment of the court, with hearings initially concluded in January this year, though additional hearings were required in August to clarify what the court considered contradictory statements by the CBI, which had been later assigned the investigation after a number of high-profile mistakes by the Noida police.

But what did the High Court’s decision need to consider? And what was expected from their verdict?

What was the Case Before the High Court About?

The High Court did not conduct a re-trial of the case. The proceedings before the division bench in Allahabad were in appeal against the decision of the trial court, so there was no need to re-examine witnesses and it was only possible to provide new or fresh evidence in very limited circumstances.

Also Read: Aarushi-Hemraj Murder: Nupur and Rajesh Talwar Fight on From Jail

As a result, the arguments by the Talwars in the case would have centred on how the trial court erred in reaching its conclusions, and why the prosecution actually failed to establish beyond reasonable doubt that they killed the victims. While the burden of proof in a criminal case is on the prosecution, on appeal the accused needs to show the original decision was wrong – this does not of course mean that they have to prove their innocence, but just demonstrate that what happened in the lower court was incorrect.

The respondents (the CBI, here) would have argued that there was nothing wrong with the trial court’s decision, and that the evidence does indeed show that the Talwars committed the double murder beyond reasonable doubt.

What was the CBI's Case Against the Talwars?

The prosecution case at the original trial was built around circumstantial evidence - indirect evidence which is used to infer certain conclusions from facts and circumstances.

The prosecution sought to show that Dr Rajesh Talwar and Dr Nupur Talwar were present in the flat at the time, that there was no forcible entry into the house, and that nobody else could have entered the flat and left the doors and locks closed in the way they were. The nature of the locks, the switching on and off of a wifi router, and other such details were used to establish this.

Having done that, the prosecution had then argued that Aarushi’s parents found her in a compromising sexual position with Hemraj, following which they killed them both. The way in which the parents reacted, as well as allegations of how Aarushi’s body and the crime scene had been cleaned up, were used to buttress this claim.

The weapons used to commit the murders – alleged to be a golf club to cause head injuries, and a scalpel to cut both victims’ throats, were said to be accessible to the accused as Rajesh Talwar was a member of the Noida Golf Course (one of his golf clubs was later found in the loft which had not been available initially during the investigation) and both the accused were dentists and therefore possessed scalpels.

Also Read: Justice Not Delivered: Ex-CBI Chief Vijay Shanker on Aarushi Case

Putting all these things together, the prosecution argued that the only way in which to explain what had happened on the night of 15 May 2008 was that the Talwars had killed Aarushi and Hemraj.

How did Rajesh and Nupur Talwar Defend Themselves?

At the trial, the Talwars raised a number of objections as to how the facts were put together to build a chain of evidence, and those same objections will have been raised during the appeal.

They also argued that a lot of evidence was ignored by the prosecution when building their case which not only disproved the prosecution case, but also suggested a different theory of who killed Aarushi and Hemraj.

Also Read: Former Aarushi Case Investigator Breaks Silence on TV

This included evidence indicating that Rajesh Talwar’s assistant Krishna and his friends had been present at the flat on the night, and after drinking, tried to sexually assault Aarushi, failing which they killed her and Hemraj, who had tried to stop them.

This theory also sought to explain how it was possible for the house and the terrace (where Hemraj’s body was found) to be locked the way they were - which also would help put the prosecution’s contention that only the parents could have killed Aarushi, to rest.

Was it Possible for the Talwars to be Convicted Only on Circumstantial Evidence?

As pointed out already, and as the CBI judge noted in his judgment, there was no direct evidence in this case. Neither of the accused confessed to the crime, the murder weapon with their fingerprints was never found, and of course there were no eyewitnesses to the murders.

Criminal trials can proceed on the basis of purely circumstantial evidence, but for this to be sufficient, the evidence is subject to a very specific standard of scrutiny. According to numerous Supreme Court judgments:

in such cases, “the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against guilt is possible”.

The CBI judge listed five principles (what he called ‘Panch Sheel’) by which he would assess if the circumstantial evidence in a case meets this standard:

(1) The circumstances from which the conclusion of guilt is to be drawn – including motive, setting of the crime, the hypothesis of how it took place – should be fully established.

(2) The facts so established should only be consistent with the guilt of the accused – if there is any other way that the facts can be interpreted which shows the accused didn’t the commit the crime, the evidence would not be sufficient.

(3) The circumstances should be of a conclusive nature and tendency – which means that they can’t be mere speculation, but be founded in provable facts.

(4) They should exclude every possible hypothesis except the one to be proved.

(5) The evidence should leave no reasonable grounds to conclude that the accused were innocent, and that in all human probability the act was committed by the accused.

What Were the Big Questions the High Court Needed to Decide?

Following on from the test of when circumstantial evidence alone can be used to convict someone, the trial court had to consider two broad questions when deciding whether the Talwars were guilty or innocent:

Did the prosecution version of events establish all the facts that it relies on?

Is there any evidence that could possibly establish that someone else killed Aarushi and Hemraj?

The High Court needed to decide if the trial court answered these questions the right way - and if it didn’t, how should these questions be answered.

Did the High Court Find That Aarushi and Hemraj Were Intimate?

The prosecution was able to establish some basic facts beyond any question, such as the fact that the Talwars were present in the flat at the time of the murder. However, the rest of their story was not quite so clear-cut, including the very basis of the prosecution case.

The case against Rajesh and Nupur Talwar was based on the proposition that they were provoked into committing murder by the sight of their daughter in a compromising position with their servant. Everything alleged by the prosecution stemmed from this theory. However, none of the evidence presented actually established this theory – and yet it was fully accepted by the CBI judge.

No witnesses came forward to say that they knew of any relationship between Aarushi and Hemraj. There were no communications between Aarushi and anyone else that indicated that she and Hemraj had any sexual relationship. And most crucially, there was no evidence of sexual activity between Aarushi and Hemraj.

Also Read: “Aarushi Was Bubbly, Jumping At My House a Day Before Her Death”

The post-mortem reports did not indicate that Aarushi had engaged in sexual activity at the time, though a whitish discharge that was not semen was observed on her private parts – the report clearly stated that no abnormality was detected on her. This was sought to be explained away as tampering of the report by the doctors at the insistence of Rajesh Talwar’s brother. Some reports argued that Aarushi had engaged in sexual activity previously, but again, there was nothing which linked this to Hemraj.

There was also no proof that Hemraj had been killed in Aarushi’s room, as alleged by the prosecution – the CBI were found to have lied about finding Hemraj’s pillow in Aarushi’s room, despite which the judge still noted this as a finding of fact in his judgment.

In the absence of any proof on the crux of the prosecution case, it was difficult to see how the required chain of evidence could be established. This is likely to have be a key issue for the High Court to rule upon, which would have required a careful perusal of the medical records and the reconciling of a lot of contradictory reports regarding the same.

The Compounder Did It - Did the Talwars Manage to Establish an Alternative Theory?

The second major issue to be examined is whether there was any evidence that showed that the alternative theories of how the murders happened, were possible. While the Talwars did not need to prove any alternative theory, this becomes important because they need to blow holes in the prosecution case, including the argument that nobody else could have been inside the flat to commit the murders.

If the Talwars could demonstrate that there is a possibility that Krishna, Rajkumar et al committed the crime, one of the legs on which the circumstantial case stands would be knocked out – as mentioned earlier, the prosecution case has to be the ONLY possible way in which the crime was committed.

There was considerable controversy over the evidence regarding the alternative theory, and the prosecution had argued that much of it is neither admissible nor relevant, though the Talwars try to convince the High Court otherwise.

Didn’t Krishna and his accomplices admit to the crime?

Narco analysis of Krishna and his alleged accomplices seemed to indicate that they had committed some crimes, and at the very least were present in the flat on that night. The admissibility of this evidence became dubious after the Selvi case in 2010 where the Supreme Court held that such evidence violated an accused’s right against self-incrimination.

Also Read: The Curious Case of Narco Tests in Aarushi-Hemraj Murder Mystery

Even so, as it was the Talwars and not those persons on trial, an argument could possibly be raised that some evidence of the narco questioning could be allowed to support the Talwars’ case.

Didn’t Krishna have a pillow with Hemraj’s blood on it?

A finding by the CBI’s own investigators that Hemraj’s blood was found on a pillow at Krishna’s house was also ignored, and later sought to be explained by saying that there had been a typographical error at the forensic lab.

What Did the High Court Decide?

The High Court found that there was not sufficient evidence to justify the prosecution story, and they acquitted the accused. Prior to the acquittal, there were three ways in which the verdict could swing.

If they were convinced that the evidence about the alternative theory of the murders makes the other theory possible, again, they would have had to acquit the accused. The Talwars had reasonably strong grounds on which to question the decision of the trial court, as noted above.

One of the defining features of this case had of course always been the way in which the investigating agencies botched the investigation, and the biased manner in which the media helped build a narrative against the Talwars.

Also Watch: Righting the Wrongs in the Aarushi Talwar Murder Case

The lapses had actually led to the CBI finding that there was insufficient evidence to prosecute the Talwars, at which point they filed a closure report – which the Talwars themselves contested, saying that they wanted justice for their daughter and that other avenues of investigation were still open. Allegations of impropriety, including the coaching of the Talwar’s maid, and the dropping of witnesses suspected to damage the prosecution account, have also dogged the police.

An alternative to acquittal of the Talwars or upholding their conviction could also be the ordering of a retrial by the High Court, to ensure it is conducted fairly and in accordance with procedure.

The fact that the judges had to conduct a rehearing on the prosecution evidence because of contradictions it found in the CBI story, would favour the accused.

The court could have very well found that the evidence does stack up and confirmed the Talwars’ guilt.

Also Watch: Focus on Proof, Not Character, Says ‘Aarushi’ Author Avirook Sen

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