Trial Judge “Unmindful of Law”: HC Tears Apart Talwars’ Conviction

After acquitting the Talwars, the High Court spent over three pages criticising the trial court’s judgement.

File picture of Aarushi’s parents Rajesh Talwar (R) and Nupur being taken to a court in 2013.

(Photo: Reuters)

It is not uncommon for decisions of lower courts to be overturned on appeal. Sometimes, it can be that the courts have different views on an ambiguous provision in the law, which leads to the change. At other times, there are facts which can be interpreted in different ways that lead to the reversal. This is part and parcel of legal practice.

What certainly is uncommon, however, is for a High Court to not just overturn the decision of a trial court, but then spend over three pages criticising the judge who wrote that decision, with eye-watering takedowns peppered throughout such as:

• “It is apparent that the trial Judge was unmindful of the basic tenets of law…”
• “The entire judgment is on the whole creation of fanciful reasoning…”
• “It appears that the trial Judge was unaware of the solemn duty cast by the law as the Judge…”

The Allahabad High Court Throws Some Serious Shade

The main judgment – acquitting Rajesh and Nupur Talwar and overturning their conviction by the special CBI court in 2013 – had already been written by Justice Narayana, and Justice Arvind Kumar Mishra agreed to it in its entirety.

So why then did Justice Mishra take the extraordinary step of writing a separate (but concurring) judgment adding his reflections on the “style and approach” of the trial judge?

Also Read: Trial Court Judge Acted like a Film Director in Aarushi Case: HC

The answer lies in how terrible the decision of the trial judge was, full of inexplicable jumps of logic that had nothing to do with the evidence submitted, and seeming to indicate that he had pre-judged the case emotionally.

This is not just my personal opinion, but was mentioned specifically by Justice Mishra who noted that:

It can by no means be denied that the trial Judge, perhaps out of extra zeal and enthusiasm and on the basis of self-perception adopted partial and parochial approach in giving vent to his own emotional belief and conviction and thus tried to give concrete shape to his own imagination stripped of just evaluation of evidence and facts of this case.

For those who had read the trial court judgment convicting the Talwars, this should not come as too much of a surprise. It was nonetheless a relief to see that the High Court was able to appraise the evidence so dispassionately, and so lucidly explain why the CBI had failed to prove that the Talwars were guilty.

Also Watch: First Time in 9 Years, We’ll Celebrate Diwali: Aarushi’s Granddad

The Baseless Allegation That Aarushi and Hemraj Were Caught in a ‘Compromising’ Position

In a case based purely on circumstantial evidence, such as this, it was essential for the prosecution to prove the motive behind the Talwars’ killing of Aarushi and Hemraj. Speculation abounded in the aftermath of the murder, and the wildest ideas were bandied about.

It is not perhaps surprising that the media latched on to the prurient theory that the case was an example of an honour killing, that Rajesh Talwar was provoked into killing Aarushi and Hemraj after discovering them engaged in a sexual act. What was surprising, however, was that the investigating agencies should so fervently believe it, and then go so far as to build their entire case around this theory.

Also Read: Fraught with Emotion, Family and Friends Laud Verdict on Talwars

And yet, not only did the prosecution proceed to trial with this theory at the centre of their chain of circumstantial evidence, the trial court also accepted their argument without question.

All of this, despite there being no evidence in support of this theory, whatsoever.

The High Court dealt with the question of motive right at the start of their assessment, looking at all the evidence on record, and eventually holding that the prosecution failed to prove the motive for the murder. But what makes this all horrifying are the lengths that the CBI went to to try and make the motive stick, whether by ignoring the prosecution’s own evidence to the contrary, or making material additions to the testimony of their witnesses.

• First off, the theory officially became part of the investigating case in October 2009, based on a finding in the crime scene analysis and reconstruction report of Dr Dahiya that Hemraj’s blood was found on Aarushi’s pillow. But there was no basis for this finding – in fact the forensic report dated 19 June 2008 and the closure report dated 29 December 2010 both expressly found that no blood of Hemraj was found on her pillow, bed sheet or anywhere else in her room. The trial court nonetheless accepted that Hemraj had been killed in Aarushi’s room.
  
• Secondly, the prosecution’s claims that Aarushi and Hemraj had had sex just before being killed were glaringly absent from the post-mortem reports and no less than the first three statements of both the doctors who conducted the post-mortems. The subsequent testimonies of these doctors included all sorts of embellishments to prove the claims that both had had sex, which one of the doctors — Dr Dohre, had the temerity to say were a matter of subjective findings! And yet once again, the trial court accepted the modified testimony without question, despite detailed rebuttals by the defence lawyers.

The Tutored Testimony of Bharti Mandal – That Didn’t Even Prove Anything

The structuring of witness testimonies to suit the prosecution narrative was not restricted to the doctors. The most important part of the prosecution case, even more important than motive, perhaps, was the allegation that when the Talwars’ maid arrived at the house in the morning of 16 May 2008, she found that the door to the flat was locked from inside. Given that there were no signs of forced entry, if the house was locked from inside, it naturally followed that nobody else could have committed the crime except for the Talwars, as they were the only other two persons present in the flat.

To prove this, however, the prosecution had only one witness, the maid Bharti Mandal. That wouldn’t have been a problem of course, if her testimony had been sound and clearly established what the prosecution wanted. However, as the High Court found, this was absolutely not the case.

The cornerstone of Mandal’s testimony was that when she reached the Talwars’ flat at 6 am on that morning, she touched the outer iron mesh door to get into the house, but this did not open. The fact that this testimony appeared in her statements for the first time only in the trial court was itself fishy, but as the High Court noted, the Talwars’ lawyer didn’t prove a contradiction on this point as required by the Evidence Act.

Also Read: Aarushi-Hemraj Murder Case: Here Are Those Involved in the Mystery

Even so, at no point did she testify that the door was actually locked, and prosecution witnesses in fact testified that the door did not open easily, and required force to open it. This itself gave the High Court reason to believe that her testimony was inconclusive. On top of this, in her own testimony she also asked Nupur Talwar for the key of a door inside the outer mesh door — which would make no sense unless she could get past the outer door.

But what put the final nail in the coffin on Mandal’s testimony was the fact that in her own evidence, she had stated that, “whatever was taught/explained to me, the same statement I have stated there.” This was her actual testimony in front of the trial judge, and he still accepted her sole testimony as proof that the flat was locked inside.

The High Court, unsurprisingly, took exception to this and observed that this indicated that:

Bharti Mandal is a tutored witness and whatever incriminating facts were stated by her in the Court for the first time were taught/explained to her. Her testimony therefore is fraught with serious suspicion to sustain the proposition that Talwars’ household, when Bharti Mandal had arrived there in the morning of 16.5.2008 at about 6 A.M. was locked/latched from inside.

Ignoring the Krishna Angle – Despite the Prosecution’s Own Evidence

Anyone reading the High Court’s summary of the evidence produced by the prosecution would find the Talwar’s trial bearing much semblence to the cruel hopelessness of Kafka’s The Trial.

The prosecution’s own witnesses and reports list out point after point indicating the presence of people apart from the Talwars and Hemraj in the flat that night.

There’s the multiple glasses and the bottles of Sula wine and Kingfisher beer found in Hemraj’s room. There’s the khukri with specks of blood and bloodstained purple pillow cover obtained from the separate residence of Krishna, Rajesh Talwar’s assistant at his clinic. There’s the narco-analysis and the polygraph tests conducted on Krishna (at AIIMS and the forensic lab in Bangalore) that hinted at his presence in the house on the night of the murder along with Rajkumar and Vijay Mandal.

Despite all of this being recorded in the prosecution’s own evidence, the CBI insisted that no alternative theory as to how the murders took place was possible. And yet again, the trial court bought this, and allowed the CBI to justify even the most absurd things.

One of the biggest blows to the prosecution’s argument, was the fact that the pillow cover seized from Krishna’s room had Hemraj’s blood on it. The special Hyderabad forensic laboratory that found this meticulously noted this down in its report in 2008, and sent back sealed, labelled packets of evidence.

Also Read: Aarushi-Hemraj Murder: Nalini Singh - ‘CBI Ignored Key Evidence’

Nearly three years after this, after several other CBI investigators and he had found no problem with this report, AGL Kaul decided he needed to go to Hyderabad and submit a letter to the lab informing them that they had mixed up exhibits from Krishna’s room and the Talwars’ house. It just so happened that if this were true, the purple pillow cover would have been found in the Talwars’ house, which fit the CBI narrative. The lab promptly responded that Kaul’s observation was correct. After three years. Without any explanation as to how the error crept into these and only these pieces of evidence.

The High Court suspected the bona fides of this clarification because according to the prosecution’s own witnesses, the evidence packets had been tampered with, and because Kaul had no reasons for saying why he thought there had been a mixup.

The trial court, of course, thought this was all perfectly ok.

The Illegal Shifting of the Burden of Proof on to the Talwars

The final error found by the High Court to have been committed by the trial court was the latter’s use of section 106 of the Indian Evidence Act to shift the burden of proof in the case on to the Talwars. Under this section, if any fact is within the special knowledge of a person, the burden of proving that rests on that person.

The prosecution argued that since the Talwars were the only other people in the flat the whole night, what happened in the flat was within their special knowledge, and so the Talwars needed to conclusively prove that someone else killed Aarushi and Hemraj.

Even someone without a law degree will understand how this flies in the face of the very foundation of our criminal justice — that you are innocent until proven guilty, and that the prosecution has to prove that you are guilty beyond reasonable doubt, not the other way around. This is as basic as it gets when it comes to understanding the legal system.

The CBI judge, of course, completely agreed with the prosecution and found that the Talwars were guilty because they failed to prove what had happened in the flat that night.

Also Watch: Not a Day of Joy Since Aarushi Died: Nupur Talwar in an Interview

The High Court obviously dismissed this argument, holding that not only was it not true that the Talwars had special knowledge (given all the evidence to support the theory that others were present in the flat on the night), but that even if there were insufficient evidence to show that others could have been in the flat and committed the crime, the burden of proof would only shift to the Talwars if the prosecution case had been watertight. Which it wasn’t, on the basis of their own testimony.

The Trial Judge Was All of Us

From the aforementioned points, the trial judge’s decision to convict the Talwars appears, quite frankly, shocking. And this isn’t even everything. The High Court judgment includes meticulous refutations of several other arguments accepted by the trial court, including the utterly unfounded theory of how the internet router activity of the house proved the Talwars were awake, and the claim on which Rajesh Talwar was separately convicted, of making false statements to the police.

The basis on which these were rejected by the High Court? The prosecution’s own evidence, yet again.

The ease with which the High Court arrived at these conclusions flow from the same evidence, raises the serious question of how exactly CBI judge S Lal believed that the evidence proved the Talwars guilty. The conclusions he reached are inexplicable, and in some cases seem illegal. But we must not forget the role played in this by the ineptitude of the Noida police, the manipulativeness of the CBI, and the shameful witch-hunt carried out by the media that spread lies and falsehoods based on no evidence whatsoever.

Also Read: How TV News Destroyed the Aarushi-Hemraj Case

And, in many ways, the role played by all of us.

All of us glued to our television sets, all of us who eagerly read each new newspaper report, all of us who clicked on link after another sordid link about the case, we all contributed to trial court’s baseless findings. Our morbid fascination spurred the media on to concoct gossips about illicit sexual relationships. Our zeal to see someone punished for the gory murder helped the CBI modify testimonies and evidence to fit an easy narrative. And it was our willingness to condemn the Talwars for bogus reasons rather than any actual proof, that was reflected in the trial judge’s decision to convict.

The crucial distinction, of course, was that we are common citizens, while the trial judge was, well, a judge. His very human failings were understandable, but had enormous ramifications, and that is something we cannot have in a justice system.

But if we are to stop such miscarriages of justice from happening in the future, we would do well to look within all of us, and think hard and long about how we all failed Aarushi and Hemraj ourselves.

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