Allahabad HC demolishes CBI: Witness was tutored and evidence tampered

The prosecution had also highlighted that the flat had been washed soon after Aarushi’s murder.

Ordering the release of Rajesh and Nupur Talwar, sentenced to life imprisonment four years ago by a special CBI court for the murder of their teenaged daughter Aarushi and domestic help Hemraj in May 2008, the Allahabad High Court has meticulously detailed instances of falsification of evidence by investigating agencies — ranging from “subjective findings” by medical and forensic experts to tutoring of a witness and planting of another, evidence tampering to “deliberate concealment” of evidence.

These instances, recorded by the High Court bench of Justices B K Narayana and A K Mishra in their 273-page judgment Thursday, span every crucial aspect of the case and its investigation — the motive of the crime, the murder weapon used, the possibility of people other than the Talwars being in the house at the time of the killings.

Postmortem report

The CBI had said that the motive behind the double murder was “grave and sudden provocation” after Rajesh Talwar found his daughter and Hemraj in a “compromising position”. But the High Court pointed out that though the report on the postmortem of Aarushi, conducted by Dr Sunil Kumar Dohre, did not contain even a “faint indication” that she was subjected to any kind of sexual assault, Dohre, in his deposition before the trial court, said her vaginal cavity had a whitish discharge, and the vaginal canal was visible because the opening was so visible, indicating manipulation during rigor mortis. CBI judge made mockery of law, acted like fanciful film director, says Allahabad HC

The bench found that Dohre’s testimony had “material improvements” based on “subjective findings which have no place in forensic science”. “The aforesaid description of the deceased’s vagina by Dr Sunil Kumar Dohre in his evidence recorded before the trial court was conspicuous by its absence not only in the postmortem report of the deceased which was prepared by him but also in his three statements recorded under Section 161 CrPC. In all his aforesaid statements, he had remained consistent with the finding recorded by him in his postmortem report, especially with regard to the genitalia of Aarushi.” It noted that Dohre was part of an expert committee of forensic science which looked at the postmortem reports of Hemraj and Aarushi, and the committee’s findings were consistent with Dohre’s original postmortem report.

Tutored witness

Relying primarily on the testimony of Bharti Mandal, the CBI attempted to prove the impossibility of anybody else being in the Talwar home. But the bench said her testimony during cross-examination indicated she was a “tutored witness”.

A maid employed by the Talwars, Mandal had arrived at the residence on the day of the murder at 6 am. As a prosecution witness, she told the trial court that she “put her hand on the outer grill door but it did not open”. The CBI said this indicated that the door had been shut from inside. The bench, however, pointed to a statement in her cross-examination where she said, “Whatever was taught/explained to me, the same statement I have stated.”

“The aforesaid piece of testimony of Bharti Mandal clearly indicates 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,” the bench said.

Planted witness

Sanjay Chauhan, the then staff officer of the district magistrate, said he had visited the Talwar home on May 16, 2008. He said he saw police vans outside while on a morning walk, and that there was blood on the “floor and the railing”. The bench said Chauhan was a “planted witness as the CBI has not been able to come up with any cogent answer to the query of the defence as to how the CBI came to know about the visit of Sanjay Chauhan to L-32 Jalvayu Vihar”. Chauhan had said in his testimony to the trial court that he had not spoken to police officers at the scene of the crime.

Murder weapon

The CBI had said that a golf club was used by Rajesh Talwar to strike the heads of Aarushi and Hemraj, after which their throats were slit using a surgical scalpel. But the bench said: “There is evidence on record showing that the golf club, which was handed over by appellant Dr Rajesh Talwar, was neither properly sealed nor kept in Maalkhana and the same had been tampered with.”

Deliberate concealment

The bench noted that the results of a sound test — it was conducted by CBI in June 2008 to check the claims of Rajesh and Nupur Talwar that they could not have heard sounds emanating from Aarushi’s bedroom where the murders took place — were “deliberately concealed from the cognisance of the trial court”. The bench said the test vindicated the claim of the appellants, and officials who were part of the test deliberately did not disclose the test with “oblique motives”.

Read | Opinion: Mistrial by the media

Others in house

During the trial, the defence counsel had argued that Hemraj’s blood was found from a pillow and pillow cover recovered from the room of Krishna, Rajesh Talwar’s compounder. He had earlier been arrested by CBI along with Rajkumar and Vijay Mandal but they were released later. The defence had said that this clearly indicated that Krishna and Hemraj were together on the night of the murder, and there was presence of people other than the parents in the house. But the CBI had provided documents which suggested that the pillow and its case were found from Hemraj’s room, and there had been a “typographical error” in the report of the CDFD, Hyderabad.

The bench said the evidence suggested that “there was no possibility of any mistake” and that photographs of these two pieces of evidence produced before court had discrepancies. The court also pointed to the testimony of S P R Prasad of CDFD who, in his deposition to the trial court, said all 56 pieces of evidence were properly sealed. “He has also categorically deposed before the trial court that ‘all his seals have been broken, all his envelopes have been torn open and he cannot say who broke these seals, who tore open the envelopes, when this was done and why this was done’,” the bench said.

Internet activity

The trial court order said “Internet remained active on the night of the gory incident, suggesting that at least one of the accused remained awake” and noted there had been no power disruption. It said Aarushi’s bedroom, where she was found murdered, was separated only by a “partition wall” from her parents’ bedroom.

The High Court said the CBI’s own evidence rejected the version of events that the Talwars “knew nothing”. “The explanation that the appellants knew nothing as they were sleeping cannot be termed as no explanation and/or false explanation as from the evidence adduced by the CBI itself it was proved that if someone was sleeping in the Talwars’ bedroom with the air-conditioners on which were a bit noisy, it was not possible for them to have heard the sounds of moving footsteps, closing and opening of doors inside the Talwars’ flat. Thus, the trial court, in our opinion, committed a patent error of law in holding that the appellants were awake throughout the fateful night.”.

The bench said “it is not conclusively established that Internet activity noticed in the flat of the Talwars in the intervening night of 15th/16th May, 2008 was as a result of manual operation”.

Dressed-up crime scene

The trial court order noted that Hemraj’s body was “found lying in a pool of blood on the terrace… and the door of terrace was found locked from inside.” Further, the terrace door “was never locked prior to the occurrence” and the Talwars “did not give the key of the lock to the police despite being asked to give the same.” It also said that no outsider would “take the body… to the terrace” and an outsider wouldn’t “dress-up the crime scene”.

The High Court dismissed the theory that Hemraj’s body had been hidden. “The prosecution theory that the appellants had hidden the dead body of Hemraj on the terrace of their flat is patently absurd and improbable as it contemplates an assumption that the appellants had hidden the dead body on their terrace with the intention of disposing of the same upon getting a suitable opportunity which is based upon an impossible hypothesis that Noida police would not find the dead body on the terrace on 16.5.2008 itself.” It said the CBI had “miserably failed to lead any evidence which may even remotely suggest that Hemraj was murdered in the bedroom of Aarushi and then his dead body was wrapped in a bed sheet and dragged from Aarushi’s bedroom upto the terrace”.

The Noida police didn’t find the body due to “negligent and callous approach”. It said “non-breaking of the terrace lock door was not on account of non-availability of the key of the terrace door but due to the negligent and callous approach of the Investigating Officer of the case”.

The prosecution had also highlighted that the flat had been washed soon after Aarushi’s murder. The High Court said there was no evidence “indicating that either the Noida police or the CBI… either instructed or issued any notice in writing to the accused-appellants prohibiting any physical or structural alteration in the apartment”.