Lies & prejudice: how the Talwars were convicted without evidence

QUICK PILL

The tragedy

• Rajesh and Nupur Talwar\'s daughter and help were murdered.
• CBI prosecuted the Talwars, had them sent to prison for life.
• Journalist Avirook Sen has revisited the case in his book Aarushi.

The travesty

• Evidence against the Talwars was flimsy at best.
• The CBI refused to probe other suspects despite evidence.
• Incredibly, the justice system put the burden of proof on the Talwars.

More in the story

• Why the media pronounced the Talwars guilty even before the courts had.
• How the CBI manipulated evidence to incriminate the couple.
• Are India\'s forensic labs competent enough to assess evidence?
• Why did the courts admit outlandish arguments and flimsy evidence?
• Why the miscarriage of justice in the Aarushi case should worry us all.

A couple of years ago, I had an opportunity to interview the dentist couple Rajesh and Nupur Talwar.

They were an infamous pair. Five years earlier, they had been accused of murdering their 13-year old daughter Aarushi and 45-year-old house help, Hemraj, in a fit of rage.

Murder is a mild word. The victims had been bludgeoned, followed by a cold slitting of throats.

The couple had spent five years in and out of jail, as their case wound its tortuous way through the courts.

In June 2013, briefly, they were both out together.

I didn't quite know what to expect. The media had feasted on their story: turned them into caricatures. They were the monster parents it was okay to stone.

But the Talwars I met were starkly different from the reputation.

They were reserved, restrained and had only one plea. Could we postpone the interview and could I invest some time in actually studying their case instead.

People always want us to say our piece in a few minutes, they said. But the truth lies in the detail.

I sat a straight 10 hours that evening, poring over the prosecution case. And then: several days more.

What emerged was a truly dark story.

This has to rank as one of the most scandalous murder trials in recent history.

There have been many other miscarriages of justice in India - greater in scale, more sinister. But for sheer randomness, incompetence, casual perversity, nothing quite equals this.

On 25 November 2013, five months after I first met them, the Talwars were convicted of murder and sentenced to life imprisonment.

They are now incarcerated in Dasna jail, a mofussil off-shoot near Ghaziabad.

Rajesh runs a dental clinic for the inmates. Nupur, who is housed in a separate cell with 50 other women, wonders how to make time seem finite.

Their conviction is a terrifying study in absurdity.

In the months after I first reported on their story, I tried hard to get a range of people to re-examine the Talwars' case and assess it coldly on its merits.

It was a disturbing experience. There was a lot of vehement opinion. And a complete absence of facts.

Almost no one knew anything about the case. But they had made up their mind: the Talwars were the murderers.

For many others, the storm had passed. There was no interest in the debris.

This week, another journalist, Avirook Sen, has written a book on the case.

Aarushi, published by Penguin, is an important and meticulous piece of work. Sen attended almost every hearing in the trial. He is perhaps the only journalist in the country to have done so.

We both had a similar experience reporting on the story: we started out dispassionate observers, then were seized by a growing sense of shock.

The facts were too stark; the injustice too glaring.

How could two people lose their only child in the most gruesome way, then be falsely implicated for the murder on the clumsiest and most flimsy of grounds?

The travesty beats at one's conscience.

As a point of compassion, no two people should have to go through what the Talwars have.

But this case also has a much deeper significance for every Indian. If any of us are to be safe, investigations, legal processes and convictions have to be much sounder and fairer than what the Talwars have faced.

The first time I wrote on this, it was a ten-and-a-half thousand word story.

Sen's book offers a perfect window to put at least some of the most glaring facts out again.

The Talwars case has been blighted by misconceptions and prejudice from the first fateful moment that Aarushi and Hemraj's bodies were found.

It is impossible to vouch for anyone's innocence in a murder case. But one can safely assert that, seven years after the crime and two rounds of CBI investigation, there is still not one substantial piece of evidence to prove the Talwars are guilty.

Do read these baseline facts and check for yourself how they add up.

Closure report

• The Talwars could have been free today.
• In December 2010, the CBI had filed a closure report, in which they admitted they had no evidence or motive to nail the Talwars.
• They merely named them as suspects and moved to close the case.
• It is the Talwars who challenged the closure report and went to court to request a re-investigation, even though that would keep them in the spotlight longer as suspects. They wanted the actual culprits to be caught and clear their daughter's name from sexual insinuation.
• Does this seem standard ops for murderers? If they had indeed killed Aarushi and Hemraj, wouldn't the Talwars have sighed with relief that the case was closed and moved on?
• In a bizarre twist of fate, however, the magistrate threw out their petition. Instead of ordering a re-investigation, she ordered a trial.

Based on the CBI report that had said it did not have sufficient evidence against the Talwars.

Why did the Talwars become the sole accused?

• One of the reasons the Talwars became the prime accused is a piece of rudimentary - almost laughable - math: there were four people in the house; two ended up dead, so the other two must be guilty.
• But there is proof there were other people in the house that night: there were three booze bottles in Hemraj's room. Three servants - Krishna, Raj Kumar and Vijay Mandal - were the initial suspects.
• The CBI, however, discarded these suspects in its closure report. Its argument was that no servants would have the guts to be drinking in Hemraj's room while the master was in the house and possibly awake.
• Incredulously, in the same breath however, it was willing to to believe a 13-year-old would have intercourse with the domestic help, with her parents right next door, possibly awake.
• It is this flawed reasoning that trapped the Talwars into facing a trial in which the burden of proof shifted to them. They had to prove they were innocent, without being allowed to refer to any other suspects.

The murder weapon that was never produced

Contrary to the high-octane media coverage there was about 'golf clubs' and 'surgical scalpels', the Talwars were sentenced to life in prison without the murder weapon ever being conclusively established.

Here's how the story unfolded:

Khukri: At first, the murder weapon was said to be a khukri.

A seven-member expert committee from AIIMS agreed the injuries on both victims could have been inflicted by a khukri.

Explosively, the three servants, who were allegedly in the house that night, also took a narco test in which they spoke in graphic detail about killing Aarushi and Hemraj with a khukri and cleaning it.

Subsequently, the police raided their homes and a khukri was found in one of their rooms with tiny blood traces on it.

This could have helped crack the case.

Except, bizarrely, a serologist expert asserted the blood trace on the khukri was not that of a chicken, dog, goat, cow, buffalo - or human. However, he could not suggest what alternative species the blood trace might belong to.

Another DNA expert said he could not extract any DNA from it.

Why were the Talwars' guilty? Four people were in the house; two ended up dead, so the other two must be guilty

The Talwars pleaded that the khukri was a cardinal piece of evidence and should be sent to independent experts abroad, who might be able to crack the secret of the blood trace. But no action was taken.

Golf club: Instead, the murder weapon morphed into a golf club.

What is not commonly known, however, is that it is Nupur who volunteered information to the CBI about a missing club being found in the house several months into the investigation.

Again - is that standard op for a murderer? To voluntarily hand over murder weapons?

When the CBI received the set of clubs, it declared one of the clubs was minutely cleaner than the others - when examined under a microscope. This was deemed as proof that it had been cleaned by Rajesh after the crime.

Except for one telling detail: the club that was cleaner under a microscope was not the one the CBI had declared to be the murder weapon!

'Scalpel used by surgically trained people': In addition to the golf clubs, the ancillary weapon at this stage was supposed to be a 'surgical scalpel used by surgically trained people'.

This became a catchphrase in the media as it insinuated darkly that the Talwars were "surgically trained".

Truth is, when the trial began, the CBI never produced a scalpel as a murder weapon in court at all. It also tried to prohibit the Talwars from exhibiting one.

However, one of the Talwars' witnesses proved in court that the largest dentist scalpel is barely 6 mm long - enough to nick a gum, not slit a throat. At which point the scalpel theory too went out the window.

Kitchen knife: Finally, therefore, in the closing arguments of one of the most high-profile murder cases in the country, the prosecution suddenly speculated the murders could have been done with a kitchen knife.

Their clinching forensic rationale? Every household has one.

No motive for murder

The Talwars are said to have bludgeoned Aarushi and Hemraj because Rajesh found them in bed together in a 'compromising position'.

Consider this: Page 29 of the CBI's own closure report admits there was no trace of Hemraj anywhere in Aarushi's room: no blood, no skin trace, no semen, no hair. Nothing to show he had been killed in her room at all.

On the other hand, Aarushi's blood was splattered on the walls and had soaked the bedsheet.

If Rajesh had bludgeoned them both in bed, shouldn't Hemraj's blood have stained the sheet and wall as well? The CBI claims this was not there because the Talwars had "dressed the scene of crime".

The Talwars counter argument is: was Hemraj's blood in blue that they could selectively separate and clean all traces of his blood from the bed and walls, while leaving Aarushi's intact?

Also, if they were so careful to dress the scene of crime, why would they have left bloody palm prints and footprints on the terrace?

The moot point, however, is: if even the CBI admits there was no trace of Hemraj in Aarushi's room, the whole premise of a "grave and sudden provocation" - a euphemism for an honour killing -- falls through.

With that negated, there is no motive for the Talwars to bludgeon their child and domestic help to death.

What the narco analysis and lie detector tests threw up

Narcos are not legally admissible. However, they can be an important indicator for a line of investigation.

The Talwars and Hemraj's friends - Krishna, Rajkumar and Vijay Mandal - were put through several sets of narco analysis and polygraph tests.

What was suppressed in the media is that the servants showed deception in both their lie detector tests, while the Talwars showed none.

In the narcos, the aides also gave a chilling blow-by-blow account of the murders, their motives, and how they had done it - mentioning a khukri as the murder weapon.

You can read those exclusive extracts from Sen's book here.

They also mentioned they'd been watching Nepali songs in Hemraj's room that night. Journalist Nalini Singh, who ran a Nepali channel, corroborated that the songs were indeed playing at that time.

The Talwars, on the other hand, showed no sign of deception and absolutely no awareness of the crime.

However, inexplicably, Hemraj's friends were excluded from the ambit of the trial altogether. While the Talwars became the sole accused.

The forensic mess

There were several critical pieces of evidence at the scene of crime:

• a bloody palm-print on the terrace wall;
• a bloody footprint on the terrace floor;
• a whiskey bottle on the dining table;
• the booze bottles in Hemraj's room;
• Aarushi's bed sheets;
• the Talwars'clothes; the servants clothes.

Crucially, Hemraj's body had been dragged to a corner of the terrace and covered with a water-cooler panel. Presumably, this was the last object the murderer would have handled. But the police forgot to even secure that as evidence. (When asked about it during the trial, they said it was too heavy.)

However, the rest forms a substantial body of evidence.

Hemraj's friends spoke in graphic detail about killing him and Aarushi with a khukri. The police let them off

It is a frightening indicator of the level of forensic skills in India that none of the premier labs in the country have been able to extract any clues from this.

Again, running contra to their position as murderers, the Talwars have written dozens of letters to the CBI requesting them to send the material evidence gathered from the murder site for advanced testing to the US and the UK.

If they indeed were the murderers, this would put them at high risk as there are experts in the US who have cracked even 30-year-old cases. Rajesh linked the CBI directly to a couple of these experts.

Inexplicably, the CBI officer-in-charge steadfastly refused to act on the request.

The CBI cover-up

When Krishna's house was raided by the police, his pillow was found with a blood spot on it. This was sent to the forensic lab in Hyderabad, which confirmed the blood was Hemraj's.

Potentially, this was explosive proof that Krishna was at the murder site that night. But the CBI forgot to look at this report for almost two years.

In fact, they filed their closure report without knowing it existed. When the trial was ordered, the Talwars were given all the case papers. It is they who discovered the document lying amidst thousands of pages.

They rushed to High Court asking for the trial to be suspended and the investigation expanded on the basis of this material proof of someone else's involvement.

The CBI - caught on the back foot and deeply embarrassed - argued in court that this report, which they later admitted in cross-examination they had never seen, was just a 'typographical error'!

Both the High Court and the Supreme Court - in their wisdom - accepted this outlandish explanation.

The Talwars were left in a Kafkaesque position. They were the sole accused. They had to prove they were not the only people in the house that night.

But neither the trial court, High Court or Supreme Court were allowing them to put any evidence on record - either through witnesses or otherwise - that would help them demonstrate there were others at the crime scene that night.

The incriminating arm of the CBI

There are several other stark examples of hostility from the CBI team.

• Running counter to every principle of natural justice, the CBI lawyer tried to prevent the Talwars from being allowed a single defence witness. It would waste the time of the court, he argued. The court, in turn, disallowed most of them.
• When the CBI wanted to prove the Talwars had dragged Hemraj's body up to the terrace, they produced a witness who said he had seen blood on the stairs that fateful morning. It turned out he was a magistrate who lived 58 kilometers away but claimed he drove all that way every day for a morning walk in the colony.
• Both the post-mortem doctors changed their testimonies several times to suit the CBI's theories. Their original testimony had said there was no evidence of sexual activity either on Aarushi or Hemraj's bodies. With each amendment, however, their account changed drastically to suit the CBI officer's positions.
• By the time he had changed his reading for the seventh time, according to one doctor, Aarushi's vagina was so extended he could see her cervix.
• According to the other, Hemraj's swollen putrefying body was not the reason for his distended penis. Instead, it was a sign of interrupted sexual intercourse. When asked which scientific manual he had based this observation on, he replied he was drawing from the experience of his own marriage.
• None of these wild testimonies, however, compare with the recklessness of Dr Dahiya's report. Writing a reconstruction of the crime scene from faraway Gandhinagar in Gujarat, Dahiya let his imagination fly.

As I wrote at the time, he was like a Khap panchayat elder on speed. His report - full of inaccurate and far-fetched speculations - became the foundational coffin for the Talwars.

Dahiya based his entire report on the presumption that Hemraj was found in Aarushi's room. This was never reconciled with the CBI's own position that there was no sign of Hemraj in Aarushi's room.

Yet this major discrepancy was allowed to engulf the Talwars and swallow them alive.

Misconceptions about the Talwars

Many of the prejudices that gathered around the Talwars, at the time, came out of untested assumptions.

The most lethal one was the media's disgust that they did not make a more public spectacle of their grief. Nupur's stoic strength alienated television: she wasn't good visual copy.

This immediately translated into an assumption that she was not sad. Ergo, she was a cold-blooded killer.

Another common assumption was that Rajesh was awake at the time of his daughter's murder. The proof everyone cites for this is that the internet router in his room was 'going on and off' around the time of the murders.

The ludicrousness of this would seem self-evident. Why would a man who's just bludgeoned his daughter switch his internet on and off in the dead of night?

But set the rhetoric aside: few know that the router behaved exactly the same way in the presence of the police the next day. Even the CBI closure report acknowledges this. Yet it continued to haunt the Talwars in the public mind as proof of crime.

Another accusation thrown at the Talwars is: how could Rajesh not remember where the terrace key was? Was he trying to obstruct the police from finding Hemraj's body? It should not be hard to understand why a father who has just found his teenage daughter lying in a pool of blood can forget where a key is.

But what's more important to know is that the police - who had not lost a daughter - themselves forgot to break down the terrace door. It was the Talwars who insisted it be broken down in the presence of the police the next day. Strangely, this too was seen as a mark of their culpability.

The list of bizarre arguments is too long to recount. But there is one other seminal fact: One of the reasons the Talwars were accused of murder is that their middle door was supposedly locked from inside. Their maid Bharti Mandal testified that when she tried to push the door open in the morning, it didn't give.

The counter explanation to that is too long winded for this piece. But, crucially, Mandal has now told Avirook Sen that she never tried to push the door open. In her cross examination, she had also admitted that she had only told the court what she was taught to say.

It is on these flimsy grounds that two parents have been put away for life.

Their next course of action is to appeal the verdict in the Allahabad High Court. But this could take years. The court has cases pending from the 1980s.

In the short time I spent with the Talwars, I once asked them if they regretted not playing more to the gallery: it may have earned them some sorely-needed sympathy.

Nupur's reply is hard to forget. "When someone asks you how you feel about losing your daughter, how is one meant to reply? Should they not intuitively understand what it feels like? I wish I could pull my heart physically out of my body and show them, because I don't have the words to describe it."

The Talwars have sometimes contemplated committing suicide. But a small pact keeps them alive. They tell each other, they still owe it to Aarushi to fight.