TALVAR :- AN INDICTMENT OF THE INDIAN LEGAL SYSTEM?
The Hindi movie ‘Talvar’ ,released on 02.09.2015, has
brought alive the ghosts of the infamous ‘Arushi Talwar- Hemraj’ twin murder
case of 2008 into public discussion again. On 16.05.2008, when 14 year old
Arushi Talwar was found dead in her bedroom in her Noida apartment, and when
the dead body of the domestic help Hemraj was discovered at the terrace of the
apartment next day, a new urban legend was born. The local Police, in their
zest to finish off the investigation and to cover up their follies, concocted a theory of ‘honour killing’,
suggesting that the father had killed both of them in rage upon finding them in
an ‘objectionable, if not a compromising
position’ , and the media lapped it up with salacious zeal shooting off perverse surmises regarding the
immoral lives of the affluent and the promiscuity of the teenager, with utter
disregard to the dignity and privacy of the deceased and the mourning parents.
After much hue and cry, the case was handed over to the Central Bureau of
Investigation, which discarded the ‘honour killing’ theory, and zeroed in on
three friends of Hemraj as the possible suspects. However, the investigation
team was changed in 2009, and the new investigation team re-adopted the theory
of ‘honour killing’, implicating the Dr.Rajesh Talwar and Dr. Nupur Talwar, the
parents, in the twin murders. In view of the utter lack of unanimity in the
reports of two investigating teams, the CBI filed closure report under Section
169 of the Cr.P.C stating that there was no sufficient evidence to proceed
against the accused.
However, the Talwars, in the eagerness to bring to book
the real culprits, filed a protest complaint objecting the termination of
investigation and praying for its continuation to catch the real culprits. In a
bizarre turn of events, the Special Judicial Magistrate(CBI), Ghaziabad, by
order dated 09.02.2011, rejected both the closure report and also the protest
complaint, and took cognizance of the offence, and issued summons to the
Talwars to stand trial as the accused. The trial of the offence, the cognizance
whereof was taken on the basis of a closure report citing insufficiency of
evidence, culminated in judgment dated 26.11.2013 of the Special Judge, CBI,
Ghaziabad, whereby both the accused were convicted for murder under Section 302
IPC and were sentenced to life imprisonment. While the accused are at present languishing
in the prison, waiting for their appeals to be taken up the Allahabad High
Court, the said movie ‘Talvar’ has been released, stating the unstated and
asking the unasked things in the trial and investigation. Before examining the
missing links highlighted by the movie, it is pertinent to consider the points
on which judgment was rendered by the learned CBI Judge.
Findings
of the CBI Judge
‘There were four
persons in the house at night; two were found dead in the morning; so the
remaining two must be culprits, if there is no evidence of entry by anyone else
at night’- The whole reasoning of the judgment is built up on
this simple hypotheses. At pages 191-193 of the judgment (judgment dated
26.11.2013 in Sessions Trial No. 477 of 2012, Court of Special Judge, CBI,
Ghaziabad), the grounds for arriving at conviction are enumerated. It notes
that the accused and the deceased were last seen together on the previous
night. There was no evidence of any forceful entry or intrusion by outsiders
during the night. The parents slept adjacent to the room of deceased Arushi.
Arushi’s room had an automatic click shut door, which can be opened from
outside only with a key. So entry to
the room of Arushi is possible only with the key, or only if Arushi lets the
door open from inside. The servant
Hemraj had a room adjacent to the entrance of the house, which had a door
opening into the apartment. At an earlier part of judgment, it is observed that
the both the deceased were found in the midst of a sexual act by the father,
and that acted as a sudden provocation for commission of the murders. The
testimony of the doctor performed the post mortem is relied upon to conclude
that the deceased girl was engaged in sexual intercourse.(Page 98). Thus, the
Court establishes the motive for the murders, which is a relevant fact in a
case built upon circumstantial evidence. Moreover, the internet router was also
found to be active during the night, suggesting that the parents were awake.
Also, a bottle of Bellentine Whiskey, which otherwise should have been present
in the Doctor’s cabinet, was left in the dining table with blood stains one it.
An outsider would not have dared to take the bottle from the cabinet and
consume from it after the commission of the murderous acts. The body of Hemraj
was placed in the terrace, and the door to the terrace was locked. The keys of
the terrace was in Hemraj’s room, and an outsider would not have been able to
locate it.
The testimony of Smt. Bharti Mandal, the maid-servant who
had come to the apartment in the morning, is given considerable weight.
According to her, when she came in the morning, she could not open the outer
mesh door, and she rang the calling bell many times. Then Nupur Talwar woke up
and came and stated that Hemraj must have locked the door from outside before
going out for fetching milk, and Bharti Mandal was asked to go down so that
Nupur could throw the duplicate keys from the balcony to her. When Bharthi
Mandal came up after fetching the duplicate keys, she could easily open the
mesh door with a simple push. From this the court took the inference that the door was only latched from inside,
and so as to misguide Bharthi Mandal, she was told by Nupur that Hemraj had
locked it from outside and that when Bharathi was down, Nupur had unlocked the
door from inside. So the conclusion was reached that the door was locked from
inside, and thereby the hypotheses of outsiders intruding was completely
negated.
When the maidservant came inside, she found Nupur Talwar
screaming near Arushi’s room saying “See what Hemraj has done”. Rajesh Talwar
was also found standing nearby, visibly shocked. The Court observes that the
clothes of the parents had no blood smears. According to the Court, the natural
reaction of any parents upon finding their daughter dead would have been to hug
and cling to her body, resulting in their clothes getting smeared by blood. The
absence of such response from the parents also was taken into account by the
Court to conclude that they were guilty.
The Court places heavy reliance on Section 106 of the
Indian Evidence Act to state that the events transpired in the apartment during
the intervening night of 15.05.2008 to 16.05.2008 are within the domain of
especial knowledge of the accused, and unless they are able to come up with a
reasonable explanation for that, the chain of events establishing their guilt
circumstantially will have to be regarded as proved.
The
missing links
The movie “Talvar”, directed by Meghna Gulzar and
scripted by the Vishal Bharadwaj, follows the docu-fiction pattern, documenting
the events pertaining to the case with certain fictionalizations to render it
suitable to cinematic medium. In the movie, the Talwars change as Tandons, and
the CBI as the CDI(Central Department of Investigation); however it is not
difficult to identify the real dramatis
personae behind the veneer of such superficial change of names. As state
earlier, there were three teams which carried out the investigation, one by the
State Police, and two by the CBI, and the film presents the versions of the
three teams before the audience, and leaves it to the audience to draw their
own conclusions. Some critics have compared the movie’s narrative
style to that of Japanese classic “Rashomon” directed by the Akira Kurasowa,
wherein multiple versions of a single incident are weaved together to present a
multifaceted account of truth to the audience. Although the film stays
objective and dispassionate with its different narratives of the incident, it
is not difficult to figure out that the film has its sympathies with the
parents.
The endeavour here is not to test the validity of the
judgment in the light of the revelations in the movie, as it would be a puerile
and egregious exercise. The attempt herein is to juxtapose the information
revealed in the movie with the factual circumstances unfurled in the judgment
so as to examine whether there are any missing links and whether the dots are
joined to present a full picture, and thereby examine whether the call for a
wider probe and further investigation into the matter is warranted or not. In
other words, merely to examine whether the issue has attained a proper sense of
closure.
The viewers are introduced to the crime scene with the
arrival of maidservant, and her inability to open the outer mesh door. Then,
Nootan Tandon( the onscreen character of Nupur Talwar, played by Konkona Sen
Sharma), asks her to go down to fetch the duplicate keys. At this juncture, it
is pertinent to refer to the discussion of the evidence of Bharti Mandal, the
real life maidservant, at pages 86 to 91 of the judgment. It appears that the
maidservant deposed before the Court that the door was not locked from outside,
contrary to her initial statement before the police. She also admitted in her
cross examination that she had deposed as instructed by the Police, clearly
suggesting that she had been tutored.
However, the Court brushed aside such inconsistencies and discrepancies
on the ground that she was an “illiterate
and bucolic lady from the lower strata” and that her testimony ought not to
be discarded on the basis of inconsistencies.(Page 91).
The chain of events as documented by the movie is as
follows. The local police who arrived at the crime scene is depicted as
carrying out the process with callous carelessness and indifference. They
failed to cordon off the crime scene, resulting in the finger prints and the
forensic evidence getting mutilated due to incessant flow of visitors.( Later
in the movie, a character playing CDI inspector rebukes the local SI stating
that “crime scene ko tumne machii bazaar
bana dia hai). According to the police it was an open and shut case of murder committed by the missing servant
Hemraj, and announces a reward for tracing him out. The police commit gross
negligence in their failure to examine the terrace of the building, where the
body of Hemraj had been lying since last midnight. Although some of the
visitors bring to the attention of the police the presence of blood stains in
the lock of terrace door and stair railings, the police officers dismiss them
as rust. It was only on the next day by 10 AM that the body of Hemraj was
discovered in the terrace in an advanced state of putrefaction.
The discovery of the body of Hemraj a day later struck a
major blow to the police, as it pointed out severe ineptitude on their part,
and the initial theory of servant killing the girl came crumbling down. Coming
under severe media criticism and public pressure, the Police felt constrained
to find a solution to the case at the earliest. Thus, the theory of ‘honour
killing’ was devised. That the Talwars slept throughout the night without
knowing the double murders which happened in the adjacent rooms was brought up
as a suspicious circumstance against them. The parents explained that they used
to sleep with the doors and windows closed and the Air Conditioner in their
room was very noisy, making it impossible to hear voices from outside. Also,
the fact that they specified the exact time of death of Arushi to the pundit at Haridwar before disposing off
her ashes in Ganga was also used to frame them. However, they explained that
the approximate time of death was mentioned to the pundit as they were told that the time of death was necessary to be
known for the proper performance of the rites. Anyway, the explanations offered
by the parents were not heeded to and they were framed, and a press conference
was hurriedly called for announcing the result. That triggered off a media
onslaught, and the character and dignity of the parents and the deceased
daughter were ripped apart by sensationalist media.
At that juncture, the CBI( CDI in the movie), takes over
the investigation. The new team conducted a sonic inspection of the room of the
Doctors with the AC switched on, and found that it was impossible to hear
voices from outside. The local police had omitted to properly examine the room
of Hemraj, where a bottle of beer and two glasses were left. Hemraj was a
teetotaller, and there were clear indications from the room that at least three
persons had assembled in the room on the fateful night to consume alcohol.
Also, the police had also failed to take the samples of a blood soaked palm
imprint on the terrace wall. By the time the CBI had taken over, the palm
imprints had faded off in rains; yet the wall surface was scraped off to
extract the imprints. The needle of suspicion turned to an employee of the
Doctor at the clinic Krishna (Kanhaiya in the movie), and Raj Kumar, a servant
in the adjacent flat. They were apprehended and questioned, and were subjected
to narco-analysis test. In the narco-analysis test, they were shown as
confessing to the crime, and detailing the events.
It was revealed in the narco-analysis that the both of
them, along with another servant, had assembled in the room of Hemraj for
consuming alcohol that night. They also watched some sleazy Nepali songs in the
television.(It was later confirmed from the television channel that the songs
matching with the descriptions given by Krishna and Raj Kumar had been telecast
that day). During their drunken revelry, they prodded Hemraj to procure the
bottle of Bellentine whiskey from the doctor’s cabin. Yielding to their demand, Hemraj entered the
doctors’ office through the door of his room which was opening to the
apartment, and proceeded to the cabin, followed by the other two. Meanwhile,
upon hearing the noise, Arushi opened the door of her room, and that moment, Krishna
and Raj Kumar sprang into her room, and tried to molest her. In the ensuing
commotion, Krishna hit the head of Arushi with the handle of his khukri (a Nepali knife), and she fell
unconscious. Hemraj got petrified upon coming to know this, and the other two
took Hemraj to the terrace and killed him there. After that, they came to
Arushi’s room and slit her throat with the khukhri. They are also shown as
taking a sip from the whiskey bottle kept in the dining table before fleeing,
thereby leaving blood stains on the bottle.
Of course, the results of a narco-analysis test are not
admissible in evidence as per the law settled by the Supreme Court in Selvi vs. State of Karnataka AIR 2010 SC 1974. However, the CBI officials
were successful in procuring a blood stained pillow cover from the room of
Krishna, which was found to be having the blood stains of Hemraj in forensic
examination. That sealed that case insofar as the presence of blood of Hemraj
in Krishna’s pillow totally negated the hypotheses floated by the local police
that Hemraj was killed in Arushi’s room. It is also shown in the movie that the
third person who was there in the drinking party at Hemraj’s room that day, was
willing to be an approver before the Court. However, very soon, the charge of investigation
is entrusted to a new team.
The
Second CBI Investigation team.
It is suggested in the movie that a new investigation
team was constituted immediately after the retirement of the officer who was
supervising the first investigation team. The further insinuation dropped is
that the new officer in charge manipulated the course of investigation to save
the face of his friend, who happened to be the in-charge of the State Police
investigation. Be that as it may, evidence and conclusions undergo a drastic
change with the second investigation team. The pillow recovered from Krishna’s
room, which had blood of Hemraj in it, gets interchanged with the pillow
recovered from Arushi’s room. It is stated that pillow with Hemraj’s blood was
actually recovered from Arushi’s room, and it happened to be referred as the
pillow from Krishna’s room as a result of a typographical error. (Even the
judgment of the CBI Court adverts to that aspect at page 158). Also, the theory
of ‘honour killing’ propounded by the State Police is re-adopted. Statements
from witnesses are taken again to suit the said theory.
It is pertinent to advert to the testimony of Dr. Sunil
Dohre, the doctor who conducted the post-mortem examination of Arushi’s dead
body, who deposed before court as PW-5. From the discussion at pages 172-174 of
the judgment, it appears that his testimony has improved considerably to suit
the theory that the deceased girl was habituated to sexual intercourse and that
her private parts were cleaned after death to remove any doubts regarding
sexual intercourse. However, in the post-mortem report, Dr.Dohre had reported that no abnormality was detected in
her private parts. Thereafter, in the statement given to the second
investigation team on 30.09.2009, he makes a contrary statement, and deposes as
above. However, the Court reconciles such testimony on the ground that none of
the above investigators had questioned the Doctor regarding the same, and the
Doctor had no occasion to give such statements until 30.09.2009 when he was
probed on that aspect by the second CBI investigation team. But, one is left
wondering as to why the Doctor noted no abnormalities in the post mortem
report. One can only frown at such casual and cavalier manner in which the
learned CBI judge gets over the inconsistencies in the statements of
prosecution witnesses.
The
Anti-Climax
The high point of the movie is the final twenty minutes,
wherein both CBI investigation teams analyse their divergent conclusions in the
presence of the Director. In a scenario which is reminiscent of the legal
classic ‘Twelve Angry Men’, each inference of the teams are put to close
scrutiny and thread bare deliberations. The viewers would find most of the
conclusions of the second CBI team ludicrous and cringe worthy. One of the
character describes the approach of the second team as this:- “ usually investigation teams first gather
evidence, and form inferences and reach conclusions. But here the reverse has
happened; first the conclusion is made, and evidences are searched and
inferences gathered to suit the conclusion”. When the second team was
confronted with the fact that no blood stains of Hemraj was found in Arushi’s
room, it was retorted that the stains were cleaned. This attracts the comment
whether the blood of Hemraj was blue in colour so that the parents could
selectively wipe it out. Also, the dead body of Hemraj was found with slippers
on; therefore the theory that he was in bed with Arushi before death was also rendered
improbable. Thus, the propositions advanced by the second team induce laughter
in the audience, creating a mood of dark humour, and as one of character
describes, ‘their whole theory is a joke’.
One gets the feeling from the events that professional rivalry, office politics
and ego of the officers of State Police and CBI deflected the proper course of
investigation.
Finally, upon weighing both the versions, the Director
instructs the second team to file closure report in the case stating that there
was no evidence to proceed against the accused. However, the Doctors filed a
protest complaint to the closure report. They wanted the real culprits to be
nabbed and prayed for further investigation. And, in an anticlimax of sorts,
the Court dismisses the closure report to take cognizance of the offence, and
directs the Doctors to stand trial.
Miscarriage
of justice
It is pertinent to ask whether it is proper to assail a
judicial order passed in a properly constituted legal proceedings on the basis
of revelations in a movie. The veracity of the revelations in the movie has not
been tested; and most of the information has not gone into record in the
judicial trial as well. So one may frown at faulting the judgement on the basis
of the information in the movie, which is primarily a work of fiction.
Nonetheless, the judgement appears untenable and shaky on
its own facts and evidence on record, and many of the conclusions are
disturbing to common prudence. The description of the approach of the second
CBI team also fits the approach of judgements:- that conclusions were first made, and inferences were formed to suit them. The manner in which the judgement ignores the inconsistencies in the testimonies of Bharathi Mandal, the maid
servant and the improvements in the statements of Dr.Dohre are in gross
derogation of the tenets of criminal jurisprudence. The prevarications in the statements of maid
servant casts serious doubt on the proposition that the door was latched from
inside, thereby necessarily leaving open the probability of outsiders coming
in. Also, the belated revelations of Dr. Dohre ought not to have been relied
upon, and discarding the same would have debunked the theory of sexual
intercourse between the deceased persons. Thus, the whole concept of motive
behind the crime would have been sent for a toss. Also, inferring that the
Doctors were awake during the night on the basis of activity in internet router
is also faulty, as the internet router detected activity even during the
morning of 16.05.2008 when the police and neighbours had assembled in the room.
The most shocking of the Court’s finding is that Doctors failure to hug their
daughter’s body suggests their involvement in the crime.
Moreover, the chain of crime formulated by the
prosecution does not inspire confidence. According to prosecution, the weapon
was a golf club, which was kept in the attic of Hemraj’s room, and the sudden
provocation for the act was the discovery of both the deceased in a
compromising position by the father. It is too improbable and inconceivable a
situation where a father, upon finding his daughter and servant in the middle
of a sex act, withholds his initial reaction to go to the servant’s room to
recover the golf club from the attic and comes back to the room of the daughter
to bludgeon both of them, who were continuing the act. That is plainly not in
the course of normal human conduct.
Equally confounding is the implication of Dr.Nupur Talwar
in the crime. Assuming the prosecution version to be true, it would only emerge
that the father bludgeoned Arushi and Hemraj to death in a fit of rage upon
finding them in a compromising position. There is no explanation as to the
involvement of the mother in this act of crime committed in a fit of rage. She
is roped into the crime with the device of common intention under Section 34 of
the Indian Penal Code. There is no indication that the mother was also present
with the father when the deceased were caught red handed. So, where is the
occasion to form common intention, one would wonder. However, without
endeavouring to explain that aspect, the Court goes on an academic discussion
of the abstract theory of common intention in pages 196 to 203 of the judgement,
and finds the mother also guilty, without affording any explanation whatsoever
as to the manner in which the propositions pertaining to common intention are
placed in sync with the case in hand.
It has also to be said that the investigation in the
crime, especially that of the local police, was shoddy and inept and that
worked grave prejudice to the accused. The failure of the local police to spot
the dead body of Hemraj on the same day;
their omission to get the blood soaked palm imprint at the terrace wall for
forensic examination; their failure in collecting the finger prints in the
Ballentine Whiskey bottle and the beer bottles and glasses in Hemraj’s room;
the gross mix up of the pillow covers recovered from Krishna’s and Arushi’s
rooms- all these resulted in foreclosing the chances of nabbing the real
culprits. By the time the CBI had taken over the investigation, the palm
imprint in the terrace wall had faded off. Yet, the samples from the terrace
wall were scraped off by the CBI. Apparently, there is an advanced process
called ‘Touch DNA’ which is available in United Kingdom, whereby DNA can be
generated even from such faded samples. Dr. Talwar had moved applications
before Court seeking to send the samples to UK for ‘Touch DNA’, undertaking to
bear the expenses; however they were also not acceded to.
The CBI officer Arun Kumar, who had headed the first
investigation team, in an interview to NDTV stated that the movie was 80%
accurate to the true events. Anyway, the information revealed in the movie has
not gone on record in the trial as evidence. The Talwars complain that they
were not permitted to summon several witnesses of their choice, including the
said Arun Kumar and allege that they have been denied a fair trial.
It may be borne in mind that the trial of the case took
place in a highly vitiated atmosphere, in which all sorts of derogatory stories
casting aspersion on the Talwars were being circulated freely in the
media. The widely held prejudice was
that an affluent family was paying for its sins of a promiscuous life, and the
Talwars were an anathema to the socially conservative and morally conscious
psyche of Indian middle class. One cannot help suspecting that the Court too fell
for such prejudices, and that might have prevailed upon the Court to proceed
with the trial ignoring the closure report. In the concluding paragraphs, the
judgment embarks upon an unwarranted homily about the sanctity of family values
and parent-child relationship. The judgment of the Court too proceeds on an
inverted application of presumption of innocence and burden of proof. The
judicial approach is peculiar in that the entire burden of exculpating
themselves are thrown on the accused with the aid of Section 106 of the
Evidence Act. One might even get the
impression that the Court was morally prejudiced and predetermined to convict
the Talwars, and in that zeal, several inconsistencies and improbabilities in
the prosecution evidence were overlooked. Let’s hope for an intervention from
the appellate court, and till then the Talwars will have to bear the doubly
agony of losing their child and bearing the stigma of being the killers of
their beloved; also the society facing the larger danger of a set of real
criminals roaming scot free mocking the system. The judgment is not free from the
pale of reasonable doubt. To conclude, the case has left several unanswered
questions and missing links, calling for a further investigation and judicial
re-examination.
Post
Script
One may also question the propriety of a movie of this
nature being made and released when the matter is still sub judice before the appellate Court. This, certainly has the
tendency to prejudice the judicial mind and interfere with the process of
justice. It may be recalled that the release of Anurag Kashyap’s movie ‘Black
Friday’ on 1993 Bombay blasts was stayed by the Court till the appeals were
finally disposed of by the Supreme Court. Anyway, there has not been any such
objection against this movie so far. Possibly because there is a general sense
of lack of closure with respect to the Arushi case, and a wide spread feeling
of injustice being meted out to the Talwars. It is only the natural outcome of
social dynamics that when the constitutional bodies fail to perform their
functions, extra constitutional agencies will emerge to fill the void.
Published in 'Live Law' in http://www.livelaw.in/movie-review-talvar-an-indictment-of-the-indian-legal-system/ on 17.10.2015
