Talwar lawyers find at least four points to appeal order

Burden of proof

“In his judgment,additional sessions judge Shyam Lal has reversed the burden of proof on the accused themselves. The judgment says that if there were only four people in the house,the burden is on the two who remain to furnish explanations on the occurrences of the night. This is a violation of the Supreme Court’s findings in the Kali Ram versus the state of Himachal Pradesh,1973 where the apex court said that in a murder case,the burden can never shift to the accused.”

Mir said the reversal of burden of proof was “unfair” since there were no arguments during the trial on the subject at all. “During my final arguments,I had asked the prosecution before the judge if it was their case that the burden of proof was on the accused to prove the happenings of the night. But the prosecution told the court that the burden was entirely theirs,and no arguments ensued,” he said.

Chain of events

Mir said the defence would contest that the burden could not be shifted since the CBI had put forth a “positive case.”

“The burden cannot be on the accused as the CBI has not said that they do not know what happened on the night and,therefore,the accused must explain. They have put forth a positive methodology,and it is their burden to prove that methodology and chain of events,” he said.

Testimony of the maid

Mir said that maid Bharti Mandal’s admission that she had been tutored and the fact that she had made improvements in her testimony to court later have been “wholly ignored”.

“It is Bharti Mandal’s testimony that when she put her hand on the door for the first time on the morning of May 16,she found it was shut. That is the crux of the ‘no-outsider’ theory. But during cross-examination,she admitted that she narrated whatever she had been taught. That was ignored. This contradicts the Supreme Court’s direction that in a case where the incident could bring the highest punishment,the evidence must be of the highest value,” he said.

“The improvements made are not superficial,but central to the case. The fact that she says for the first time that the door didn’t open when she first tried to push it open is a massive improvement which changes the case.”

Factual inaccuracies

Page 108 of the order states “it becomes abundantly clear that Hemraj’s DNA had been found on the pillow of Ms Aarushi as per letter dated 4.6.2008 Exhibit-kha-45 of SP,CBI”,Mir said.

“However,this letter was shown as erroneous during the trial itself. When the exhibit was opened in court during the testimony of Dr BK Mahapatra of CFSL,the tags showed that it was from Hemraj’s room and not that of Aarushi. This is why we have maintained that there was no proof of Hemraj’s blood or DNA in Aarushi’s room,” he said.

In jail,they have new roles — a teacher,a doc’s assistant

Ghaziabad: Until Sunday,they were both dentists. On Wednesday,a day after they were handed life terms for the murder of their daughter Aarushi and domestic help Hemraj,the Talwars were assigned new jobs — Nupur as a teacher and Rajesh as an assistant in Dasna Jail Hospital.

Jail officials said the decision had been taken on the basis of the couple’s background.

“We gave the role of a teacher to Nupur Talwar. Even the last time she was here in 2012,she interacted with younger women and was eager to teach them. She will now teach the women in the jail premises,” Viresh Raj Sharma,Dasna jail superintendent,said.

Given his background in medicine,Rajesh Talwar has been assigned a role at the jail hospital.

“Rajesh Talwar agreed to assist the compounders and the doctors at the jail hospital. Since he is an expert in his field,and knows general medicine as well,he will be able to help the other inmates with medical problems. Both Nupur and Rajesh Talwar will be paid Rs 40 per day for their services,” Sharma said.

Jail officials said the couple spent a “relatively more comfortable night on Tuesday”. There are no medical check-ups on a daily basis, but on Wednesday,when they were asked about their health,both said they were feeling fine.