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.