The Viewpoint: Blowing in the Wind - The Aarushi-Hemraj murder case

Bar & Bench February 9 2018
Steps to Protect Intellectual Property of Start-Ups

Niharika Karanjawala

The acquittal by the Allahabad High Court of Rajesh and Nupur Talwar in the Aarushi murder - a case that captured the attention of the nation - brought forth a number of questions, none as significant as those regarding the efficacy of the investigative process.

The reasoning eventually given for the acquittal of the couple, after a trial rife with the sting of public opinion, was that the investigation had been botched in its opening days, leading to the loss of potentially crucial evidence.

The criminal justice system must constantly adapt and evolve with the emergence of new technology, and be willing and prepared to tackle any lacunae that may pervade it. The Talwar investigation, from that perspective, proves a valuable opportunity to assess the system and shore up any weaknesses.

The statements of eyewitnesses alone - police personnel included - vouch for the fact that the crime scene at the Talwar’s residence was one of chaos on the morning of  May 16, 2008.

The flat itself had not been cordoned off by first responders, leading to the presence of media teams, visitors, and even passersby coming forward to take a first hand look at the spectacle. Amidst this, investigators were attempting to lift fingerprints, photograph the scene and glean evidence, without taking adequate measures to secure and protect the scene in the first place.

This would ultimately result in a situation where the body of the deceased child was admittedly flipped over and moved back into place, by a lady constable attempting to examine it, before a crime scene photographer had photographed the position of the body. Blood samples, fingerprints and nail scrapings of neither of the victims were taken by either investigators or postmortem doctors. Only 26 fingerprints were lifted from the scene, of which a total of 24 were smudged and 2 were unidentifiable. The lock to the terrace door, which was reportedly blood stained and behind which Hemraj’s body was eventually found, was not broken open by investigators, despite having full and unquestionable authority to do so.

While blame has befallen investigators, the emergent need here for the progress of the investigative system and, by extension, the progress of the criminal justice system itself, is better training of investigators - specifically first responders - to ensure preservation of crucial evidence.

Experts agree that the first twenty-four hours of a crime scene are of paramount significance from the perspective of investigators; once the scene is disturbed, or with the passage of time, evidence begins to degrade and the image that investigators can draw up of the crime begins to lose focus. Integral to this is the system of cordoning off a crime scene as soon as possible, in order to allow entrance to only authorized personnel. Should a crime scene not be cordoned off, and the disruption of unauthorized visitors allowed, the crime scene is considered corrupted within the first twenty-four hours itself.

In many investigative systems, in fact, the primary responsibility of first responders is merely the cordoning off, securing of a crime scene, and identification of the nature of the crime, so that detectives and experts from that specific branch may be contacted.

Wearing adequate protective gear (such as gloves, hair coverings and shoe coverings) is also vital, as investigators could unintentionally introduce foreign materials (such as dirt, footprints, fingerprints, strands of hair and even DNA) that could corrupt the crime scene and substantially alter and impair the investigation.

Investigators, ranging from new recruits and first responders, all the way to established experts, should be able to understand and appreciate the significance of keeping a crime scene secure and the best methods to do it.

Coming back to the Talwar trial, the two unidentifiable fingerprints, which couldn’t be traced to any of the suspected persons, could, arguably, belong to any member of the police, media or general public that entered the flat, as often happens with corrupted crime scenes.

The investigative process must additionally be systematic and follow a predefined order, to ensure that any one process does not irrevocably damage the others (collection of evidence, for example, cannot precede photographing the crime scene or taking fingerprints, as it necessitates rearranging the crime scene).

After the scene is secured, photographing it, in order to retain the closest estimation of how it looked at the incidence of the crime, is imperative. Photographers should, furthermore, be prepared and equipped to extensively document, not only each aspect of the scene and the area surrounding it, but also, in cases involving victims, each of the wounds sustained, at different angles and distances, in order to afford investigators and prosecutors the best possible understanding of the scene.

Thereafter, collection of fingerprints and evidence can be undertaken, taking care not to damage the evidence, and collecting and packing it in a manner that seals the evidence completely and does not leave any part of it exposed to possible contagion.

One piece of evidence that received much media coverage and speculation during the Aarushi murder trial was the vaginal smear sample collected from the child and initially determined to have only her DNA. But later, with no explanation and amidst much agitation, it was shown to contain the DNA of two women; the identifiable was not of Aarushi.

An explanation would emerge later, when details of the process used to seal sample slides were revealed by the lab in question. This process involved wedging the sample between two glass slides, on one of which was written the name of the subject and identifying details of the case. The slides were then, without being bound together or sealed in separate envelopes, stacked side by side in a storage cabinet, leaving them open to contagion and the possibility that, since only one of the slides contained identifying details, slides from two separate cases could potentially be accidentally sandwiched together.

The occurrence of such incidents, regardless of how innocent or lacking in malice they may be, are disastrous for the trial system, which is entrusted with delivering justice and holding the lives and liberty of defendants in its hands.

In conclusion, clear and codified rules should be set down for investigators, as well as formal and practical training imparted to them, to enable them to secure and preserve evidence in the most optimal manner possible. The quality of evidence presented strengthens the hands of prosecutors and courts, allowing them to dispense justice, hold accountable the guilty, and free the innocent. The State and the system owe this to our investigators, to our courts, and to the nameless millions that await justice.

The author is a Senior Associate at Karanjawala & Co.

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