Aarushi

by Avirook Sen

  That this report came eight months after the seizure and all manner of handling, by various people at the CBI and the CFSL, didn’t matter. The iron that had less dirt had to be the murder weapon: it had been cleaned. This is the story that the CBI put out, and stuck to.

  But which golf club was it? According to Kaul’s authoritative December 2010 closure report, it was the club bearing the engraving number ‘5’.

  There was one problem with this that Kaul had failed to notice: the club bearing the engraving ‘5’ wasn’t the iron that appeared to have been cleaned. The two ‘cleaner’ clubs were a 3 wood (which wasn’t a suspect) and a 4 iron.

  When the discrepancy was pointed out in the course of the trial, the 4 iron became the weapon of offence. No explanation was offered. This was the fourth time the weapon responsible for the blunt injuries had changed. The police initially suspected a hammer; the AIIMS medical committee said it was a khukri; Kaul said 5 iron; the trial court was told it was a 4 iron.

  ***

  Ajay Chaddha was central to the story of the golf club. Chaddha was born in Amritsar, where Rajesh’s mother was from, and the families knew each other well. Chaddha had started a medical supplies business and Rajesh allowed him the use of a cabin in his Hauz Khas clinic for this.

  Although his email was crucial and he was listed as a witness, Chaddha was never asked to testify for the prosecution. Tall, light-eyed and blessed with North Indian good looks, Chaddha would, however, turn up in court on many dates. He was one of the first friends of the family to reach the Talwars’ flat on the day of the murders, and spent the night there, helping with the post-mortem and the cremation. The next day, he was returning home in the morning when he heard about the discovery of Hemraj’s body. He took a U-turn at the DND flyover and came back to the flat. Chaddha was a source of support to the Talwars through the investigation as well. In May 2010, for instance, he had accompanied them to Dehradun, where the issue of the golf club came up.

  Chaddha had had a couple of interesting interactions with Kaul before the exchange of the golf club emails. In January 2010, the investigating officer summoned him to his office to record a statement. Chaddha says Kaul began by showing him photographs of the crime scene and reminding him of the brutality with which the murders were committed, but soon enough he was on to another theme.

  ‘He told me, “You know they have done it, why defend them and make more trouble for yourself? Testify for us.” I told him that I was convinced of their innocence and had already told investigators what I knew of the events of that day,’ Chaddha told me.

  Nevertheless, he said, he was willing to answer any questions Kaul may have had. Kaul appeared to have the impression that Rajesh Talwar and Chaddha were related. Chaddha clarified that they were not. Towards the end of a meandering interview, during which Kaul repeatedly reminded Chaddha that he was only inviting trouble if he stood by the Talwars, Kaul pulled out what to me was his cheapest trick.

  During her narco tests, under the influence of a cocktail of drugs, Nupur Talwar had said many things of a personal nature, including her love for Rajesh. In one line, she had also said that she had, on one occasion, had physical relations with Chaddha. This was when Rajesh was in jail, and Chaddha was the only one among their friends who had stood by their side.

  The scientists who conducted the test didn’t judge the statement on whether it was true or not. Unlike brain-mapping, in which an experience a subject has participated in and one the subject has only heard about produce two different brain-states which can be directly measured, the effect of narco analysis is a lack of inhibition in expressing both thoughts and experiences. Narco analysis cannot determine if what Nupur said was true or false; only that she was being honest about her feelings for Chaddha. Scientists call this transparency; it is common in narco narration.

  In the servants’ narco analysis, to put this in perspective, the scientists found no transparency at all, and repeated attempts at deception. The servants’ narco analysis in fact confirmed the brain-mapping, in which they placed themselves at the scene of the crime.

  Kaul, of course, had read the report and latched on to this juicy bit. ‘He told me he would tell my family that I was having an affair with Nupur, that he had proof,’ said Chaddha. ‘I told him, go ahead, do your worst.’ In the statement recorded that day, Kaul asked Chaddha whether he was having an extramarital affair with Nupur. Chaddha’s reply was, ‘That is a stupid question.’ He wasn’t having an affair.

  Nuggets like these were great fodder for the media. The more important aspect of the scientific tests on Nupur (and Rajesh) was that there was no deception in their answers. But with a swirl of rumours about the allegedly promiscuous lifestyle of the Talwars already in circulation, the suggestion of an extramarital affair was seen as too juicy to ignore—even if it were circulated as an additional rumour. The last question to Chaddha, according to his January 2010 statement to Kaul, was whether he knew anything about a golf club that had gone missing. Chaddha purportedly replied that he had faint memories of some inquiries in this regard in the early part of the investigation.

  I asked Chaddha why he didn’t tell Kaul that, in early 2009, he and Nupur had found a club in the loft. ‘I was never asked this question at all,’ he said. I pointed out that the January statement bore an ‘ROAC’ (read over and corrected by the witness). Didn’t he do this? ‘Absolutely not. I am not just certain, I am two hundred per cent certain,’ Chaddha said.

  This was like another statement that Chaddha gave on 29 July 2010 which too wasn’t read over and corrected by him. In it, Kaul confronted him with the same question I asked: Why hadn’t he mentioned the ‘recovery’ of the golf club in January?

  But in this interview with Kaul well after his email of 1 June 2010, the investigating officer records Chaddha as saying he didn’t tell the CBI about the club in the loft when asked earlier because he didn’t remember the incident clearly at the time (in January 2010). This statement is filled with evasive answers about the missing club. Chaddha insisted the question was inserted. He hadn’t signed the document, and was never shown a copy of the transcript, he told me. Kaul, however, signed off on it, claiming that it had been read over and corrected. But something about the statement Kaul recorded in January 2010 was odd, the question on the missing golf club ended the transcript, but the one preceding it was significant:

  Kaul: Is it correct that you are very close to Nupur Talwar including having extramarital relations with her?

  Chaddha: This is a stupid question. Yes I am quite close to her as I feel that she is a victim of tragedy. No I do not have extramarital relations with her.

  Kaul had told Chaddha that he had proof of the affair, but the narco report was submitted on 9 March 2010. It was striking that Kaul was able to confront Chaddha about his affair with Nupur Talwar in January, more than two months before Nupur’s report arrived.

  ***

  The CBI’s claim that the Talwars had not given ‘satisfactory’ answers about the ‘missing golf club’ are based entirely on what Chaddha purportedly told Kaul. Nothing on the record shows the CBI asking the Talwars any questions about the golf club at any time before the full set was seized in October 2009. But Kaul found a way around this. He cast Chaddha as someone answering on behalf of the Talwars. And providing unsatisfactory answers. In court, this story was given a wicked twist. The Talwars claimed that they had never asked Chaddha to speak on their behalf while contesting the admission of the email as evidence. Kaul would tell the court that he was speaking on their behalf because he was a ‘relative’.

  One of the first things Chaddha had done when he met Kaul was tell him clearly that he wasn’t a relative. Rajesh’s mother and his mother were just neighbours in Amritsar. Chaddha never testified, and the court held that since Kaul’s claim wasn’t refuted, Chaddha was indeed a relative, and was therefore speaking on the Talwars’ behalf.

  Though he remains a loyal friend to the Talwars, Chaddha’s 1 June email, deta
iling the circumstances about the recovery of one golf club during the cleaning of the Noida flat, caused serious damage to the defence. One day during the trial, while having the usual late lunch at a restaurant just outside the court, the Talwars’ trial lawyer Tanveer Ahmed Mir told Rajesh in mock despair: ‘Doctor sahab, if you really had to murder somebody, you should have murdered Ajay Chaddha.’

  ***

  In November 2010, Ashwani Kumar was moving out of the CBI and into an obscure academic job for a period of ‘cooling off’ before he would head to the Raj Bhawan in Manipur. The Talwar case had progressed (if that is the right word) during his tenure with big leaps and no real proof; it wasn’t sound enough for court.

  It fell to Kumar’s successor, Amar Pratap Singh, to make the announcement that the CBI would not press charges against anyone, and declare the investigation closed. It wasn’t a happy task, but Singh wanted it out of the way at the very start of his term. He called a meeting of the officers involved within a week or so of taking charge.

  Arun Kumar was invited to join the meeting even though he was no longer part of the organization. The new director felt Kumar’s input was important since he had conducted the early investigation.

  The others who attended included the IPS officer Javed Ahmed, who was in overall charge, and his subordinate Neelabh Kishore, who was based in Dehradun. A.G.L. Kaul was present of course. So was the CBI counsel R.K. Saini.

  It was Kaul who spoke the most at this meeting, laying out why he felt that there was a case to be framed against the Talwars. The golf club, the scalpel, the unusual Internet activity—the router was apparently switched on and off through the night, suggesting someone was awake—the post-mortem doctors’ revised reports, all of this went into his narrative.

  His seniors listened, but were not convinced that there was enough to go to court with. The CBI’s director of prosecution, who was also there, pointed out that the whole case was circumstantial. For that to result in a conviction, the chain of circumstances could have no gaps at all. There were glaring holes that Kaul could not explain.

  Saini spoke up for Kaul. He pointed out that the Talwars could not escape the burden of proof: they were in the house and it was up to them to explain how the murders took place. But the director of prosecution shot this down pointing out that the burden of proof (under Section 106 of the Indian Evidence Act) was applicable in cases like dowry deaths, and couldn’t be stretched to frame charges in this one.

  Arun Kumar heard all of this without comment. The director then asked him his opinion. He told the meeting that he agreed with the view that no case could be made out against the Talwars, and since there was nothing further on the servants’ front, the best course was not to charge anyone.

  It was decided that the CBI would file a closure report, which is a final report marking the end of investigation and listing the conclusions. Amar Pratap Singh told Kaul, as the investigating officer, to write the report. As far as everyone in the room was concerned, the case was closed.

  ***

  Perhaps it is incorrect to say ‘everyone’. A.G.L. Kaul seemed to have continued with his investigation. In mid-December Kaul, with some help from Dahiya, conducted a ‘crime scene reconstruction’ experiment on the terrace of the Talwars’ flat.The purpose of this was to show that it was possible for two people to wrap a body in a sheet, carry it up one floor and drag it across the terrace. There were no other suspects at the time, so the ‘two people’ could only be Rajesh and Nupur Talwar.

  In mid-December, Kaul recorded statements incriminating the Talwars from Rajesh’s friends Dr Rohit Kochar and Dr Rajeev Varshney before a magistrate, under Section 164 of the CrPC. This gave a serious and unusual twist to the case.

  Kaul had wanted to record Ajay Chaddha’s statement, about the discovery of the missing golf club, under Section 164. It would have been a valuable piece of evidence for Kaul, but Chaddha had not obliged. So Kaul turned to Kochar and Varshney, who had turned up at the flat on the morning of 16 May 2008 on hearing that Aarushi had been murdered.

  The middle-class professional in urban India wants very little to do with the state beyond things like passports, pan cards and railway tickets. As for the police (which includes the CBI), we would like to avoid any interaction at all. Being associated, in any way, with a murder case of this notoriety would count as serious misfortune. The best course was to put distance between the event and your own, decent, if unremarkable, life.

  There were people who reflected this attitude fairly clearly in this case. One of the Talwars’ neighbours shifted out altogether. Another, Puneesh Rai Tandon, who lived in the flat below, and whose terrace abuts the Talwars’, told investigators that his family was ‘not having social relations [with the Talwars] as they belonged to upper strata of society and we are middle-class persons. Apart from this, they are doctors maintaining high and different social circle and we belong to defence background.’

  Puneesh Tandon, a software consultant, was indeed from a defence background—his father, Avnish Rai Tandon, was a vice admiral in the Indian Navy. But so was Nupur, despite what he told investigators, as her father, Bhalachandra Chitnis, had retired as group captain in the air force. The Tandons had a posh home in the hill resort of Naukuchiatal, which the Talwars had visited. Rajesh Talwar remembers too the parties on his terrace which Tandon had attended.

  For Tandon, it was pragmatic not to mention these social interactions. After all, apart from the unfortunate, and unavoidable, circumstance that two murders had been committed in the flat above, he and his family had nothing to do with the event. And wanted nothing to do with it.

  Kochar and Varshney were well acquainted with the Talwars. Rajesh would routinely make dinner plans on Thursdays with the Kochars, and Varshney had known Rajesh for twenty-five years. They were at the scene early like Chaddha. But unlike Chaddha, Kochar and Varshney were eager to put distance between themselves and the Talwars. And unlike Chaddha, Kochar and Varshney agreed to record statements under Section 164. Their statements corroborated each other’s.

  Kochar and Varshney were initially persuaded by Kaul to give statements under Section 161, and they did so in June 2010, two years after the incident. Kaul then ensured they would not retract and had them make the statement under Section 164 in December 2010—just two weeks before the CBI filed its closure report.

  Both men said they had noticed traces of blood on the stairs to the terrace and alerted Rajesh on the day of the murder. They both said that Rajesh started up the stairs when informed of the fact, then suddenly turned back and didn’t pay any attention when he was asked for the keys to the terrace. This behaviour was seen as compelling evidence of guilt.

  Kochar’s and Varshney’s Section 164 statements were powerful evidence. But not because they could not be refuted with logic or fact. Their strength lay in the emotions they evoked, even in a judge. Kochar and Varshney were testifying against their friend, Rajesh Talwar.

  Varshney’s statement to Kaul begins with a sentence that is simple, and in some ways almost touching. It reads: ‘Dr Rajesh Talwar is my friend.’ In the absence of other reasons, the only thing that would compel a friend to give evidence against another was an obligation to tell the truth. Were there any other reasons in this case?

  When Kaul had met the two men earlier in June 2010, his line of questioning made his line of investigation obvious. Kaul records Kochar as saying that he and Rajesh regularly met for ‘drinks’ and dinner on Thursdays. That ‘non-veg’ food was served even though it was Thursday. That Nupur Talwar was ‘very particular’ about her appearance. And that, even on what should have been the saddest day of her life—the morning after the murders—he found her ‘looking in the mirror’ in Aarushi’s room.

  Although anyone living in Delhi will know that eating ‘non-veg’ on a Thursday isn’t such a big deal, it does suggest that the consumers are liberal. And therefore different. The Indian middle class is largely Hindu conservative.

  Each statement tha
t alluded to any perceived non-conformity in their lifestyle chipped away at the character of the Talwars and put their conduct at the time of the murders and thereafter in precisely the context that the CBI wanted. A question such as ‘What kind of person would look in the mirror to check her appearance when her daughter is lying murdered next to her?’ was loaded with the presumption of guilt.

  The power of suggestion of what seems like such a trivial fact should not be underestimated. It has led to murder convictions—in the recent past, and from the Ghaziabad courts. In the Nithari murder case, in which Moninder Singh Pandher and his servant Surinder Koli were accused of raping, killing, dismembering and disposing of 17 children, including ten girls, although Koli had confessed (and later retracted), Pandher was found guilty of having a hand in the murder of 14-year-old Rimpa Haldar and was sentenced to death, though he was not found guilty in the cases of each of the other victims. This verdict was arrived at because Surinder said his evil instincts were aroused when he saw his master drink and romp with prostitutes. Pandher was seen as a debauch. For the court, the leap to murderer was a small one. Pandher was acquitted by the high court because he was able to prove that he was in Australia at the time of that particular murder.

  Everything about Kaul recording Varshney’s and Kochar’s statements under Section 164 was unusual. First, the need to do it: statements under Section 164 are normally recorded when investigators want a confession that stands up in court, or when a witness has turned approver, and the police want to ensure he doesn’t do a U-turn during his testimony. In practice, the police use Section 164 sparingly: it is binding, and ties not just the witness down, but the investigator too. It doesn’t leave room for manoeuvre, which is often necessary while pressing for convictions.