by Avirook Sen
Varshney and Kochar were neither confessing nor had they turned approvers. That they were asked to give statements before a magistrate suggested design. The design becomes clear from where the statements were recorded, who they were sent to, and when.
Kaul didn’t present his two witnesses before a magistrate in Ghaziabad, even though the case was under the jurisdiction of that court. He took them to Delhi’s Karkardooma courts. This wasn’t due process, but this did not trouble him. When I spoke to Kochar after the trial, he said that neither he nor Varshney thought at any time that what they said would be used against the Talwars. ‘I wanted to help my friend,’ Kochar said.
Kaul had met them several times before this, and it was Kaul’s subordinate Arvind Jaitley who organized their trip to Karkardooma. They were told that statements they had made in previous interviews with the CBI contained some inconsistencies in language. The statement before the magistrate would put all of this to rest. ‘We had no idea that a closure report was to be filed and that no charges were being framed against the Talwars,’ Kochar said.
Kaul arranged for the statements to be sent directly to Preeti Singh, the Ghaziabad magistrate to whom the closure report would be submitted. This was done fifteen days before the closure report was actually filed in Preeti Singh’s court. This is unheard of. Statements are submitted as part of a report, not to give advance notice to the magistrate about what to expect.
***
The Talwars were horrified to read A.G.L. Kaul’s closure report. Dated 29 December 2010, it could be summarized thus: The CBI knew that the parents had committed the murders; unfortunately, they could not prove it. The report read like a charge sheet, without the final charge. In the report’s own words:
The findings of the investigation reveal a number of circumstances that indicate the involvement of the parents in the crime and the cover up. However there are a number of critical and serious gaps in the circumstances which make it difficult to string together the sequence of events and motive behind the gruesome murder . . .
In view of the aforesaid shortcomings in the evidence, it is felt that sufficient evidence is not available to prove the offence U/s 302/201 IPC against accused Dr. Rajesh Talwar beyond reasonable doubt. It is, therefore, prayed that the case may be allowed to be closed due to insufficient evidence.
Detailed reasons for ruling out the servants and outsiders were provided. Such as the servants would not dare consume liquor in the house knowing that the master and mistress were in. And that there was no sign of forced entry.
The reasons for not pursuing the case were far clearer. Hemraj’s blood wasn’t found in Aarushi’s room or on the clothes of the Talwars. The unusual Internet activity continued inexplicably through the next day, when no one was on the Internet and the flat was full of policemen. There were no incriminating fingerprints or any other forensic evidence connecting the Talwars to the crimes. All the evidence the CBI could point to was clearly circumstantial.
But there was a viciousness about parts of the closure report. The scientific tests done on the Talwars were emphatic about their lack of involvement in (and knowledge of) the crimes, but Kaul chose to describe these reports as ‘not conclusive’.
Similarly, the closure report stated: ‘The hymen of Aarushi was ruptured and was having old tear and was fibriated’, and ‘the vaginal orifice of deceased Aarushi was unduly large and the mouth of cervix was visible’. These were never mentioned in the post-mortem report, nor did the closure report state how these findings were opinions drawn up years after the event.
The report also mentioned that ‘a whitish discharge was present inside the vaginal cavity and mouth of cervix of deceased Aarushi’, which is normal, particularly since the closure report says ‘the pathologist reported absence of semen’. Then why bring up the whitish discharge at all?
‘There were no signs of urine or any other body fluid on the underwear or pyjama of Aarushi,’ the closure report states, which can mean anything but was used by the CBI in their theory that Aarushi’s genitalia had been cleaned up of evidence.
The scientific tests of the servants, possibly the most damaging of the tests and the ones that could have yielded a solid case had they been pursued in investigation, are summarily dismissed in a single line: ‘During investigation Dr. Rajesh Talwar, Dr. Nupur Talwar, Dr. Dinesh Talwar, Dr. Sushil Choudhary, Dr. Richa Saxena, suspect servants namely, Krishna, Raj Kumar & Vijay Mandal were subjected to various scientific tests including Lie Detection Test, Brain Fingerprinting Test and Narco Analysis Tests. The test results for all the suspects were found to be inconclusive.’ Disingenuously, the servants’ tests had been lumped not only with the Talwars’ but also with those of people obviously innocent.
The Talwars were outraged, and shortly after the closure report was submitted to a magistrate’s court, on 25 January 2011, they filed a protest petition claiming their innocence and demanding a proper investigation. As they were on their way to do this, a deranged youth attacked Rajesh with a meat cleaver. This senseless act of violence was committed in full public view, and with police all around. Rajesh Talwar was permanently disfigured.
Magistrate Preeti Singh rejected the Talwars’ plea and turned the closure report into a charge sheet, repeatedly referring to the suspicious bottle of ‘Valentine’s’ (meaning Ballantine’s) and censuring the CBI for saying it didn’t have enough evidence. She thought there was—and that both parents should be charged with murder and destruction of evidence; in addition Rajesh was culpable for lodging a false FIR blaming Hemraj for the murder of his daughter.
Her order said:
When this incident occurred at that time four members were present in the house—Dr Rajesh Talwar, Dr Nupur Talwar, Aarushi and servant Hem Raj; Aarushi and Hem Raj, the two of the four were found dead . . . On the basis of evidence of all the above witnesses and circumstantial evidence available in case diary during investigation it was expected from the Investigating Officer to submit chargesheet against Dr Rajesh Talwar and Dr Nupur Talwar.
The court had had two other options: of either accepting the closure report as it stood or ordering a fresh investigation. Yet Preeti Singh chose to send this to trial, and from her order it was apparent that not only did she have reverence for the CBI—‘Here it is pertinent to mention that the CBI is the highest investigating agency of the country in which the public of the country has full confidence’—she could not believe that such a high-profile case could have an ignominious end.
Rajesh was recovering from the cleaver attack, and his lawyers filed an application asking that he be exempted from personal appearance before the magistrate. Preeti Singh dismissed this plea summarily.
In a country where politicians and people of influence unashamedly, and with the cooperation of both the medical and legal fraternity, manage to spend time in hospital whenever the spectre of jail or court appears on the horizon, Preeti Singh’s order might have seemed harsh.
The attack on Rajesh Talwar was real, and nearly fatal; it seemed unfair to force him to come to court in the state he was in. The Talwars applied for transfer of the case out of Ghaziabad on the grounds of security, inconvenience—and, crucially, bias. One argument forwarded was that Preeti Singh had already concluded that the Talwars were guilty. The Talwars couldn’t hope to get justice in such a situation. They moved the Allahabad High Court (since that was the appellate court for all UP lower courts such as Ghaziabad’s).
This matter was dismissed in the Allahabad High Court and went all the way to the Supreme Court, which, in 2012, took a grim view of what the Talwars had contended. It said that it could have taken action against the Talwars for implying that the court was biased, but had decided to let them off this one time. ‘We consider it just and appropriate to warn the petitioners from any such impertinence in future.’
***
One of the heartening consequences of the legal battle that the Talwars had undertaken was that they now had to be given access to investigatio
n documents. How, and on what basis, had charges been framed against them? The CBI was predictably mean-spirited about this, giving the Talwars copies of only some documents. Among these was one that the CBI believed was inconsequential. This was Document 48. It had detailed forensic reports from CDFD Hyderabad and buried in the code and jargon of its pages was the strongest possible lead to the identity of the actual murderer, namely, the evidence of Hemraj’s blood on Krishna’s pillowcase.
It would be a gross understatement to say Dinesh Talwar was protective about his younger brother Rajesh. No one has been more passionate about Rajesh’s defence. Dinesh was of similar stature to Rajesh, had the same portliness, and was a man with an astonishing capacity for painstaking work. He seemed to live for details and, to the frustration of those around him, he sometimes got lost in them. Given a document, he would not be happy until he had read it forwards, backwards and sideways several times over.
He had reached Allahabad to help challenge the lower court order and was staying at a friend’s place. There he settled down one night to pay Document 48 his full attention. He was a religious man and while going through the papers, he accidentally touched his phone and one of his favourite bhajans began playing:
‘Ibadat kar, ibadat kar,’ submit to God, it went.
‘I was just taking a break from looking at the documents and this thing just started off . . . So I prayed a little bit, and started looking at the documents again, and suddenly this thing came up . . .’
In professional jargon, the document noted that the profile found on ‘Z20 (one pillow cover, purple coloured cloth)’ and the profiles extracted from the palm print on the terrace, the whisky bottle, Hemraj’s comb and Hemraj’s bed sheet, ‘was from the same male individual’, that is, Hemraj.
The purple-coloured pillow cover was the only item recovered from outside the Talwars’ flat. It didn’t belong to Hemraj. It belonged to Krishna, who lived in L-14. Dinesh Talwar stared at the document in disbelief.
‘It was very clear-cut. So I thought let me see if it’s really the same pillow cover. To be hundred per cent sure. So I traced it to the previous document, then to the seizure memo. By chance all the three documents were there. We were given only a few documents then, but these three were there. I checked and rechecked at least thrice.
‘I thought this is unbelievable! How could this evidence have been missed, because they already had the narcos which said the servants were involved.’
There had been a raid at Krishna’s house after the 12 June 2008 narco analysis which indicated deception, and in which Krishna and Rajkumar each said that they saw the other commit the murders. Krishna had been arrested on 13 June and, after the raid, the CBI on 14 June found and seized the pillowcase.
‘By that time it was two o’clock at night. You can’t phone someone at two o’clock at night. My problem was, now what do I do? I always think the worst for myself. I thought, if I die, what happens? How do I leave this, who’s going to understand what’s going on?
‘This had to go somewhere—in a manner that it’s not missed. Then the only way I could do this is by texting Rebecca John [the Talwars’ lawyer].’
The next day, Dinesh spoke to Rebecca. ‘She said this is explosive, and we filed an affidavit on this. I had this niggling doubt that they might change documents. So I actually asked Rebecca, she said that won’t happen. That the document was already filed with the court.’ This piece of naivety, based on the belief that the system is fair, was to cost the Talwars their best chance of a defence.
***
The Talwars filed their application in the court, saying there was evidence clearly incriminating someone other than them, but within days of this, on 10 March 2011, two photographs of the exhibits materialized.
Each of the photographs showed a pillow cover. One white, belonging to Hemraj, and one purple, belonging to Krishna. At the bottom of the photographs were scraps of paper that did not remotely resemble any CDFD stationery. These scraps had exhibit numbers written on them. In the report, submitted more than two years earlier, Hemraj’s pillow cover was exhibit Z-14 and Krishna’s Z-20.
In the photographs of 10 March, however, the ‘labels’ had them the other way around. Z-20 became Hemraj’s pillow cover, Z-14 Krishna’s. This revision meant Hemraj’s DNA had been found on Hemraj’s pillow cover, and nothing was found on Krishna’s.
These pillow covers would have been in sealed envelopes, shut with a CDFD seal. Someone needed to have opened the seals, removed the pillow covers from their marked envelopes, and placed handwritten labels, one of which was held down by a pencil that is clearly visible in the photographs. Then photos of the two pillow covers were shot. But not by the CDFD.
The court was shown the photographs of the evidence on 10 March and told that the mix-up was the result of a ‘typographical error’. The photographs were only displayed before the judge, not submitted as evidence. Had they been submitted, questions about their authenticity might have arisen at a later stage.
On 17 March, the Allahabad High Court came to the conclusion that it was ‘clear’ from the photographs that there had been a typographical error, and that the Talwars’ prayer must therefore be rejected. Bizarrely, even as it was saying this, the court in its order made another typographical error and got the exhibit numbers mixed up again. Nevertheless, the Talwars would either have to go higher or back to Ghaziabad.
As pieces of forgery, it would be a challenge to find poorer examples. The exhibits under CDFD seals came in November 2008 and these seals could be broken only by the orders of a court, or before it. No court had seen them/passed any such orders at the time, so how could the photographs of the pillow covers have been taken?
Madhusudan Reddy, one of the scientists connected with the case, told me that no photographs of the items were taken at the lab. The question of handwritten scraps of paper on the original samples with the alleged CDFD exhibit captions was therefore irrelevant. It implied that the handwritten scraps were introduced into the parcels, and this implied the seals were broken without the court’s witness or knowledge. And the sealed parcels were in the possession of the CBI/CFSL at the time.
A second reason catches the forgery out even more directly. Not only are the ‘labels’ unsigned and undated, whoever wrote out the swapped exhibit numbers also copied them down wrong from the original stickers. He added a serial number where none existed.
There was a third point that surely merited some consideration. The lab that had prepared the report had not even been contacted when the photographs were shown in court to make the typo claim. After all, the alleged error was at the CDFD end. Should they not, at the very least, confirm that one of their typists had made a mistake?
The Allahabad High Court never asked for the photographs to be placed on record. Nor did it tell the CBI to get a clarification from the lab before it passed any orders. On the basis of two photographs, it rejected the Talwars’ prayer.
***
There was more to follow. Having secured the high court’s order in their favour on 17 March 2011, the CBI wrote to the CDFD. They didn’t just write, Kaul flew to Hyderabad and camped there. But here is what the CDFD officially heard:
‘It appears that due to a typographical error, the description of the exhibits Z-14 and Z-20 in the report dated 6.11.2008 have been interchanged.’
How does it suddenly ‘appear’ nearly two and a half years after the original report, and more important after the Talwars have pointed to a clear piece of evidence incriminating Krishna? Kaul, who was not supposed to even have opened the parcels, had not just magically produced photographs of the exhibits under seal, he had also suggested that there was an error at the CDFD’s end. An error that concerned one specific, case-turning, sample.
On 24 March, the CBI received a brief clarification from the CDFD saying that Kaul was right, that there had been a typographical error. That is, Z-20 was actually Hemraj’s pillow cover, and his blood had been found on it. It took just a se
ntence to remove the keystone on which the Talwars might have mounted their best defence.
This was the sequence of events: Dinesh Talwar discovers the evidence against Krishna; the Talwars file an affidavit; the CBI produces two dubious photographs and claims a typo, without any confirmation from the supposed source of the error; the judge accepts the argument, rules in favour of the agency; the CBI gets its clarification after Kaul travels to Hyderabad.
With the Allahabad High Court order in hand, it became that much easier for Kaul to get the CDFD to simply agree with the suggestion in his letter. After all, a high court was convinced—why would the CDFD take an opposing position?
But the original report is still there for everyone to see. The improbability of the samples being interchanged is evident. The exhibits are ordered in a way that samples from one person or one area are listed one after the other. Hemraj’s belongings, for instance, are all serialized together, his undergarments, slippers, watch, sheet and pillow cover come one after the other. The ‘typo’ breaks that sequence for no apparent reason—something belonging to Krishna makes its way into what is Hemraj’s list. The full description of Krishna’s pillow cover—‘purple coloured cloth’—appears no less than six times in the report. Six typos?
Surely someone would have to explain. I asked both the CDFD director J. Gowrishankar and Reddy about this: their explanations were vague. When I sent Gowrishankar the photographs he said that the photos were unauthenticated so he could not comment on them; then he gave a long-winded description of general procedures followed while labelling. In the end, he said he could not comment on the specifics.
Dinesh Talwar was distraught at this turn of events. In anger and frustration, he told me, ‘What is the credibility of any document when you can change them?’ What the Talwars hadn’t realized at the time was that a trial was inevitable. Had they kept the secret of Document 48 to themselves, all they would have had to do was ask a CDFD scientist if he stood by the report during the trial. That would authenticate the document. And by then, it would be too late for anyone to turn Z-20 into Z-14.