Aarushi

by Avirook Sen

  However, his first impression, in a statement recorded by the UP police on 31 May 2008—Aarushi was murdered on 16 May—had none of these details. In a fresh statement of the CBI investigation team under Kaul in 2010, he departed substantially from what he had said in 2008. During the trial, he stuck to this new version.

  His memory on everything but this new story failed him completely in court, however. To every uncomfortable question the cross-examiner posed, Chunnilal smiled and said: ‘Dhyan nahin hai’ (I can’t remember). In a page and a quarter of one transcript of his testimony, this phrase appears eighteen times. It became a joke in court. But Chunnilal had a lot to answer for. He admitted he hadn’t inspected the toys, so how could he be so sure about the absence of blood? Why weren’t the toys seized? Had he noticed that Aarushi’s cotton pyjamas had an elastic band, a common feature in these casual garments, which can be worn without tying the strings?

  Again: ‘Dhyan nahin hai.’

  Chunnilal, as it turned out, wasn’t much of an expert at anything apart from ducking questions. The fingerprints he lifted from the scene were useless to the labs, and his photos were in a complete mess—several prints submitted with negatives were mismatched. Where were these missing pictures? These would have been vital for the defence, but Chunnilal had lost his memory.

  ***

  Of the items on the scene that morning, the most intriguing was the bottle of Ballantine’s Scotch whisky. The company’s tagline is ‘Leave an impression’, but in the present case, it turned out that there weren’t any particularly useful impressions on it. This was down to Chunnilal, whose familiarity with the process of lifting prints competently appeared limited. He didn’t know, for instance, what chemicals had to be used. He said he used a ‘black powder’.

  The UP police had seized the bottle, supposedly covered with fingerprints and blood, two-thirds of its contents consumed. But this is what the CBI’s closure report of December 2010 had to say about the bottle: ‘Presence of a scotch bottle without glasses on the dining table of Dr. Rajesh Talwar with blood of both the victims on it indicates the involvement of inmates [read parents] as it was unlikely that an intruder would return to the flat to take liquor after committing two murders.’

  As C.N. Bhattacharya, the acting director of the CFSL, told me on a later occasion, the collection, packing, handling and sealing of samples were of paramount importance. The bottle of Ballantine’s could have thus yielded important bits of forensic evidence had fingerprints been properly collected. In fact by the time the third investigating team weighed the evidence—or lack of it—it was speculated that there were no fingerprints on the bottle, and a story appeared in the Hindustan Times, quoting sources, saying that no fingerprints on the bottle meant that the Talwars must have worn gloves while allegedly committing the crime. This glove theory, however, never made it to the closure report or to the trial.

  ***

  Through the sapping summer of 2012, the court would hear the case an average of twice a week. A steady stream of witnesses for the prosecution came and went. It was clear that one of the CBI’s strategies in court was to draw a picture of the Talwars as an immoral and emotionless couple, who had suppressed the fact of their daughter’s rape and had her genitals cleaned. It was at this time that one of the oddest testimonies of the trial (and there were a few bizarre ones to follow) was recorded.

  Sanjay Chauhan was a city magistrate in Noida then, and said he had arrived at the Talwars’ flat at 7.30 a.m. on 16 May. He had no real business there, but had noticed that there were several mediapeople and policemen around the Jalvayu Vihar neighbourhood when he was driving home after his ‘morning walk’. He was curious, asked around and reached the Talwars’ flat. The CBI said he was testifying not as an official, but in his ‘personal capacity’.

  Chauhan said he found Rajesh and Nupur ‘roaming’ from room to room, talking to visitors. He also observed that they avoided going near Aarushi’s body and showed no signs of grief, which he found ‘surprising’. He added that he noticed bloodstains on the steps and railing leading up to the terrace, which was locked. He, however, made no official mention of this to anyone that day.

  The city magistrate had mentioned that he lived in Greater Noida, so Dinesh Talwar pulled out his smartphone outside the court and Google-mapped the distance from Chauhan’s home to Sector 25, where the Talwars lived. It was 28 kilometres. This meant Chauhan drove 56 kilometres a day just to take a walk. This was incredible, but it wasn’t all. He was asked about landmarks around where he walked and couldn’t name even one. He told the court that he would travel all this way because the facilities for walking in Greater Noida were inadequate and the area unsafe.

  Chauhan looked like he could use some morning walking, but it wasn’t as if he was invisible. So how was it that no one remembers seeing him in the flat? And what was the purpose of his testimony? Witnesses who were summoned later would support his claim about the Talwars’ conduct. A Jalvayu Vihar security guard also told the court that the Talwars were not weeping when he rushed to their flat on being told about the murder. To investigators who spoke to him right after the incident, however, the guard had said Rajesh and Nupur Talwar were in tears and in shock.

  The guard and the morning-walker’s depositions threw up the following suggestion: if you have lost a loved one in a violent crime and do not weep at the exact times future witnesses for the prosecution arrive at your home, then you must be guilty. It didn’t matter that there was no proof Chauhan was at the scene at all, or that the guard had said the opposite earlier. Or that there were a number of witnesses who saw the Talwars weep.

  ***

  In matters of observation of behaviour, people can, and do, express a subjective opinion. But what about in matters concerning science?

  Dr Sunil Kumar Dohare, the medical officer who conducted the post-mortem on Aarushi’s body, appeared in court that summer to say what he had earlier told Kaul. That Aarushi’s vaginal cavity was so dilated he could see her cervix. When he was asked why he hadn’t recorded these facts in his autopsy report, Dohare gave a slightly different answer from what he had told Kaul. Then he had said his findings were ‘non-specific’ and ‘very strange’. Now he told the court that they were ‘subjective’.

  There is no such thing as a ‘subjective finding’. A finding is by definition objective and verifiable. An article in the respected Journal of the American Medical Association describes ‘subjective findings’ as ‘self-contradictory and time-dishonored’ and goes on to say, ‘By definition, findings are either objective demonstrations of abnormality, or the objective lack of demonstrable signs of abnormality.’

  But Dohare went on to expand on his theme. He told the court that the wide opening of the vaginal cavity indicated that Aarushi’s private parts had been ‘manipulated’ after her death. The presence of a ‘whitish discharge’ suggested possible cleaning, because the discharge wasn’t evenly spread.

  Dr Dohare is a man of average build in his early forties. The two most noticeable things about him were his thick glasses, through which his eyes seem to bulge, and a weak chin. He had a tendency to explain rather than answer directly, and was at pains to tell the court about his limited role in the AIIMS post-mortem report on Aarushi—he had ‘signed it’ but not ‘prepared it’.

  When the court broke for the day, I asked Dr Dohare about the AIIMS document. Why had he signed it when he took no responsibility for its contents? He began by explaining he was not an expert in the other fields included in the terms of reference, and then was glad to be rescued by a CBI officer standing nearby. The CBI man said, ‘He wasn’t asked this question,’ and chaperoned Dohare away. His job for the day was done.

  Dr Dohare was among the most important witnesses in the trial. His testimony was one of the pillars that propped up the case against the Talwars. In it were his ‘expert opinion’ of the weapons used and the tampering with Aarushi’s body. In it, the CBI argued, were both the motive and the method for the mur
ders.

  Although those were early days, the CBI believed that the man who followed Dohare in the witness stand (so to speak—since there is no stand in the fast-track court, the witness simply stands facing the judge) would clinch a conviction.

  Dr B.K. Mohapatra was one of the CFSL scientists who had conducted DNA tests on all the evidence collected from the crime scene: scrapings from blood-specked walls, the khukri, various articles of bloodstained bedding, all of it went to Mohapatra. He had joined the investigation right from the time the CBI took over in June 2008, a fortnight after the crimes. The CFSL is an extension of the CBI, and Mohapatra was part of a team of scientists and investigators who had gone to the crime scene hunting for clues.

  Dr Mohapatra had several days of appearances ahead of him. His deposition involved as many as 152 exhibits—many of which had to be physically held up in court. He had to testify on eight separate forensic reports. He also had to provide details of every seal, noting and letter that concerned the CFSL.

  It was in the course of these days that I sensed a growing confidence in the manner in which everyone on the CBI’s side conducted themselves. I had read Mohapatra’s reports and wondered what I might have missed that made the prosecution so sure of themselves. I felt the most important aspect of Mohapatra’s testimony would be an incriminating presence of DNA. The prosecution could walk away with the case if, for instance, Hemraj’s DNA was discovered in Aarushi’s room. This would establish his presence there, and therefore Rajesh Talwar’s motive.

  It was for the lack of hard evidence such as this that the CBI was forced to file a closure report. Had they found fresh evidence since then?

  At lunchtime one day I found Mohapatra sitting unaccompanied in the courtroom, minding two large folders on a table in front. He was a short, spectacled man, with a thick Odiya accent that sometimes confused people from the north (‘blood’, for instance, would become ‘blawed’). He looked simple, and so were his concerns. As I sat next to him, he complained about the unpleasant extended summer, and the long waits in court. He then said it must be very hard work for reporters as well. He had seen us standing at the courtroom’s door all day because we weren’t allowed in. I mumbled something about everyone having to do a job, when he asked me: ‘Do you get TA/DA?’ I told him we didn’t, but he was entitled to allowances, surely. He nodded, and I thought how the government had taken over the scientist in Mohapatra.

  I got down to my question. Was there any proof that Hemraj’s DNA was found in Aarushi’s room?

  Mohapatra gave me a canny answer: ‘How do you know it wasn’t?’

  From my understanding of his reports, I said, and from the CBI’s admitted position. He said that I should wait and hear his testimony.

  In court Mohapatra finally made his revelation: a bloodstained blue-and-white pillow cover on which Hemraj’s DNA was detected was recovered from Aarushi’s room.

  Yet just a few months before Mohapatra’s testimony, while referring to the same piece of evidence, the agency had told the Supreme Court: ‘One pillow cover was also seized from the room of the deceased Hemraj and the same was also sent for forensic examination . . .’

  The CBI counsel R.K. Saini explained that Dr Mohapatra could not be expected to remember the sources of various items seized, even if he was part of the team collecting evidence. He was therefore relying on a letter written three days after the seizures by an SP, CBI. SP Dhankar, however, was not part of the 12-member team that inspected the Talwars’ premises on 1 June 2008.

  Reporting on the day’s developments, websites and newspapers went with ‘Partial Male DNA Found on Aarushi’s Pillow’ or variations of it; no mention was made of the CBI’s affidavit to the Supreme Court or to the closure report.

  For a month after Mohapatra had made the claim, the CBI stuck stubbornly to the line that traces of Hemraj’s blood were found in Aarushi’s room. Eventually, by end-August, it became clear that the agency had been misleading the court. Hemraj’s pillow cover, which Mohapatra had said was seized from Aarushi’s room, was unsealed and displayed. A cloth tag attached to it said: ‘Pillow and pillow cover, blood stained (from servant’s room)’. This was the primary record of the seizure. The tag bore the signatures of Mohapatra’s CFSL colleague Dr Rajinder Singh and CBI inspector Pankaj Bansal.

  R.K. Saini, the tonsured CBI counsel, whose right eyebrow twitches uncontrollably during any exciting event, had at first tried to dismiss the exhibit, with a ‘Yeh to ho gaya’ (We are done with this). But when Mohapatra, slightly shamefaced, read out the tag, Saini, far from being embarrassed by the failed stunt, said it would make no difference at all. And he was proved right.

  ***

  ‘Preparation of fish curry starts from catching fish!’ Only a Bengali would use such a metaphor while trying to explain the processes of forensic science, and of course C.N. Bhattacharya was very much a Bengali.

  ‘Is it not?’ he continued, as I nodded in complete agreement. I had gone to meet the acting director of the CFSL in his office in the CGO Complex, where the CBI is also headquartered.

  He was a charmingly simple man. Interested in his science, the pursuit of which appeared to give him genuine satisfaction. If he were an exhibit, he would be one that proved an earlier generation of Bengalis was still thriving. He assumed, for instance, that everyone spoke and understood Bengali—this left his Delhi staff bewildered. It was the festive season, and he was missing the atmosphere of Kolkata during Pujas. ‘Yaa devi sarvabhute . . .’ he bellowed involuntarily early on in our conversation. ‘Pujor aamej, pujor aamej . . .’ (the puja mood/ambience) he kept repeating.

  I had sought the interview with Bhattacharya to understand the CFSL’s role a little better. From what I had seen in the trial, the integrity of the samples displayed and of the scientists testifying seemed questionable to say the least. Bhattacharya’s allusion to fish curry had to do with the collection, packing, handling and sealing of samples, and somewhat naively he said that courts throw out forensic evidence if any of these things aren’t done properly. (He had obviously not attended the Talwars’ trial.)

  Then I brought up the trickier question of the relationship between the CBI and the CFSL. I gave Bhattacharya a quick wrap of his subordinate Mohapatra’s performance in court. Why would a CFSL scientist go to these lengths for the CBI? Wasn’t the CFSL supposed to be an independent body, even if its primary purpose was to assist the CBI?

  Bhattacharya was a ballistics expert, far more comfortable talking about, say, subsonic handgun projectiles. He became cautious, but he also seemed concerned. He wouldn’t go into any integrity issues, but he looked out of his ninth-floor window and said there were ‘people of all types’.

  ‘You mean those that can be influenced . . . and those that can’t?’

  ‘Yes, something like that. See, ours is an extension of the CBI, we operate from the same complex. Some things are there that I personally do not like . . . it is quite common to be called by the CBI to their offices . . . Some people accept this. I find them going and reporting.’

  When I asked if the CFSL’s independence suffered as a result of this culture, Bhattacharya didn’t want to answer the question. He had told me several times during the conversation that he was only filling in as director till someone was appointed permanently. He looked away again, and said, ‘You could say there is a parallel administration.’

  Our conversation ended with Bhattacharya passing on instructions to one of his staff—a North Indian lady called Babita—in Bengali, about work that had been left pending. He was heading out of office and relished the prospect: ‘How many cups of black tea can you have?’

  His ‘Mrs’ hadn’t yet arrived in Delhi, and he was living on a camp cot, he told me. But with incredible warmth, he also asked if I would join him for dinner in his quarters—of a simple Bengali meal of mashed boiled eggs and potatoes, with rice—just to do ‘adda’, whenever I found the time.

  Neeraj Kumar, a former CBI officer who headed its Specia
l Task Force probing the 1993 Mumbai blasts and later became the Delhi police commissioner, told me about two cases in which a well-known scientist was suspected of corruption because he gave findings that completely undid what were, by all accounts, open-and-shut cases. In his view, this corruption among some scientists provided the CBI extra leverage over the CFSL when required.

  The CBI investigates a case, collects evidence. It then takes this to a lab under its control for analysis by scientists who are aware of their subordinate status, even if this isn’t official. There is no separation between investigation and prosecution, so the agency has its own counsel, who then briefs the scientists on what they should say. The testimonies and arguments take place in a designated CBI court, like the one in Ghaziabad.

  ***

  At the tea stall, under the sheesham tree or in the squalid lanes that connected everything in the Ghaziabad court, there was one topic of conversation that reared up as a refrain. This was about how the Talwars managed to pay their bills.

  The Talwars’ financial means found its way into Judge Shyam Lal’s court through an application filed by them in early November 2012. The defence counsel pleaded that the accused, Drs Rajesh and Nupur Talwar, needed to earn their living in order to mount their defence. Unpredictable court dates—each date consumed a full day—did not leave room for them to pursue their vocation to earn the money they required for sustenance. For once, the court ordered in favour of the defendants. It would hear the matter twice a week, on Tuesdays and Wednesdays, rather than at random.

  Starting at the top, the Supreme Court, where Nupur Talwar was granted bail in September, there was a distinguished law firm—Karanjawala and Co., run by the socially connected Raian Karanjawala—and a set of redoubtable (and very expensive) lawyers who appeared on the Talwars’ behalf. Among them were the former solicitor general Harish Salve, future attorney general of India Mukul Rohatgi, former additional solicitor general K.V. Vishwanathan and Rebecca John, a prominent criminal lawyer.