by Avirook Sen
So here is where common sense needed to be recalled to court: How could the Talwars, a couple of average build, manage to lift, shift and place an item so heavy exactly where they wanted it, when a posse of policemen (there were at least half a dozen present) could not manage the same feat of strength?
The cooler panel actually had handles, as these things usually do, to make moving them around convenient. Nanoria was shown pictures of the panels with the handles clearly visible. But he steadfastly maintained that he could not see them. The same photographs also showed bed sheets hanging a few feet from where Hemraj’s body lay—a crude device used by the killer(s) to prevent clear sight of the body from the adjacent terrace. He could see the sheet, but couldn’t explain why he didn’t seize it.
***
As part of the parade of policemen who were called to witness was a senior officer who could damage the defence’s case most. This was Mahesh Kumar Mishra, the Noida SP, the seniormost officer on the scene. Tanveer Ahmed Mir was genuinely apprehensive about his testimony and cross-examination.
In indignation, rage and, in retrospect, poor legal advice, Rajesh and Nupur Talwar had filed a protest petition against the closure report filed by the CBI. In it they made an admission that had huge potential for damage. They said that they had locked Aarushi’s room from the outside at about 11.30 on the night of the murders and kept the key in their bedroom. The Talwars went on to say that they had told Mahesh Mishra about this.
Mishra testified that Dr Talwar also told him that it was possible an intruder took the key from his room and let himself into Aarushi’s room. This scenario was outlandish: someone is let into the flat by the Talwars’ servant Hemraj; the murderer then slips into the Talwars’ bedroom, where the couple are asleep, slips out with the key with which he enters Aarushi’s room, murders her, kills Hemraj, drags his body up to the terrace and comes back for a couple of swigs of Ballantine’s whisky.
The defence argued that Mishra invented the story. At the heated hearing, defence counsel Mir asked Mishra whether he had put this important fact down on paper anywhere in the first days of the investigation. Mishra’s best answer was that he had told his ‘superiors’ about it.
The first time it was put on record is in Mishra’s statement to the CBI nearly two months after the murders. But if Mishra ‘invented’ the scenario of Dr Talwar locking his daughter in from outside (incidentally, this was the type of locks in hotel rooms, so while Aarushi could open the door from the inside, no one could enter without a key), why did the Talwars claim they had done so in their petition against the closure report?
The Talwars never had a clear explanation for the key. But it wasn’t the only way to enter Aarushi’s room. As the Usha Thakur adventure revealed, the toilet attached to Aarushi’s room was accessible to guests without them having to go through her room. So entry was clearly possible without a key if the toilet wasn’t locked from the inside. But facts such as a possible second entry point didn’t dispel the niggling doubts about the Talwars’ guilt.
The policemen, servants, forensic scientists and the likes were done testifying. As the first quarter of 2013 came to a close, it didn’t look like the prosecution had much more to say—only 35 of the 141 listed witnesses had appeared. But that still left three who were essential to the CBI’s case.
Prosecution witness number 36 was—finally—Dr Naresh Raj. Dr Raj introduced the potent idea of surgical incisions—the use of a scalpel in the act of the murders. At the trial he would go much further. There was an unmistakable world-weariness about the post-mortem doctor.
He seldom looked up or spoke up in court. In the course of his deposition, a suggestion was made that he was involved in a major medical equipment scam also being investigated by the CBI. This involved scores of doctors and technicians in the Uttar Pradesh health system. On the days the ‘NRHM (National Rural Health Mission) scam’ hearings took place an alarmingly large number of men of different shapes and sizes would be stuffed into the (well under capacity) courtroom dock, barely able to move. The net had been cast very wide and every government doctor in Noida was afraid he would be implicated. Dr Raj denied any involvement.
He began his deposition: ‘I conducted the post-mortem of deceased Hemraj at 9.00 p.m. on the night of 17.05.2008 under artificial light . . .’
The first part of his testimony was going along predicted lines. The prosecutor asked Dr Raj if the cuts to the throats of the victims could have been caused by a scalpel. ‘Yes, it can be caused by a surgical scalpel,’ he said.
This was expected, and in line with what Dr Raj had told Kaul in his statement in October 2009—that the wounds were caused by a sharp-edged surgical instrument and inflicted by a surgically trained person.
But the testimony soon moved into unexplored territory. Asked to describe the state of Hemraj’s body (he saw it 44 hours after the murder), Dr Raj said, ‘The penis of the deceased was swollen.’ He proceeded to give reasons: ‘The swelling in the penis of the deceased was because he was either in the midst of having sexual intercourse or he was about to have sexual intercourse and immediately he died [sic].’
This alarming claim put the focus back on the alleged illicit, socially unacceptable, sex that titillated the Indian middle class.
In response, Tanveer Ahmed Mir referred to a widely accepted forensic science text, Modi’s Textbook of Medical Jurisprudence and Toxicology, and read out the relevant section on the signs of a body’s putrefaction after death. ‘From 18 to 36 hours or 48 hours after death, eyes are forced out of their sockets, a frothy reddish fluid or mucus is forced out of the mouth and nostrils, abdomen becomes greatly distended, the penis and scrotum become enormously swollen.’
On what basis had Dr Raj reasoned that Hemraj was having sex or was about to?
‘My statement that the reason for swelling found in the penis of the deceased Hemraj was that he was murdered either while he was in the midst of sexual intercourse or just before commencing intercourse is based on my marriage and experience of my marriage . . . I cannot produce any authority in support of my statement.’
That was not all. When Mir suggested to him that the experiences of his marriage surely could have nothing to do with this case, the doctor replied robotically: ‘It is incorrect to suggest that my marriage and experiences of my marriage has no connection with the swelling that I found in Hemraj’s penis.’
It was unusual testimony.
Dr Raj had been interviewed by investigators on two occasions within months of the post-mortem. Why had he not mentioned his reasons for the swelling in the post-mortem report or to any investigator recording a statement? Why hadn’t he put the observation on record in the AIIMS committee report on which he was a key panellist?
‘When I conducted the post-mortem of the deceased Hemraj, I did not form the opinion on the reasoning I gave for the swelling in his penis, as such, I did not write this in the post-mortem report. I thought, when somebody asks me the reason, I will tell them.’
Although his reasons appear for the first time in his testimony to the trial court, Dr Raj insisted that it was ‘incorrect to say’ he didn’t reveal them to investigators earlier. As for the AIIMS committee, questions regarding the swelling of the penis never came up.
The cross-examination of Dr Naresh Raj ended in the customary way. Mir told him he was lying in court under pressure from the CBI. Dr Raj said: ‘It is incorrect to suggest that my theory about the swelling of Hemraj’s penis has been stated by me in the court at the instance of the CBI.’
The subject of the swollen penis was thus laid to rest.
Apart from a confirmation of his opinion that a scalpel was the second murder weapon, the CBI wanted to seed two other ideas through Dr Raj’s expert testimony: that Hemraj’s body wasn’t in a state of decomposition and was therefore easy to recognize (implying that Rajesh Talwar’s confusion when confronted by the body was a sign of evasion); and that Aarushi and Hemraj were having sex. Dr Raj was the first prosecution w
itness to actually say this in court.
***
Imagine for a moment that the case for a murder conviction is like a book with 20 chapters. If all 20 are written and published, you have a ‘book’. But what if chapters 16 through 19 are missing—just blank pages? It isn’t a book any more, is it? At best, it is an incomplete book.
There is no such thing as an incomplete conviction in a murder trial. It is a binary game: guilty or not guilty. In the kind of case that was at hand, one where circumstantial evidence was heavily relied upon, the ‘book’ didn’t just have to have all its chapters, it was necessary for each one to lead to the next. That was the law: every link in the chain of circumstantial evidence has to be fixed, and unbreakable, for a guilty verdict. If the defence was able to manipulate the prosecution in a way that gaps remained, then a wise judge would see them and acquit.
There was another view. If you coaxed the prosecution’s witnesses into filling in the blanks by telling a story that was illogical and unfounded on the facts on record, a wise judge would see that too, and he would acquit.
In the Aarushi–Hemraj murders, the issue was whether it was more expeditious for the Talwars to have the CBI leave blank pages or to have them narrate absurd, invented scenarios. The missing ‘chapters’ had to do with the six hours between midnight of 15 May and 6 a.m. the following day. What took place in the flat during those hours?
Although there had been insinuations to the effect that Aarushi and Hemraj were having sex, the most recent being Dr Raj’s theory on Hemraj’s post-mortem erection, no witness had directly said so. This was one of the ‘blank pages’. No witness had described how the actual assaults took place either, and this was another chunk that was missing.
Within the team of defence lawyers, there was a clear difference of opinion on how to tackle the cross-examination of the two final witnesses in the trial, Dr M.S. Dahiya and A.G.L. Kaul.
Tanveer Ahmed Mir led the defence; Satyaketu Singh, who practised out of Ghaziabad, supported him. It was part of Mir’s routine to prepare a questionnaire for all his cross-examinations and run it by his clients, chopping and changing after arriving at a consensus. But Mir had no control over what Singh might ask. This frustrated Mir, but from the Talwars’ perspective, it was important to respect the local knowledge and experience that Singh brought to the table. Without the support of the Ghaziabad regulars, the Talwars would be lost in the premises of the ‘kacheri’.
Satyaketu Singh had played a significant, perhaps underrated, role in the Talwars’ defence. His small chamber was often the alternative venue for the Talwars’ less than private conferences with their lawyers. He was basically a civil lawyer—one reason the Talwars felt they had to bring the criminal law specialist Mir in—but he was also someone who had an excellent feel for how the Ghaziabad court worked. He commanded a fair amount of respect in the premises: in part because he had been around for a few decades and knew the system, but mostly because people thought of him as upright. He had a straightforward, even stern, demeanour, and this didn’t change when he appeared before Judge Shyam Lal.
For one thing, Singh wasn’t afraid to stand up to Judge Shyam Lal. On at least one occasion he had told the judge before a packed court that he was biased against the Talwars. Judge Shyam Lal knew Singh’s standing in Ghaziabad—censuring a man like him would prove to be a misadventure. He kept quiet.
In court, Singh’s manner was assured, and his delivery was clear. He never sought out the press, nor did he ever make mischievous interventions like challenging the judge’s fitness to deliver a verdict because he had technically passed retirement age as other Ghaziabad regulars might have. However, he had often advised the Talwars, through the duration of the trial, to seek a transfer from Judge Shyam Lal’s court. He felt they were doomed if they were there. He pointed out that the judge seemed to ignore the compelling arguments that the defence made.
The insistence on this point was another example of the differences in work culture among the Talwars’ lawyers. The Ghaziabad lot understood that getting any purchase where they practised meant working the system. Mir’s vantage was one from which he had seen the system work—at least in relative terms. The things that went on in Ghaziabad wouldn’t get past a judge in the Delhi courts, where Mir did most of his business.
The advice to plead for a transfer could also be seen as strategic. If such a petition was made and heard, it may well have eaten into Judge Shyam Lal’s time—after all, if the Talwars were able to stall proceedings for a month, Judge Shyam Lal would be gone. If a transfer petition failed, the Talwars would no doubt have to come back to an angrier version of Judge Shyam Lal. The chances of failure were high. The Supreme Court’s response when the Talwars petitioned for transfer of the case out of Ghaziabad following the attack on Rajesh was to warn the Talwars of impertinence and reject their petition. The Talwars would have to carry the burden of that order into any attempt they made to seek transfer out of Ghaziabad. Had they approached the Allahabad High Court again, the CBI would just have placed the 2012 Supreme Court warning on the table. It is unlikely that a high court judge would differ. The Talwars would have had to crawl back to Judge Shyam Lal.
Singh had made valuable contributions during the trial—he had exposed how Kaul illegally broke the CFSL’s seal to try to coerce Umesh, the Talwars’ driver, into identifying two specific golf clubs—but Mir was now the new lead counsel, and though his style of functioning was pleasant, it was also direct. The Delhi lawyer had come into the trial several months after it commenced, well past the ill-tempered summer of 2012. He was also paid much more for his appearances. This led to rumblings and disagreements in Ghaziabad.
Mir’s cross-examinations reflected the view that the ‘blank pages’ in the CBI’s case would raise reasonable doubt. Every day he was in court, he did his best to keep them blank by not allowing witnesses ‘to spin a yarn’. But Singh had long been of the view that the CBI had no clue about how the murders had taken place and that the agency had tried to force-fit a motive into an invented scenario. He felt it was best for his clients that the improbability and incoherence of the CBI story was exposed.
Mir and Singh took their differences into the courtroom.
***
Dr Mohinder Singh Dahiya made his much-awaited appearance in Ghaziabad in early April 2013. This was as much his case as Kaul’s. The story of the murders had been laid out during the trial just as Dahiya had told it in his report in late 2009.
The Talwars considered Dahiya the author of their doom, writing out their conviction sitting hundreds of miles away in Gandhinagar, Gujarat. They had never seen the man. I asked Nupur about her first impression of him. What did he look like to her?
‘Like death,’ she replied.
The prosecution would never use the phrase ‘honour killing’, but the narrative pointed there every step of the way, because the case was no more than an extension of the tale told by Dahiya, and he had said that the murders were the work of people interested in the Talwars’ family honour.
The fundamental flaw was Dahiya’s assumption that Hemraj’s blood was found in Aarushi’s room. It wasn’t, and this had not just been admitted by the CBI in several instances, it had also been established in the court where Dahiya was about to testify. Without that ‘fact’, the story of the honour killing fell apart. So did Dahiya’s confident assertion that Aarushi and Hemraj were attacked in the teenager’s bedroom. But would the man admit that he was in error?
Dahiya’s testimony opened with a brief description of the decades of work he had done in forensics, the honours conferred upon him and the book he had written. Then, it moved to the more substantive parts. There were three: his theories on the weapons, the motive and the ‘dressing up’ of the crime scene. In each of these areas, Dahiya’s voice had been the most authoritative.
Mir rose to challenge this authority every minute of the way. Screaming that Dahiya’s report was ‘unscientific and subjective’ and had no place in the cou
rt’s record, Mir said, ‘The witness cannot be allowed to give expert testimony! How can he solve a murder by just looking at photographs? How can the word “findings” be used for what he has written?’
The judge allowed Dahiya to continue.
He told the court that he had received photographs, documents, a summary of the case and a questionnaire from the CBI on 13 October 2009. On the basis of these, he submitted his report 13 days later describing in some detail how and why the murders took place. When he took the stand, that document, Document 79, was ‘proved’ by its author for the purpose of the trial. Dahiya said he stood by every word he had written in it.
The summary wasn’t read out, but Dahiya was more explicit in court than he was in his report and actually named the Talwars.
Mir jumped in again, objecting furiously at this. The judge sustained the objection, and Dahiya had to rephrase. He was forced to return to the language of exclusion: that ‘no outsider’ could have committed the crimes.
Dahiya’s testimony also showed that his involvement in the case had begun even before he received the materials for his report—a fact that had not been put on record earlier. On 10 October 2009 he went to survey the scene of the crime along with CBI officials. He told the trial court he saw ‘the location and situation of the flat . . . [and found] the walls had been painted’. He later came back to the CBI headquarters in Delhi and had ‘detailed discussions with the investigating officer A.G.L. Kaul’.
(Two days later, on 12 October, in a statement before A.G.L. Kaul, Dr Raj would introduce the idea of a scalpel and a surgically trained person; the very next day, Dahiya received his questionnaire, and some documents, including Dr Raj’s latest statement.)