by Avirook Sen
This letter was marked ‘camp Hyderabad’. Had he visited the lab?
‘I had gone to the CDFD for a discussion but there the receptionist told me that no scientist will meet you and whatever you have to ask, give it in writing.’
Why did Kaul have to go through all of this?
‘The accused persons had raised the issue with the Allahabad High Court; therefore I had to take a clarification.’
But hadn’t the Allahabad High Court already been shown the photographs of the exhibits and told there had been a typographical error before any clarification was sought?
Kaul agreed: ‘Before taking any clarifications [from the CDFD], orally, the honourable high court had been given this clarification.’
So the court was shown the photographs?
‘I do not know whether the photographs of the purple-coloured pillow cover seized from Krishna’s room and that of the pillow and pillow cover seized from the room of Hemraj had been shown to the Allahabad High Court.’
Wasn’t it really the case, said Mir, ‘that the stickers were changed on the purple pillow cover and pillow and, thereafter, their photographs were taken and shown to the Allahabad High Court?’
‘It is incorrect to suggest that,’ said Kaul.
And wasn’t all this done, Mir continued, ‘as a cover-up exercise, and the clarification obtained from CDFD Hyderabad in connivance, in order to conceal the tampering that had been done?’
‘It is incorrect to suggest that,’ said Kaul.
Mir had bitten into something meaty. He asked Kaul who took the pictures of the sealed items and on whose authority.
‘The exhibits that had been returned by the CDFD had been photographed by the CFSL because I had asked them to do so. I needed the photographs for my investigation, but I did not place any of them on record . . . They were not relied-upon documents.’
Now that Kaul had admitted that the photographs were taken on his orders, it was time for Mir to bring on the heavy artillery. He produced a certified copy of the counter-affidavit that the CBI had filed before the Supreme Court. In its annexures were copies of the photographs, in colour.
Mir asked Kaul whether he had filed the affidavit and the photographs.
‘I had filed my counter-affidavit . . . Without seeing the original photographs, I cannot say whether their copies had been filed by me along with it.’
Kaul simply refused to answer any questions about the affidavit or the photographs he had attached. The court recorded:
Counsel for the accused has specifically sought attention of the witness to the copies of the photographs which had been supplied to the accused along with the counter affidavit and upon seeing the same, witness states that he can say nothing about the coloured photographs at all.
Mir moved forward for a final thrust: ‘The photographs that were placed on record before the Supreme Court were not placed on record before this honourable court because upon doing so, the tampering done by the CBI would have been caught!’
Kaul said: ‘It is incorrect to suggest this.’
***
Tanveer Ahmed Mir was pretty satisfied with his cross-examination. It had taken the best part of four days, but he believed he had done enough. He thought he had succeeded in challenging not just the facts that the CBI had presented. He felt he had, through the evasiveness that he was able to elicit from Kaul, made a good case for sinister intent. The motives for this intent were never his concern. These may have exercised the mind of the observer, but the only person who really knew them was Kaul himself. Why would he be silent on the photographs of the pillow covers? Why wouldn’t he say exactly when he figured out there was a typo? Why would he say his seniors had tried to prevent him from going the distance in this case?
But these questions were irrelevant to the issue at hand: the guilt or innocence of the Talwars. The proof of guilt, in a court adjudicating on the basis of circumstantial evidence, could only be arrived at if the whole story was told. No gaps. Of the five days that Kaul had been in court, he had had the chance to tell that story—the story of the time just past midnight on 15–16 May 2008—on the first day. He had not done so. And Mir, with his relentless questioning of Kaul’s methods and intent, had prevented him from doing so over the best part of the next four days.
The ‘gaps’ remained. The big one was: ‘How did the attack(s) actually take place?’
A description of this had to have verbs, words that described actions. Kaul had provided none about the assault.
At the time, Mir thought that a conviction was virtually impossible if these pages in the CBI’s story remained blank. To him, blank pages were better material to mount a defence. If Kaul said nothing, it followed that he didn’t know. If he didn’t know, how could the judge? It was important for Mir not to allow Kaul an ‘entry’. The speculative sequence that Kaul had would waste away in his hand if he couldn’t play it. So far, Kaul hadn’t been afforded the opportunity.
So far.
***
As Mir’s supporting act, Satyaketu Singh rose to ask a ‘few more questions’ to complete Kaul’s cross-examination. In very little time, on 24 April, the final day of Kaul’s cross-examination, he got to the question that he had most often talked about during the trial. The one question that Mir did not want asked: ‘How did the murders actually take place? What was the sequence of events on that night?’
The standing suit of low clubs had gained entry.
Kaul told the story as if he was an eyewitness. ‘[Sometime after midnight] Dr Rajesh Talwar heard a sound. He got up and went to the servant’s room and found that no one was there . . .’
The rest of the story was faithfully retold where it mattered most—in the mainstream media. This is how the India Today website narrated it, with graphics to go:
‘There were two golf sticks lying in Hemraj’s room one of which Rajesh Talwar picked up. He heard a noise from the room of Aarushi. The room door was not locked and was just shut. He opened the door and found Aarushi and Hemraj were in objectionable position on the bed of Aarushi,’ Kaul said in his testimony.
Kaul said finding them in such a position, Rajesh Talwar hit on Hemraj’s head with golf stick. By the time he gave a second blow the servant’s head moved from the position and the stick hit Aarushi on her forehead . . .
The officer said the noise generated in the process awoke Nupur Talwar who rushed to Aarushi’s room.
‘By the time the injured Hemraj had fallen from the bed. Both checked the pulse of Aarushi and found her near-dead which scared them and planned that the servant should be executed so that no one comes to know about the incident,’ Kaul said before the court.
He said both decided to hide the body of Hemraj and dispose it of on getting suitable opportunity.
The duo wrapped Hemraj’s body in a bed-sheet and dragged him to terrace where they slit his throat, covering the body with a cooler panel, Kaul said.
He said after coming to the room, they dressed up the crime scene by arranging the bed sheet and toys.
They slit Aarushi’s throat, to ensure that wounds on Hemraj and their daughter look similar, and Nupur cleaned her private parts, he said.
Giving details of his findings, the officer said the dentist couple cleaned blood stains, disturbed the router, collected all the clothes which were used to clean blood and also the small sharp edged weapon used in the killing with an intention to dispose them off.
‘They cleaned the golf stick which was used in the murder and hid it in the loft of Aarushi’s bedroom. They locked the door of Aarushi’s room from outside. They locked the outermost door from inside and wooden door from outside and entered the flat through Hemraj’s room, the door of which opened between these two entry doors,’ he said.
Both waited for their maid Bharti to come while Rajesh kept drinking liquor all this time.
***
How did Kaul know exactly when Hemraj fell off the bed? Or that his head had moved which is why Aarushi was struck? Or
that both parents checked Aarushi’s pulse to ascertain that she was dead?
These were questions that the court had to deal with. Plausible or not, Kaul used this opportunity to tell the court his theory. For the electronic media it was more than that, it was a script crying out for visual recreation. The various renditions weren’t necessarily more ‘true’, but they certainly made Kaul’s story more ‘real’.
***
Tanveer Ahmed Mir was beside himself with what I can only describe as grief at this turn of events. His case—that the CBI had no evidence, not even an idea, about how the murders actually took place—had just disintegrated. However outlandish the story might have been to those who followed the case, it had been told.
It was for the judge to now decide whether it was possible to explain how Kaul knew that the parents took Aarushi’s pulse. Or why Rajesh’s DNA wasn’t found on the whisky bottle even though he drank directly from it and his sputum was bound to leave traces. Or why Hemraj, supposedly in the midst of coitus, would eventually be found fully clothed, wearing his slippers, with no traces of Aarushi’s blood on him, even though the fatal blow to her was allegedly struck while he was on top of her.
Following his narration, Kaul faced some final suggestions from the defence. That Aarushi and Hemraj were not in the teenager’s bedroom together at all. That the question of Rajesh Talwar attacking them there didn’t therefore arise at all. That he had concealed material that may have helped acquit the Talwars and deliberately not investigated the real culprits. For each of these suggestions, Kaul had the same five words at the beginning of his response: ‘It is incorrect to suggest . . .’
And with that, the prosecution had closed its evidence. It had nothing more to say.
The investigating officer is usually the final witness for the prosecution. When Kaul had stepped in to testify, it was obvious that the CBI wouldn’t call any more witnesses. Only 39 of the 141 witnesses relied upon by the prosecution had deposed, but the agency felt that they were enough to make the case.
There was a context to this. It was the end of April 2013, and Judge Shyam Lal was due to retire in November. Several things remained to be done before the judge could pronounce a verdict. The Talwars would have to go through a process under Section 313 of the CrPC where the judge recorded their responses to what each prosecution witness had said: he had a list of 800 questions for them. Defence witnesses would then be summoned, their statements and cross-examinations recorded. The last stage was that of final arguments.
Each of these was a time-consuming procedure—the examination of the prosecution’s witnesses itself had taken close to a year. Not the least because of the unpredictable nature of working days in Ghaziabad, with all its ‘condolences’ and strikes. But the CBI felt that all pending procedures would have to be compressed into that time—the prosecution stood its best chance with Judge Shyam Lal presiding. In part, the shortening of the list of witnesses had to do with the need for speed. In part, it was strategy. There were several witnesses on the CBI’s list whose testimony would have favoured the Talwars.
Sushil Choudhry, the eye doctor K.K. Gautam had claimed had asked him to ensure the word rape wasn’t mentioned in the post-mortem. Choudhry had denied vehemently that he said such a thing, but not in court, because he was never summoned. Sunita Rana, the lady constable on the scene, could be used to establish the fact that the flat was cleaned in the presence of police personnel while the Talwars were away at the crematorium.
Witnesses for the CBI had routinely changed their statements. What they had told investigators earlier, especially to those from Arun Kumar’s team, was often characterized as something they had either no recollection of saying or not said at all. When the defence challenged them on the new ‘facts’ they had revealed to Kaul’s team, they regularly said they had told the CBI this earlier too. They did not know why people on the earlier team had chosen to omit these facts.
One instance of this is the testimony of the Talwars’ friend Rohit Kochar. In a statement made to Subinspector Yatish Sharma in October 2008, Kochar said he had gone to the Talwars’ flat, but said nothing about observing ‘wiped bloodstains’ on the stairs leading up to the terrace. In June 2010, in a statement recorded by Kaul, Kochar’s memory of the bloodstains was vivid.
The defence felt it had to be given the opportunity to confront the officers with this: Did they really leave crucial details out? Or had the witnesses been pressured into ‘recalling’ them after more than two years?
And then, there was Arun Kumar, Kaul’s predecessor. It was Kumar who had pointed to the guilt of the servants before he was replaced. What were his reasons? Within a week of Kaul’s deposition, the Talwars made a list of witnesses the CBI had dropped and applied to Judge Shyam Lal seeking he summon them as court witnesses—that is, neither for nor against any side. They argued that these people could not be reasonably called to testify for the defence because nine of them were serving police officers, and there was no way they could be persuaded to testify against the CBI.
Judge Shyam Lal rejected the application summarily and told the Talwars that he would begin their ‘313’ right away. Without the evidence of the additional witnesses, the Talwars felt their responses to the judge’s questions in the 313 would be considerably weakened. They knew that going to Allahabad was pointless—by the time they were heard, the 313 would be over. That court was notorious for its backlog.
Not for the first time, Rajesh and Nupur Talwar approached the Supreme Court directly. They prayed for direction to the lower court to summon additional witnesses, quoting an order in the 2002 Gujarat riots Best Bakery case:
The Learned Trial Court and its obligation in a criminal trial is to take steps for discovery, vindication and establishment of truth and hence the trial should be a search for truth and not a bout over technicalities, the presiding judge must cease to be a spectator and a mere recording machine . . . In case the prosecution or the defence has failed to produce material witnesses and material evidence, which is necessary for just & proper disposal of the case and to uphold the truth then it is a duty enjoined upon the trial court to . . . call all such witnesses whose testimony can be an aid to uphold the truth and in order to impart justice with fairness and impartiality.
The Talwars’ plea slipped under the news radar that day because the media was focused on the Supreme Court’s decision in the actor Sanjay Dutt’s case (related to the 1993 Mumbai blasts). But it was a busy Friday even otherwise. The Talwars’ petition was listed for 2 p.m., but at the ‘end of the board’—meaning it would be one of the last things entertained by Justices Patnaik and Sikri. In the event, it came up at 4 p.m., minutes before the closing for the day—and the summer. The bench had had to deal with 73 matters. Another half a dozen urgent ones (like the Talwars’) came up after. In one case, a demolition supposed to take place on Friday was stayed. The Talwars and the CBI got under 60 seconds.
Just enough time for the defence’s K.V. Vishwanathan and Tanveer Ahmed Mir to tell the court their matter was really urgent, and for the prosecution’s Sidharth Luthra to mumble something about why they hadn’t approached the Allahabad High Court first. But the judges had had a long day. They moved the application to a vacation bench. When this bench met the following week, it told the Talwars they had to go to Allahabad with their grievance, and made the accommodation of requesting the high court to hear the matter out of turn.
Their 313 was in progress, so they went back to the trial court to plead with Judge Shyam Lal to grant them leave to approach the high court along with Dinesh Talwar who had assisted them every step of the way. Saini sprang up to object, and resorted to the language of the street: ‘Kabhi yeh bhai ko bhejte hain, to kabhi baap ko! [Sometimes he sends his brother, sometimes his father!] They are just trying to delay the trial.’
Rajesh Talwar had hot tears of anger in his eyes: he had been very close to his father, an eminent doctor who had passed away a decade ago. Judge Shyam Lal ignored Saini’s remark.
He was furious at the Talwars, and let this be known in his order on 14 May. It began: ‘Undaunted by their unsuccess in the Supreme Court . . . they have now approached the Allahabad High Court . . .’
He gave the Talwars two days’ leave. If they failed to appear after that, he would cancel their bail.
And when the Talwars’ plea came up in Allahabad, it was rejected on the grounds that it was the prosecution’s prerogative who it wanted to call, and the trial judge’s discretion to summon witnesses to his court.
All of this was happening while the 313 was in progress. Most of the questions in the process were routine, but Nupur Talwar answered one tricky one for the record. This concerned the keys to Aarushi’s room. In their 2011 protest petition filed in response to the closure report, the Talwars had said the keys were kept in the bedroom that night, as they usually were. The policeman Mahesh Mishra had confirmed they had said this in the trial court.
To the judge, Nupur said that she had used the key to enter Aarushi’s room sometime after 11 p.m. Rajesh had complained the Internet was slow, and the router kept in Aarushi’s room needed to be switched off and turned on again. Nupur told the judge that she may have inadvertently left the key in the keyhole as she returned to her bedroom.
She had obviously changed the Talwars’ stand: they had initially said the keys were in their bedroom; at the trial Nupur Talwar claimed she may have left them in the door after she returned to her bedroom having switched the router on and off. That they could not remember this worked heavily against them.
***
As the 313 process drew to a close, it was time for the defence to seek the court’s permission to call its witnesses. But before that, it needed material placed on record before the court, and permission for its witnesses to examine exhibits. The narco reports of the servants and the raw data from the forensic tests were essential. The servants’ scientific test reports would give the defence the opportunity to present a narrative that was more plausible than the one the CBI had offered.