by Avirook Sen
The raw data from the forensic tests would offer them the opportunity to have the reports of the CBI’s forensic labs scrutinized by independent experts. The raw data was important because forensics is a science of interpretation: a scientist’s report is his view of the data, and depends on a number of factors including competence and protocols followed. This is why, even in this case, there were a number of instances where the same sample threw up two different results in two different labs.
The witnesses for the defence needed this material as well. The Talwars intended to call a former AIIMS department head of forensic science, Dr R.K. Sharma. And a London-based DNA expert, Andrei Semikhodskii, director of Medical Genomics Ltd, a private research company. Also on their list was Dahiya’s colleague Dr S.L. Vaya, whose department had conducted the narco tests on Rajkumar, Nupur and Rajesh. Dr Vaya also had access to Krishna’s and Vijay Mandal’s tests, and she and her colleagues had written the most comprehensive reports on the subject.
The prosecution had used 39, the defence wanted to call a third of that number, but no sooner had they filed their list of 13 in mid-June 2013 than the CBI responded by saying that not one of the 13 was of any use to the trial. Two examples: A year earlier, the CBI had approached the Supreme Court saying it had to get the pathologist Richa Saxena’s testimony while Nupur Talwar remained in jail—or else she would influence the witness. It then said Dr Saxena, who had examined Aarushi’s vaginal smears, could not be found and so could not depose. Now it told the court that she was abroad and it would waste everyone’s time if she was summoned. And since the narco reports were not relied upon, Dr Vaya was of no use either.
The court chopped the Talwars’ list down to seven. Their lawyers were not happy with this. Dr Vaya and Dr Saxena were among the casualties. The Talwars didn’t challenge Judge Shyam Lal’s order. The pruning of their witness list was a mild setback. The Talwars’ pariah status, thanks to the stories about them, made it difficult to find anyone to speak on their behalf. Dinesh Talwar told me, ‘No one wants to get involved . . .’
But Rajesh and Nupur’s bigger problem was that Judge Shyam Lal had also rejected the application for placing on record the narco test reports of the servants and the raw data of the DNA examination, holding that the CBI was right when it said this was yet another attempt by the Talwars to delay ‘the justice’.
Everyone was looking at the calendar. It was June. Judge Shyam Lal retired in November.
***
For the next two months, two stories ran parallel. One was taking place in Ghaziabad, where defence witnesses were being examined. The other, in Allahabad, where the Talwars were compelled to go—once again—because of Judge Shyam Lal’s latest rejection.
The first witnesses for the defence appeared on 20 June. Rajendra Kaul, a friend of the Talwars, told the court that he found the parents grieving when he arrived at their flat on the morning after the murders.
The second witness, Dr Amulya Chaddha, carried the answer to an extremely relevant question in his pocket. The question was: Why weren’t the Talwars ever asked to hand over their surgical scalpels? The object told the answer best, and Dr Chaddha, a veteran dentist, produced two dental scalpels. They had tiny cutting surfaces (1 cm and 3 cm): incisions could be made with the instruments using the strength of only the fingers and the hand. It was hard to visualize them as weapons that could slash a victim from ear to ear, cutting through all the tough tissue in the neck.
The no. 15 scalpel (1 cm edge) was the standard instrument for dentists, explained Dr Chaddha. Its use was mainly in cutting through the gums.
‘Can they cause cuts in other parts of the body?’ asked Saini.
‘Yes,’ replied Dr Chaddha.
The impeccably mannered and graceful octogenarian Dr Urmila Sharma was next. She was a gynaecologist who had known the Talwars for about a decade and, even though she wasn’t close to them, she had agreed to testify on their behalf. Her aged legs, Dr Sharma said, wouldn’t be able to take the strain of standing through her deposition. Judge Shyam Lal immediately ordered a chair.
Dr Sharma’s deposition was meant to counter Dr Dohare. She explained the normal discharges in girls that age. And that these wouldn’t stick to the walls of the vagina unless it was infected. Finding traces of the discharge at the mouth of the vagina and not in its walls was not, therefore, ‘strange’, as Dohare had put it.
In his final statement to Kaul, Dohare had gone as far as to say that Aarushi’s vagina was so dilated that her cervix was visible. At the trial he retracted the cervix bit, but the rest remained.
Dr Sharma countered Dohare’s observation, saying that after death the vaginal canal could not be seen unless an examiner used an instrument.
‘And what if the girl’s hymen is ruptured and she is used to sexual intercourse and her vagina is cleaned after her death? Will it not remain open?’ asked Saini.
‘The mouth of the vagina will still not remain open,’ said Dr Sharma.
‘And what if force is used after rigor mortis has set in?’
‘It may remain open but there will be injury marks.’
The day the gynaecologist deposed, the Talwars also submitted a report compiled by Dr R.K. Sharma, the former AIIMS forensic scientist. Dr Sharma’s report focused on the alleged murder weapons. He had studied golf club injuries reported from all over the world, the kind of swings which caused them and the space required. The fractures that were found on the victims and the nature of the cuts to the neck were impossible to inflict with a golf club and a scalpel, he said. And there wasn’t enough space in Aarushi’s room to swing a club to inflict the fatal blows. He also weighed in to buttress the gynaecologist’s view.
In his testimony Dr R.K. Sharma said that Dohare had no business writing ‘no abnormality detected’ in the post-mortem report. And that if the vaginal cavity is interfered with after death then ‘one is bound to see bruises, lacerations, tears which would be clearly visible during the post-mortem’.
At the end of June, Dr R.K. Sharma’s testimony came to an abrupt halt due to events in Allahabad. The Talwars had gone to the high court to challenge Judge Shyam Lal’s order refusing them access to the servants’ narco reports and any additional DNA data. Mir would later tell me that this was the first time during the trial that he sensed he was getting a fair hearing. This probably had something to do with the immediate outcome. On 28 June, the high court stayed proceedings in Ghaziabad, till it adjudicated on what was to be done about the documents.
Within a week, and much to the relief of the prosecution, the high court decided that it would not allow the narco reports. It held that, as a general principle, narco reports could be used by the accused to help establish innocence, but as the servants were not the accused, their examinations couldn’t be admitted. The raw DNA data and other material, however, had to be made available to the defence. The order was detailed, and quoted the best practices followed in the UK. Its central point was that the defence had the same rights of scrutiny and examination of evidence as the prosecution. It ordered Judge Shyam Lal to direct the CBI to provide the material.
The high court order was specific, but the matter was technical. This could have been resolved if the spirit of the order—the principle of reciprocity—was kept in focus. Instead, it became an argument about what constituted ‘raw data’. The CBI interpreted it in a way that it had to part with the least amount of information, and provided what it claimed was all it had. The Talwars demanded more. Over the following months an exchange of applications, rebuttals and correspondence ensued.
Meanwhile, the trial moved on. Dr R.K. Sharma was back in court. But the tone of what had started out as scrutiny of a serious scientific report by an expert had now changed. Sharma had said he had studied both the khukri and the golf club to understand how each might cause injury.
Saini asked: ‘How do you know so much about the khukri? Were you trained to use it?’
And: ‘You have studied injuries due to golf swings,
but have you studied swingless injuries?’
This was a court, so Dr Sharma had to reply to every question, but he couldn’t help the odd ironic laugh.
There was more to come from Saini:
‘Was it not true that you were denied promotion at AIIMS because of poor character and because you indulged in stock market activities?’
‘Is it not true that this is why you had to take early retirement?’
‘Is it not true that nobody would hire you and that is why you took a job at a “ghatiya” institution like Saraswati Institute?’
‘Is it not true that you write favourable reports for your clients in return for money?’
Dr R.K. Sharma managed to maintain his composure through all this and denied each suggestion. But Saini had set the prosecution’s tone for the rest of the trial.
***
That tone would be reflected not just in arguments in court, but also in applications filed. A formal order to hand over DNA documents to the accused came in mid-July. The high court had said: ‘The right of accused to put his best evidence can/should not be defeated in the name of expeditious trial.’
In a week, Dr B.K. Mohapatra had sent in whatever materials he claimed he had and these were passed on to the Talwars. But when the Talwars sent the documents to Dr Semikhodskii, he found serious gaps in them. Data was missing for two key items: the khukri recovered from Krishna’s room which had yielded no DNA and mysterious ‘non-human’ blood; and the controversial purple-coloured pillow cover.
The pillow cover had been tested at the CFSL before it was sent to Hyderabad. But Dr Mohapatra at the Delhi lab had found no DNA. The khukri hadn’t yielded DNA at the CFSL either, but was never sent to Hyderabad. These were only two of a bunch of items on which the CBI said it had no information; the Sula wine and Sprite bottles found in Hemraj’s room were also in the list.
On 6 July, the Talwars asked Judge Shyam Lal to direct the CBI to hand over the data on these items.
Inspector Arvind Jaitley replied promptly: ‘The accused only in the garb of sending documents to a so called foreign expert want to delay the trial . . . In India more sophisticated and advanced kit is being used as compared to be available with so called expert of the accused which further strengthens the belief that the laboratory claimed by the accused is not a well-equipped one but is a shop opened by someone to please their clients after getting money . . .’
On the issue of the missing data, Jaitley wrote: ‘When . . . DNA is not available, a blank genotype plot [a graph of peaks and valleys, each peak is a genetic marker] is generated without any peaks. In such a case this is of no use . . . hence unnecessary record is not maintained by the experts.’ It was a ‘waste of paper’, contended the CBI.
The Talwars responded the next day, and made the point that this was a new branch of science which most members of the bar and the bench weren’t conversant with. They attached a letter from Dr Semikhodskii that explained the defence’s requirements to the judge in layman’s terms:
Mr Jaitley is, obviously, not a DNA expert and does not fully understand that when a sample does not have DNA, there will still be some ‘noise’ and not a ‘blank’ . . . at a particular magnification . . .
By refusing to release this information . . . the CBI prevents me to form an opinion on whether there was no DNA found in the samples or [whether] prosecution scientists could have missed evidence of DNA being present.
Without this evidence it is impossible to say whether the samples were actually analysed.
This was clear enough, but Semikhodskii also raised some serious concerns about the way testing had been done, and the way records were maintained—or not maintained.
‘It is suspicious that no DNA profiles were generated from items like underwear, blood stained threads, t-shirt, wrist watch and others. These samples are usually in close contact with the wearer and should have his/her biological material on them.’ Again, there were no records.
As for Jaitley’s numerous remarks on his competence and motives, Semikhodskii clarified that he had helped the Talwars for the last five years, and done it for free. He concluded: ‘I leave the words Mr Jaitley used to him. I have attached my CV to this letter.’
Four days later, Judge Shyam Lal rejected the Talwars’ plea for the data. ‘No useful purpose’ would be served by directing the CBI to provide the information Semikhodskii had asked for.
The London expert had written that ‘even with the scarce information provided’ he could ‘explain the issues I have with the evidence’. In his order Judge Shyam Lal understood this to mean: ‘Andrei Semikhodskii is ready and prepared to explain with the DNA evidence adduced.’ If the expert was ready, what was the problem?
This 12 August order was unique for one other reason. It carried a tailpiece from Judge Shyam Lal: ‘Fix 16.08. 2013 for filing expert report of defence and examination of Dr Andre Semikhodskii peremptorily. Dasti summons may be taken by the accused for service on witness.’
‘Dasti’ literally means ‘by hand’ in Persian, and is a relic from the time Farsi was the court language in India. Dasti summons are served to confirm that a witness will definitely appear, and on the appointed date.
The calendar said 12 August. Judge Shyam Lal retired in November.
***
Andrei Semikhodskii had flown to Delhi in late July and he spent the third week of August in court, mainly being cross-examined. He maintained throughout what he had said in his letter to Judge Shyam Lal: that he was unable to provide a professional scientific opinion given the lack of materials provided by the CBI. He also maintained his composure as allegations of incompetence and avarice were hurled at him.
Even though all seven of their witnesses had come and gone, the Talwars weren’t giving up the fight. They approached the Allahabad High Court yet again, taking to it the grievance that, despite its orders, the CBI hadn’t provided the defence all the documents it held, and that the lower court had rejected an application for more material. Could the high court clarify its order? Make it more explicit?
In early September, the high court said that its order had to be read and complied with fully, but it was clear enough. No further clarification was required. Plea rejected. The Talwars were now in a bind. If they wanted the DNA data that was withheld, they would have to go back to Allahabad and file for non-compliance against the CBI and Judge Shyam Lal. Could they afford to anger the trial judge further? They chose not to pursue this line.
Their best bet was to try to get the narco reports of the servants on record. Soon after the Allahabad High Court had turned down this plea in July, Tanveer Ahmed Mir had prepared a detailed SLP, or special leave petition. In India, the Supreme Court has the power to adjudicate on any judgement or order by a lower court, where a gross injustice may have been committed. Mir had made the case that by suppressing the narco reports of the servants, the Talwars’ defence had been grossly harmed. The reports clearly indicated the involvement of others in the murders, and had even resulted in recoveries.
But though that petition was ready, it wasn’t filed. The prime reason was that the Talwars were hunting for a big-name lawyer to represent them. Those whom they approached were willing to do it for free, but schedules were a problem. After more than two months of dithering by the defence, Mir briefed Senior Advocate U. Lalit. In the first week of October, the SLP was finally before the Supreme Court. On 7 October, in a packed courtroom, Lalit pleaded that the reports be brought on record. The court seemed to agree. The bench of Justices Chauhan and Bobde expressed their thoughts aloud: there was no reason why the reports should not be allowed.
The CBI’s Sidharth Luthra and R.K. Saini were shaken. Just as proceedings were about to close for the day, they submitted an affidavit that alleged the Talwars had been employing all manner of tactics to delay the trial. The defence had anticipated this and was ready with a written reply which it asked to submit, but the bench felt this was unnecessary. Given that the mind of the court had been made pl
ain to the close to hundred people present, the Talwars did not think much of this.
On the next day, however, came the ruling. There was hardly a mention of the merit of the Talwars’ plea, an order on which might have been precedent-setting for many criminal cases. Instead, and not for the first time, the Talwars were censured. It was evident, the bench concluded, that the ‘Talwars were adopting dilatory tactics’. The bench commented on the filing of the SLP at this late stage as well. The hunt for the ‘big-name’ lawyer had come back to bite the Talwars. There was shock in the Supreme Court premises at the ruling.
The outrage about the Supreme Court’s turnaround was restricted to the social media. The mainstream went with the ‘Talwars Rapped by SC’ type of headlines. But had the Talwars really caused the delays? In the reply the Supreme Court never saw was a detailed account of the proceedings of the previous four months. Five weeks had been lost to strikes in Ghaziabad. The Allahabad High Court had stayed proceedings for a week. Three weeks were taken in CBI cross-examinations of defence witnesses. The Talwars hadn’t asked for a single adjournment.
The calendar said 8 October. Sidharth Luthra, the CBI’s Supreme Court counsel, said: ‘They are delaying because the judge retires in November.’
***
The Supreme Court’s rejection on the narcos revived a story that had been buried for six years. The journalist Nalini Singh came forward with it. Singh ran a Nepali television channel in 2008, and said that she had received a telephone call from a CBI officer called Anuj Arya a few months after the murders. Arya, who worked under Arun Kumar, had asked Singh to provide a very curious piece of information: What was the playlist on her channel on the night of 15–16 May 2008?