Aarushi

by Avirook Sen

  Singh provided the information, and wanted to know why the CBI was concerned with Nepali television programming. Arya told her that the servants in the Aarushi–Hemraj murder case had revealed under narco analysis that they were watching specific songs that night in Hemraj’s room. The fact that the details, such as the specific songs, matched led to the inference that the servants had been together that night in Hemraj’s room. A fact that each of them had denied.

  Down, desperate and exhausted, the Talwars tried one last time to have this story told in the trial court. They pleaded with Judge Shyam Lal to allow two additional witnesses: Nalini Singh and Anuj Arya. Application rejected, begin final arguments, said Judge Shyam Lal.

  ***

  On 24 October 2013, as Mir walked towards the court to make his final attempt for his clients’ acquittal, one of the Ghaziabad regulars greeted him. Mir’s arguments had become something of an attraction for local lawyers, several of whom would drop in at the courtroom to listen.

  This gentleman told Mir, ‘Pata hai na aap ko, Saza Lalji ka birthday 6 November ko hai?’ Mir was amused. ‘Dekh lo, Mir sahab. Saat saal poora ho jayega unka. Kheench logey na aap 6 ke aage? Beech mein ek application file kar dena overage wala’ (You know, right, that Saza Lalji’s birthday is on 6 November? He’ll turn 60. Can you drag it beyond then? And file an application about his having retired).

  The canny lawyer was talking about a technicality. Judges officially retire the day they turn 60, but service rules allow them the remainder of the month’s pay and privileges. Technically, according to the lawyer, it could be argued that Judge Shyam Lal should not rule on the case beyond 6 November.

  Mir burst out laughing. ‘Waise hi mar raha hoon, sahab!’ (I’m getting killed already!)

  A few minutes after two in the afternoon, Mir began his final arguments in the Aarushi–Hemraj murder trial.

  In court, the Talwars usually sat next to each other, on a bench farthest from the judge, their view blocked by a human wall of black and khaki—lawyers and policemen. Today, though, Rajesh Talwar remained outside, at the courtroom door, watching over duffel bags of documents that lay on the floor—in case one of them helped in an acquittal he was prepared to rush inside with it.

  Even before he could begin, Judge Shyam Lal asked Mir how long he would take. Mir told him that he had about 20 circumstances to argue that pointed to his clients’ innocence. Of these, the important ones were:

  The circumstance of grave and sudden provocation

  The circumstance of the golf club as a murder weapon

  The circumstance of the scalpel having been used

  The circumstance of continuous Internet activity

  The circumstance of the wiped bloodstains

  Bharti Mandal’s arrival

  Mir and Nupur Talwar had worked day and night over the past weeks to bring their case to a coherent, convincing close. Its complexity was staggering: there were ten thousand or so pages of documents. Each had a story. Now, it was Mir’s job to bring it all together and tell these stories in a way that they were more credible than what the CBI wanted the court to believe. This would take more than two weeks.

  Mir started by telling the court that the three pillars of the prosecution’s case of grave and sudden provocation were Dahiya, Dohare and Raj. The trial had exposed that the testimonies of the two post-mortem doctors were unworthy of consideration. They had changed their reports a number of times, and said patently absurd things.

  As for Dahiya, Mir now offered a full explanation why his ‘findings’ were false. He reminded Judge Shyam Lal that it had been established in the same courtroom that Hemraj’s blood wasn’t found in Aarushi’s bedroom. Yet Dahiya had continued to maintain that he stood a hundred per cent by his report.

  Most of what Mir said that day and through the first week of his arguments was already on record. From what had been heard in court, it was clear that neither the golf club nor the scalpel could have been the murder weapon. It was also clear that they had been foisted on the accused because of the story that Dahiya, Dohare and Raj had written under Kaul’s direction. The golf clubs were tampered with in Kaul’s office, and the scalpel was never produced.

  Mir pointed out that the experts who had testified for the prosecution could not explain why the odd Internet activity that occurred on the night of the murders had continued through the next day when the house was full of people and no one was using the computer. Again, Mir pointed out, Kaul had deliberately not seized the Talwars’ router because an examination of this would reveal the truth about what happened. The experts the CBI brought in to testify also admitted that the Internet logs were incomplete and that there could be at least seven reasons why start/stop activity could take place. Not just the one that the CBI was arguing: that the Talwars were awake and physically switched the router on and off as they used the Internet.

  He also argued that the bloodstains on the staircase, which implied that Hemraj’s body had been taken upstairs from Aarushi’s bedroom, were an invention by Kaul, who pressured Rajesh Talwar’s friends to testify against him. The testimonies of Dr Varshney and Dr Kochar were countered by nine other prosecution witnesses, including the highest-ranking police officer on the scene. And the one mysterious police officer, Inspector Akhilesh, who was allegedly told about the stains by the two friends, was never called to testify. How could the court know for sure that Kochar and Varshney were telling the truth or just repeating what Kaul asked them to?

  And what reliance could be placed on the testimony of a witness who begins by saying she is telling the court what ‘has been taught/explained’ to her? Bharti Mandal’s simple statement that she ‘touched the outermost door and it would not open’ as she arrived at the flat, and that it opened once she had returned with the keys Nupur Talwar had thrown down, was at the heart of this case. If the Talwars’ outermost door was locked from the inside, then no outsider could have committed the murders. But Bharti Mandal had been ‘taught’ to say this, argued Mir.

  While the judge appeared to listen intently to Mir’s arguments, he would periodically ask: ‘Aur kitna baaki, Mir sahab, khatam keejiye . . .’ (How much more to go, Mir sahab, finish it off).

  Mir felt pressure from the judge to move things faster while his anxious clients wanted every possible avenue of acquittal explored. He would speak continuously for about four hours every day, a punishing schedule set by the court with an eye on the calendar. But Mir’s passion was unflagging. In the face of everything he had gone through in this case—the pile of rejections from various courts, the sordid environment of Ghaziabad—he always gave the impression that he really, dearly, wanted to win this case.

  Mir had made his point that the weapons alleged to have been used were improbable, to say the least, and the actual sequence of the assaults offered by the CBI was absurd. He now moved on to the question of tampering with the evidence. For these, the examples were numerous: the most blatant, said Mir, was the swapping of the pillow covers and the subsequent typo clarification. He submitted a chart that compared the original labels with what was scribbled on scraps of paper over photographs of the exhibits and passed off as genuine. The discrepancies were obvious. Pictures taken at the crime scene were tampered with to such an extent that events from the future could be seen in some photographs. It wasn’t the Talwars’ conduct that was suspect, argued Mir, it was the CBI’s.

  Through the first part of his arguments Mir had tried to establish that his clients had not committed the murders. But ask anyone who’s heard anything about the case, and they will ask: Well, if not the parents, then who? Although Mir maintained that the burden wasn’t upon him to prove who might have committed the murders if his clients had not, the question hung in the courtroom every day. Deep into his final arguments, Mir chose to answer it.

  To establish his alternative hypothesis, Mir had to go back to the records of the initial days of the investigation: the closely held case diaries and the more accessible court records. He argued
that the CBI had found enough evidence against Krishna and then Rajkumar and Vijay Mandal in 2008.

  Mir read out the magistrate’s order of 17 June to extend Krishna’s remand: ‘CBI has produced the case diary, which has been perused by this court, the statements contained in the case diaries have also been perused . . . Accused Krishna has admitted and confessed to be involved in the double murders . . . In the night of 15.05.2008, at around 12.00 he had gone to meet Hemraj. He has also admitted that he can get recovered the mobile phone of Aarushi.’

  Mir also read out the magistrate’s order of 27 June regarding Rajkumar’s arrest: ‘Case diary has been perused. The statement of accused [Rajkumar] has also been perused, in which he confessed that he switched off Aarushi’s mobile phone, broke it and concealed it, which he can get recovered. He can also get recovered Hemraj’s mobile.’

  Mir now turned to Saini. On 11 July 2008, the day Vijay Mandal was arrested, Saini had made an appearance in court to argue for the CBI that Rajesh Talwar should be released. Under Section 169 of the CrPC, if an investigating agency does not find evidence against a suspect it has in custody, it can apply for his release.

  ‘Vijay Kumar and special prosecutor R.K. Saini . . . mentioned that during the course of the investigation and upon examination of scientific evidence, fingerprints, shoe prints, footprints, clothes, palm prints etc., the aforesaid evidence could not connect Rajesh Talwar with the crime, therefore his immediate release from custody is sought.’

  The magistrate had agreed fully, said Mir.

  The CBI had the evidence, said Mir, they didn’t do anything about it: they did not even bother to find out what clothes these men were wearing. When the forensic reports came in, they failed to see the evidence. And to hide their connivance and incompetence, they victimized the Talwars.

  ***

  When Mir closed his arguments on 12 November, he had pointed to the involvement of others, but the question of how the assault took place if others were responsible remained open.

  Mir didn’t go into this for two reasons: it was the defence’s job to raise reasonable doubt, and point to the strong possibility of others being involved; second, painting a picture of the assault as if he was an eyewitness never crossed his mind. That was Dahiya’s and Kaul’s territory, uncharted where most of the population is concerned.

  Usually, the prosecution rebuts every argument made by the defence and submits counterarguments. R.K. Saini was looking at 212 pages of final arguments from Mir, and he was looking at the judge. And everyone was looking at the calendar: 12 November. Judge Shyam Lal would be in court till the 30th.

  The judge told Saini a written rebuttal was not necessary. Saini spoke for 20 minutes to counter Mir. By the end reporters had poured into the courtroom, climbing over each other, and anyone else who was in the way, to get to Saini. Saini was telling them the last part of the story: ‘Aur Rajesh Talwar peeta raha aur saath saath DNA dhulta raha . . . uske baad poori raat yeh dono pornographic films dekhte rahe . . .’ (And Rajesh Talwar kept drinking, and the dripping whisky wiped off traces of DNA from the bottle . . . after that the two of them watched porn all night).

  ***

  The whole truth is a luxury. In case you are looking for it, a courtroom isn’t the place to either start or end the search. All that a court does is reduce the number of ways a story can be told to two: plausible or implausible. The choice is made easier by these limits, the truth is not.

  On Monday, 25 November a huge press contingent arrived early at the Ghaziabad court to finally relay the truth to their expectant audiences. The other big story at the time was the Tarun Tejpal sexual assault case, but for that day the electronic media looked away from it.

  Cameras, lined up like horses chomping at the bit, were restrained by a thick rope usually meant for convicts that the UP police had thoughtfully carried with them. Journalists climbed on to every available tree for better vantage, booked their slots on the top of every strategic wall. And waited at a distance. For that day, the walled courtyard which houses the special CBI court was out of bounds even for reporters like me who only took notes.

  I wandered about slightly aimlessly, and finally climbed on to the deserted roof of the empty court building opposite where the action was. As I looked down from there, the crowd appeared to me like a single animal. It had hundreds of eyes and appendages, all of which periodically reached out in the same direction as the animal grunted and roared.

  Television reporting, in the circumstances that most of India’s visual journalists find themselves in, is punishing physical work in an environment of intense competition. The pressure is unrelenting: even the long periods of waiting demand alertness. And then, there are the bosses back at the studio, who not only expect you to scythe through the crowd to get the byte, but also ‘cut through the clutter’ as you tell the story.

  Through that day, by accosting just about anyone who emerged through the narrow gate of the courtyard, the byte was available. But there was no story. As the day wore on, patience was running low.

  Sometime after 3.30 p.m., there was a sudden chorus that echoed off every wall in the Ghaziabad premises: ‘Doshi karaar! Saza kal!’ (Guilty! Sentence tomorrow!) The verdict was supposed to have come in the first half of the day, so there were many false alarms: bouts of whooping, running, climbing down from trees—and climbing back up. Now, Judge Shyam Lal had finally spoken.

  On every important day through the trial, Advocate Naresh Yadav ensured he got out of the court first and ran towards the cameras. Yadav was a willing ‘accostee’, and was on television more often than any other lawyer in the trial. But his connection with it was tenuous: he claimed to represent Hemraj’s family, who played no part in the case before Judge Shyam Lal. Yadav usually walked confidently into the mouth of the media, but on important days, and today was as important as it got, he would be caromed around like a billiard ball disobeying the laws of physics. As he struggled to find standing room, his black lawyer’s jacket was almost pulled off him. He might even have lost some hair. ‘Doshi karaar! Saza kal!’ he manfully kept screaming for the cameras.

  I found myself wondering why anyone would subject themselves to frequent assaults the way Yadav did. I had met him, in the sweltering heat of his chamber, early in the trial. His shirt unbuttoned, he was leaning forward to let the sweat drip while explaining to a hanger-on that the secret of his fair complexion was a daily dose of dry fruits and milk. Above his chamber, opposite the court post office, hung a large signboard with a portrait of his. It described him as a ‘nationally renowned advocate’.

  Others emerged. Lawyers for each side. Lawyers for no side, court staff and policemen. On the faces of the Talwar family—Nupur’s aged parents, Rajesh’s brother Dinesh and many others who had negotiated their way through the deep wall of reporters at the court’s entrance—there was bewilderment. Inside the court, the Talwars had broken down as they heard the judge. They were taken into custody immediately. They released a brief statement saying they were disappointed—and innocent. The sentence would be announced the next day. The CBI had asked for the death penalty.

  Judge Shyam Lal’s 210-page judgement would also be made public on the 26th. This was an eagerly awaited document, because it was expected to have the ‘whole truth’.

  ***

  Tanveer Ahmed Mir had argued that there were at least 19 circumstances that pointed to the Talwars’ innocence; Judge Shyam Lal listed 26 that confirmed their guilt.

  With its Latin, French and a version of English, the text was difficult to decipher, but as I read it on the evening of the 26th, I thought it was, first and foremost, perverse.

  Judge Shyam Lal said his court had reached the ‘irresistible and impeccable conclusion’ that only the Talwars could have committed the ghastly murders because of his 26 reasons.

  ‘That irrefragably, on that fateful night . . .’ the Talwars were last seen by their driver Umesh Sharma at 9.30 p.m.

  That Aarushi’s bedroom was separat
ed from her parents’ bedroom only by a partition wall.

  That Hemraj’s body was found on the terrace, whose door was locked from ‘inside’.

  The intervening time between when the Talwars were last seen and when the murders took place was too brief for anyone but them to be the authors of the crime.

  That the click-shut lock on the door to Aarushi’s bedroom could only be opened from the outside with a key. That Rajesh Talwar had told the police the key was with him when he had gone to sleep around 11.30 after locking the door.

  The Internet was active through the night, which meant at least one of the accused was awake.

  That there is nothing to show that an outsider(s) came into the house after 9.30 p.m.

  There was no disruption in the power supply that night.

  That no person was seen loitering suspiciously near the flat.

  There is no evidence of forcible entry into the flat.

  There is no evidence of any larcenous act in the flat.

  Nupur Talwar gave Bharti Mandal the false impression the door was locked from outside by Hemraj although ‘it was not locked or latched’ from the outside.

  That ‘Bharti Mandal has nowhere stated that when she came inside the flat both accused were found weeping’.

  That Nupur Talwar did not tell Bharti Mandal about the murders when she reached the flat, and deliberately told her that Hemraj had gone to fetch milk . . . ‘This lack of spontaneity is relevant . . .’

  That the clothes of the accused were not found soaked in blood.

  That no outsider will dare take Hemraj to the terrace in a severely injured condition and then try and find a lock to be placed on the door.

  ‘It is not possible that any outsider(s) after committing the murders will muster the courage to take Scotch whisky knowing that the parents of the deceased Aarushi are in the nearby room . . . his top priority will be to run away . . .’