by Avirook Sen
About a week before his death, Kaul travelled to Indore to place evidence in the trial of Zahida Parvez, accused in the murder of the Bhopal activist Shehla Masood. The evidence was an audiotape of a conversation between Parvez and an acquaintance in which she purportedly incriminated herself.
Fair enough until then, except that the transcripts of the 17-minute conversation were completely different from what was actually said. Courts rely on the text for ready reference rather than the actual recording, which is stored. The transcripts were incriminating; the recording wasn’t. The defence spotted this straight away, and the evidence is being contested.
That isn’t all. Irfan, the man who allegedly shot Shehla Masood, had turned state’s witness. The shooter’s testimony would also implicate Zahida Parvez. But once Kaul passed, Irfan changed his story. He refused to admit that he had shot the activist, and refrained from involving Zahida in any way.
Parvez’s husband Asad met Kaul in Indore. Asad told me that the CBI’s case was in trouble. The transcripts appeared doctored; the state’s witness had backtracked. The main piece of evidence against Zahida, her explicit diary, with which the CBI had tried to establish the jealousy motive was also being reread. Kaul had highlighted only those portions of the diary that suited his case. But when read in its entirety, it suggests Zahida was trapped in a situation she was finding hard to get out of. On the one hand, she enjoyed the physical aspect of the relationship, on the other, she wanted to get out of it—she says this several times in the diary.
But the biggest blow to the prosecution’s case was Kaul’s death. ‘The evidence is weak,’ Asad told me, ‘and now Kaul is no more. He was the main man. He was fixing everything.’
Vijay Shanker
Vijay Shanker lives in Noida, plays golf, and employs a Nepali servant, whom, typically, he calls ‘Bahadur’. An Uttar Pradesh cadre IPS officer, he headed the CBI for three years from 2005 to 2008, and retired exactly two months after the Aarushi–Hemraj case was handed over to the CBI.
‘The way the two directors [who followed him] took so much of time not deciding the matter, and the way this matter has been decided by CBI and consequently by the court, I would say that this is one of the most unfortunate cases. One in which the cause of justice has not been served as yet. I’ll say that,’ he told me when I caught up with him in October 2014.
‘This is a classic example. This is a case where everything had gone awry right from the beginning.
‘There are crimes that are quite simple to open up. There are crimes that are difficult to open up, and there are crimes that are in between that never get opened even if they are simple cases. This is one of those.
‘In this case, two things were happening . . . That girl, who didn’t even know what was happening to her body, is being accused of all kinds of things. She was just 13–14! I’m the father of a daughter . . .
‘What are we talking about? We are talking about the dignity of the dead. We are talking about two parents. We are talking about the criminal justice system. We are not talking about a P.D. James novel.
‘I would also say this: I wish I had more time. This case would have been decided if I had had more time. And I wish that my successors hadn’t shown this much insensitivity in this case which has drawn so much attention from society. Shouting Eureka! Eureka! We’ve got it! Even the magistrate . . . Oh my god! This is my personal anguish,’ he said.
‘There was both a lack of sensitivity and a lack of responsibility. What is applicable to the media became applicable, at a given point of time, to the CBI as well. I have these very very unfortunate conclusions.
‘If a police officer volunteers to give me a leak, it is my responsibility to verify. In this country, journalism and bureaucracy have gone much beyond accountability.
‘Do you remember the hawala case? In that case the person through whom the hawala was done [hawala is the illegal transfer of money from one country to another, to fund activities as varied as campaign finance, film production and terrorism], this man was met by one of my officers along with his lawyer, and that officer when he declared at the end of the meeting that he was a CBI officer, the man said . . . “Sahab, I’m so lucky to have met a CBI officer because I want to ask a question.”
‘The officer asked him to go ahead. So he said, “Sahab, this hawala business has been going on in my family for four generations. Now tell me, what wrong have I suddenly done?”
‘It was a great example of how times change. And the law changes.’
Arun Kumar
After spending an eventful five years in Uttar Pradesh, Arun Kumar was recalled to New Delhi as inspector general of the Central Reserve Police Force (CRPF) in September 2014. His new job involves dealing with one of India’s biggest internal threats: the Naxalite problem.
We met at the CRPF’s Lajpat Nagar guest house one evening. Kumar liked his new assignment. As a student in Bihar, he had been involved in left politics and had an awareness of the movement’s history. The work was interesting.
But the Aarushi case still haunted him. ‘At the time, the media pressure was immense. It was like the Nithari case, only worse. In Nithari, everybody wanted to see Pandher convicted. It was impossible to explain that he had nothing to do with it. In the end we had to charge him under 201 IPC [destruction of evidence; giving false statements to protect an accused], because otherwise people would say he has just been let off. And then look at what the court did . . . it convicted him of murder. It took years for this to be overturned.
‘Aarushi was even worse. All the whole sex and wife-swapping stories. No evidence, but everybody thought they were true. Everybody thought the Talwars were guilty.
‘And even later, it didn’t let up. The way it was played out when the case was cracked, even my children would ask me, “Is this what happened? What went wrong?” I would tell them that some things are best left to destiny.
‘Kaul was far too junior to me for me to have anything personal against him. Yes, I had warned him on more than one occasion about his conduct, but it is difficult to believe that this is all it took to turn the case. There must have been other factors involved . . .’
‘Like what?’
‘I don’t know. And I don’t understand how, after a decision has been taken to file a closure report which says there isn’t enough evidence to charge anyone, a report is written out like a charge sheet. Kaul wrote the report, but his seniors were silent about its contents.’
I told Kumar that the investigation his team had conducted was disregarded and dismissed on a daily basis during the trial.
‘I had a lot to say about this. The least they could have done is call me as a witness. I would have said everything I knew. But I was never given that opportunity. I don’t see what harm it would have done.’
Perhaps he knew too much. Like witnesses being pressured, for instance.
‘I can tell you that Gautam wasn’t the only one who called me for help . . .’
‘And what about the forensic evidence your team missed: Hemraj’s blood on Krishna’s pillow cover. That report from the Hyderabad lab came in November 2008, when you were in charge.’
‘Look, there could have been mistakes or omissions in investigation. I have investigated a thousand cases, it would be foolish to say I have not made mistakes. I was ready to go in for touch DNA [a forensic method that requires only a few cells from the outer layer of the skin, not blood samples, etc.], everything would have become clear after that. But then I moved out.
‘But even before that, we were close. We were very close. Vijay Mandal had agreed to turn approver; his family had been spoken to. But we didn’t get the go-ahead from the director.’
‘Why?’
‘You have to ask him. What I know is that the director’s refusal to grant permission is clearly noted on the file.’
The then director, Ashwani Kumar, did not want to comment on anything related to the Aarushi case.
Bharti Mandal
Bharti Mandal’s testim
ony may have changed the lives of her former employers, but after her day in court in 2012 her own life went back to being exactly as it had been. Rise by five, to make her way to Jalvayu Vihar; do chores in multiple homes; return to the tiny room deep inside the Baans Balli slum to cook the afternoon meal for her family; go back to work for her evening shift; return by 6.30 or so, to cook dinner; and if luck wasn’t on her side that day of the week, suffer a beating at the hands of her husband Bhishu. Bhishu was a daily-wage worker whose employment was erratic. He was also fond of alcohol—the rest followed a script familiar to many households in the slum.
Bharti described her life as an ‘existence’, something she was doing to bring up her children. This is why she would turn up at work every morning, often bearing the bruises from the night before. She lived in Noida out of the basest necessity, not to ‘make a life’. Even after more than a decade in the city, her Hindi was poor.
She was talking sitting in her tiny, dark room in the slum. The bed dominated the space, and Bhishu was on it, relaxed, reclined. Bharti Mandal wasn’t a complex human being, and it was her simplicity that probably saw her through life. She had agreed to meet earlier, but couldn’t: ‘There was tension at home,’ she said laughing, looking at Bhishu. ‘I was really upset . . .’
This passed. As it did on a weekly basis. Bharti began her story:
‘On the 15th [May 2008] I was on leave.
‘When I went, Hemraj would always open the door after just one bell. That day he wouldn’t come out.’
She rang the bell again, and saw Nupur Talwar standing at the last door to the flat. After this, there was the exchange about the key. She told me she hurried down to fetch the key that Nupur threw from the balcony, and hurried back up. ‘I was getting late,’ she said.
‘I wasn’t paying attention to anything, so I didn’t notice whether the middle door was latched when I was ringing the bell. When I came up after collecting the keys Aunty had thrown down, I pushed through the outer door and found the middle door latched. I undid the latch and I saw them crying.’
The scene inside Aarushi’s room was beyond Bharti’s comprehension. ‘Her throat was cut the way they cut the throats of goats. Aunty just held me and cried and when I asked her what had happened she said she didn’t know.’
Bharti didn’t really know what to feel. She didn’t know the Talwars that well; she had been with them for just a week.
‘I would hardly get to see the family. They would all be asleep at the time I came, only Hemraj would be awake. And Aunty would wake when I started doing the sweeping.’
Bhishu, who had been mostly silent, spoke: ‘Just after the incident, one policeman came and picked me up, and forcibly took me to the Sector 42 police station. They asked me some questions. But they may have confused me with one of the other servants. I told them I am a daily-wage construction labourer. They gave me some tea and matthi and let me off.’
It was Bharti the police were interested in. ‘I would never know when they would pick Bharti up,’ said Bhishu.
‘I wouldn’t know when they would come either,’ said Bharti.
She doesn’t remember exactly how many times she was picked up by the police or the CBI, but it was more than half a dozen times.
Three or four policemen would wait at the Jalvayu Vihar gate. As she made her way home after work, she would be accosted and bundled into a police vehicle and taken to one of the police stations, usually the one near Nithari village. Sometimes, she says, it would be in the afternoons, and sometimes, in the evening.
‘They would keep me there for about an hour. They would always say the same thing: say as much as you know. This is all they would say, and make me repeat the story over and over.
‘I would tell them that I have kids at home, or that I have work, so they would sometimes show consideration, not make me wait.
‘Four days or so before the summons came [in 2012], two policemen came here. They knew this place. They came and they asked me the same thing once again. To tell the story once again. It was a little irritating, but what could I do? So I repeated the story. A couple of days later, they came to serve the summons.’
By then, after repeated rehearsals, Bharti knew what she had to say by heart. There was no real need to ‘coach’ her, and besides, her poor Hindi would have made this very frustrating.
Bharti told me: ‘That morning, I did exactly what I would do on the other days, and in other homes. I rang the bell, and when no one opened, I rang again. I never touched the door.’
‘Are you sure?’
‘Yes. I never touched the door.’
‘You didn’t try to open it?’
‘No. I just stood there and waited, and then aunty came to the inner door.’
‘You remember this clearly?’
‘Yes. I didn’t touch the door. I did what I would do on other days. I rang the bell and stood there, waiting for Hemraj to open the door.’
‘Like every other day?’
‘Yes. Servants don’t just barge into people’s homes. We have to wait to be let in.’
That morning Bharti Mandal had done at L-32 exactly what she did every other day, at every other home. She rang the bell and waited. She made no attempt to open the outer door.
Why then did she say she touched the door at the trial?
The reason the record shows what it does isn’t hard to see. It came down to how the clerk sitting to Judge Shyam Lal’s right typed out transcripts.
In Ghaziabad, as in many other lower courts, the record doesn’t reflect what lawyers say. The questions or propositions put to witnesses are not recorded. What is put down is only the response of the witness, not a Q&A.
In one long sentence, the CBI counsel R.K. Saini gave his slightly awestruck witness a grocery list of facts she had to verify about her arrival at the Talwars’ flat.
‘Touched the door’ was one subclause in the narrative of the first events of the morning. It was part of a longer story of Bharti arriving at six, ringing the bell, waiting, ringing the bell again, fetching the bucket from the stairs and finally finding not Hemraj, but Nupur Talwar at the innermost door.
Almost all parts of this sentence were undisputed, but one, about her ‘touching the door’, was not. To Bharti, most of the sentence was true, and the gravity of the small falsehood in its midst was beyond her. She said it was all true.
R.K. Saini at her side, she either agreed with what he said, or repeated it. The noise the defence made about this isn’t part of the record, but that Bharti ‘touched the door’ and it did not open, is.
This is the fact that Judge Shyam Lal would use in his judgement. This is the fact that shifted the burden of proof entirely on to the Talwars: they had locked the flat from the inside, it was up to them to explain how their daughter and servant were killed.
But a year and a half after her testimony, Bharti was telling me that she made no attempt to open that door. She had no idea that this detail had sent two people to jail for the murder of their daughter.
She went back to her ‘existence’. She told me that a film crew had recently come to shoot at the slum. It was a film about the murders, and some of her neighbours pointed her out to the film-makers. ‘There is the real Bharti! they said. I ran away from there.’
K.K. Gautam
One afternoon in October 2014, I met K.K. Gautam at his office in congested Karol Bagh, near Sir Ganga Ram Hospital. This was Gautam’s base in Delhi, the place from where he managed his interests in education and social work. ‘I am retired, one must remain occupied,’ he told me.
He was a fairly big man, in his mid- to late sixties, but looked younger. He was initially reluctant to speak with me, saying the CBI counsel R.K. Saini had advised against it. This told me I should get to the point right away.
I asked him first of all why he had changed his initial statement to what he told A.G.L. Kaul. Gautam responded by asking blandly whether there was a change at all. I told him both of us knew that there were substan
tial changes, crucially, the introduction of the phone call from his eye doctor, and the angle of a rape cover-up which counted so heavily against the Talwars in the trial.
‘Sushil Choudhry called me and said a girl has died, the family’s reputation may be affected. I said nothing can be done about that, the doctors will write what they have to write. I just said whatever they think is right, they will do.’
‘What were the actual words he used? Did he use the word rape?’
Gautam gazed at me for a few seconds and, after giving the question some thought, said: ‘Yes.’
‘What were his actual words?’
‘He said the girl has died. If rape is mentioned in the post-mortem the family name will suffer. I said now the girl is dead, how does it matter what happens to the family name? Whatever the doctors find, they will write. Leave it. The girl has died, why are you talking about these minor things?’
‘The post-mortem said nothing about rape, assault or anything of that kind. So it was correct?’
‘Look, I have not seen it. And I don’t know about it . . . But when this whole matter is settled, in the high court and Supreme Court, we can sit down and talk about many things.’
A young boy came in, Gautam asked for tea for me, coffee for himself. It seemed to me he had become more comfortable talking.
‘Look, I said what Dr Choudhry told me. Now he got irritated. He said he would have nothing to do with me. He was just an eye doctor. It is not as if he was treating me free.’
Gautam let out a short laugh, and continued, ‘There are many eye doctors, I go to someone else.’
I said, ‘Your first statement was very detailed, it talked about how you noticed the impressions on Hemraj’s bed, indicating several people had sat on it, the toilet appeared used by many people, there were glasses. You went back on all of this in your testimony . . .’
‘I don’t remember.’
‘Remember what?’
‘Remember what I said when.’
‘So what did you see when you arrived at the scene and had the terrace lock broken? What was the scene like? Did you know anyone there?’