Aarushi (21 page)

The policeman’s description of the corpse in court was meant to suggest it was easily identifiable, and this had to be understood in the context of his claim that the Talwar family refused to identify Hemraj positively. Ergo, they were buying time: only the guilty would do that.

Bachu Singh was a seasoned policeman; it was he who wrote out the panchnamas for both murders. But as his day in court wore on, the suspicion that he may have doctored them became increasingly reasonable. In Aarushi’s panchnama, for instance, a line appears to have been added (in visibly smaller letters) that her pyjama strings were untied. This fit the theory—formulated two years later—that her genitals were cleaned.

Singh denied he had made this amateurish alteration to the document. He told the court, ‘It might appear so . . . But I just did it to fill out the line.’

The judge smiled; the scribe took it down. The fact is that this kind of ‘line-filling’ was all over the police documents in the Aarushi case. Bachu Singh offered a stunningly simple explanation for this in court:
‘Hum aise hi karte hain’
(That’s how we do it).

When he appeared in court, with his thick glasses and his amiable, if mischievous, manner, Bachu Singh was hiding a secret that had nothing to do with the case, but had a lot to say about policemen in Uttar Pradesh. He had successfully plotted a murder in his native Mathura at around the same time that he was taking his oath in this murder trial. The policeman was convicted about a year later—for bumping off a woman who was causing trouble for his family. He was sent to the same Dasna, where the Talwars would eventually go.

***

Subinspector Dataram Nanoria, the first investigating officer in the case, actually had a conviction against him for the custodial death of a prisoner. He had done time, and was out pending appeal when he came in to testify. Nanoria was among the policemen who had broken the lock to the terrace and discovered Hemraj’s body covered by a cooler panel on the morning of 17 May 2008. But he didn’t seize the item as evidence—although it may have yielded DNA or fingerprints—because ‘it was too large and heavy’, he told the court.

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 witness 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.