Aarushi (22 page)

The insistence on this point was another example of the differences in work culture among the Talwars’ lawyers. The Ghaziabad lot understood that getting any purchase where they practised meant working the system. Mir’s vantage was one from which he had seen the system work—at least in relative terms. The things that went on in Ghaziabad wouldn’t get past a judge in the Delhi courts, where Mir did most of his business.

The advice to plead for a transfer could also be seen as strategic. If such a petition was made and heard, it may well have eaten into Judge Shyam Lal’s time—after all, if the Talwars were able to stall proceedings for a month, Judge Shyam Lal would be gone. If a transfer petition failed, the Talwars would no doubt have to come back to an angrier version of Judge Shyam Lal. The chances of failure were high. The Supreme Court’s response when the Talwars petitioned for transfer of the case out of Ghaziabad following the attack on Rajesh was to warn the Talwars of impertinence and reject their petition. The Talwars would have to carry the burden of that order into any attempt they made to seek transfer out of Ghaziabad. Had they approached the Allahabad High Court again, the CBI would just have placed the 2012 Supreme Court warning on the table. It is unlikely that a high court judge would differ. The Talwars would have had to crawl back to Judge Shyam Lal.

Singh had made valuable contributions during the trial—he had exposed how Kaul illegally broke the CFSL’s seal to try to coerce Umesh, the Talwars’ driver, into identifying two specific golf clubs—but Mir was now the new lead counsel, and though his style of functioning was pleasant, it was also direct. The Delhi lawyer had come into the trial several months after it commenced, well past the ill-tempered summer of 2012. He was also paid much more for his appearances. This led to rumblings and disagreements in Ghaziabad.

Mir’s cross-examinations reflected the view that the ‘blank pages’ in the CBI’s case would raise reasonable doubt. Every day he was in court, he did his best to keep them blank by not allowing witnesses ‘to spin a yarn’. But Singh had long been of the view that the CBI had no clue about how the murders had taken place and that the agency had tried to force-fit a motive into an invented scenario. He felt it was best for his clients that the improbability and incoherence of the CBI story was exposed.

Mir and Singh took their differences into the courtroom.

***

Dr Mohinder Singh Dahiya made his much-awaited appearance in Ghaziabad in early April 2013. This was as much his case as Kaul’s. The story of the murders had been laid out during the trial just as Dahiya had told it in his report in late 2009.

The Talwars considered Dahiya the author of their doom, writing out their conviction sitting hundreds of miles away in Gandhinagar, Gujarat. They had never seen the man. I asked Nupur about her first impression of him. What did he look like to her?

‘Like death,’ she replied.

The prosecution would never use the phrase ‘honour killing’, but the narrative pointed there every step of the way, because the case was no more than an extension of the tale told by Dahiya, and he had said that the murders were the work of people interested in the Talwars’ family honour.

The fundamental flaw was Dahiya’s assumption that Hemraj’s blood was found in Aarushi’s room. It wasn’t, and this had not just been admitted by the CBI in several instances, it had also been established in the court where Dahiya was about to testify. Without that ‘fact’, the story of the honour killing fell apart. So did Dahiya’s confident assertion that Aarushi and Hemraj were attacked in the teenager’s bedroom. But would the man admit that he was in error?

Dahiya’s testimony opened with a brief description of the decades of work he had done in forensics, the honours conferred upon him and the book he had written. Then, it moved to the more substantive parts. There were three: his theories on the weapons, the motive and the ‘dressing up’ of the crime scene. In each of these areas, Dahiya’s voice had been the most authoritative.

Mir rose to challenge this authority every minute of the way. Screaming that Dahiya’s report was ‘unscientific and subjective’ and had no place in the court’s record, Mir said, ‘The witness cannot be allowed to give expert testimony! How can he solve a murder by just looking at photographs? How can the word “findings” be used for what he has written?’

The judge allowed Dahiya to continue.

He told the court that he had received photographs, documents, a summary of the case and a questionnaire from the CBI on 13 October 2009. On the basis of these, he submitted his report 13 days later describing in some detail how and why the murders took place. When he took the stand, that document, Document 79, was ‘proved’ by its author for the purpose of the trial. Dahiya said he stood by every word he had written in it.

The summary wasn’t read out, but Dahiya was more explicit in court than he was in his report and actually named the Talwars.

Mir jumped in again, objecting furiously at this. The judge sustained the objection, and Dahiya had to rephrase. He was forced to return to the language of exclusion: that ‘no outsider’ could have committed the crimes.

Dahiya’s testimony also showed that his involvement in the case had begun even before he received the materials for his report—a fact that had not been put on record earlier. On 10 October 2009 he went to survey the scene of the crime along with CBI officials. He told the trial court he saw ‘the location and situation of the flat . . . [and found] the walls had been painted’. He later came back to the CBI headquarters in Delhi and had ‘detailed discussions with the investigating officer A.G.L. Kaul’.

(Two days later, on 12 October, in a statement before A.G.L. Kaul, Dr Raj would introduce the idea of a scalpel and a surgically trained person; the very next day, Dahiya received his questionnaire, and some documents, including Dr Raj’s latest statement.)

Dahiya described to the judge what he had deduced:

Two weapons had been used . . . [but] the necks of Aarushi and Hemraj were cut after both of them were dead.

If the person was living, upon cutting the carotid artery there would be a spurt that could go 10 to 15 feet. In my opinion there was a spurt, but it didn’t reach 9 or 10 feet. There was no spurt on the terrace either. Both the victims had their necks slit while they were in a horizontal position. There were also no signs of resistance from either Aarushi or Hemraj.

I found that both the victims were bearing injuries on their head and that these injuries were caused by a golf stick . . . According to my opinion the necks of both the deceased have been cut by a surgical scalpel . . . The head injuries [golf club] caused to both the deceased.

Hemraj’s body was taken to the roof after his death and his neck was cut there . . . the bedcover wrapped in which he was taken to the roof was pulled from beneath him . . . The murderer who had cut Hemraj’s neck somehow got trapped in the pipes on the roof because of which the blood spattered palm print got embossed on the wall adjoining the door of the roof . . . I found in these circumstances that there could have been no involvement of any outsiders.

Because of Mir’s constant heckling, Dahiya’s examination by Saini was very short—the transcript is just one page. This is the way Mir wanted it.

Mir began his cross-examination. Had Dahiya examined any of the alleged murder weapons?

‘The IO never sent me or showed me any golf club.’

Had he investigated a similar case during his career?

‘I have never examined any case where injuries were caused by a golf club.’

How then could he be so sure that the fatal injuries on the heads of the victims were triangular in shape?

Dahiya fell back on ‘materials supplied’: ‘It is correct that in the post-mortem reports it is nowhere written that the injuries were triangular in shape, but the IO had mentioned in the questionnaire supplied to me that the injury on Aarushi’s head was triangular. I have made this the basis to say that it was caused by a golf club . . . Such an injury could also have been caused by a hockey stick.’

What about the scalpel then?

‘I was never sent a scalpel for examination by the investigating authorities,’ said Dahiya, but added: ‘It is incorrect to suggest that the injuries on the necks of the deceased were not caused by a surgical knife.’

In the material provided to Dahiya were Dr Raj’s opinion that a surgical instrument had been used, and A.G.L. Kaul’s opinion that the shape of the injuries to the head were ‘triangular’.

In his report Dahiya had said: ‘The presence of two distinct impact splatters [from the blunt blows] on the wall behind the headrest of Ms Aarushi’s bed also goes to prove the contention of Mr Hemraj having been caused head injuries in the room of Ms Aarushi itself . . . He must have been shifted to the rooftop in a fatally injured condition.’

Mir avoided asking Dahiya about this deduction that Hemraj was bludgeoned in Aarushi’s room. He asked him about the splatter patterns instead. Had Dahiya been given scaled photographs?

‘Such photographs are not required,’ said Dahiya coolly.

‘And did you measure the stains?’

‘No, I did not.’

Now Mir directed him instead towards his conclusion that there wasn’t enough of a blood splatter as a result of the neck injury to Aarushi, and this suggested her neck was slit later as part of an elaborate plan to frame the Nepali servants—to make it look like a ‘Gurkha-style’ killing.

‘Did you see the crime scene inspection report of the CFSL that mentions that the bloodstains on the walls behind Aarushi’s bed reached 9 feet 4 inches?’ asked Mir.

‘I was not sent such a report,’ replied Dahiya.

But where was the challenge to the error about Hemraj’s blood being found in Aarushi’s room?

It would not come from Mir.

He felt that the error had been established in court already, during Dr B.K. Mohapatra’s testimony, when the tags from the original seizure were displayed which showed that Hemraj’s pillow had been seized from the servant’s room on 1 June 2008, more than two weeks after the murders.

Dahiya had said he stood by his report ‘one hundred per cent’, but the evidence rendered the story he had spun false. And Mir wasn’t about to allow him to offer any explanations, or worse, tell another story. He had confined Dahiya to questions on the weapons and the scene based on hard evidence on record. He had repeatedly suggested that Dahiya’s findings weren’t based on science or fact. He assumed the court heard him. He was done with the witness.

Satyaketu Singh rose to do his part. ‘Where had the murders taken place?’

Dr Dahiya now warmed to his theme:

‘Both the deceased were attacked in Aarushi’s room . . . Both were assaulted on Aarushi’s bed . . .’

The CBI counsel R.K. Saini could not contain his excitement. ‘What were they doing? The court should record what they were doing! They were having intercourse!
Likho “sambhog! sambhog!”
’ he screamed.

The Talwars looked on in dismay.

The judge made a mild intervention: asking Saini to tone down the language, he told the witness to continue. For the record, Dahiya calmly said: ‘The murders were committed because both the deceased were found in a compromising position, having sexual intercourse in her room.’

Dahiya was steadfast in his defence of his report. He had gone by what he was told. Not by what he wasn’t. Like the fact that Hemraj’s blood was never found in Aarushi’s room. Or that a number of witnesses had contradicted the view that bloodstains had been wiped. Or that Hemraj was found on the roof with his slippers still on. All these facts were available to Kaul when the CBI asked Dahiya to write his thesis.

In conclusion, Dahiya said: ‘It is incorrect to say that my report is unscientific and has been made in connivance with CBI officials.’ He left the court having placed his expert opinion that Aarushi and Hemraj were having sex. In doing so, he had prepared the ground for the next witness: A.G.L. Kaul.

***

On 16 April, exactly a month short of the fifth anniversary of the murders, A.G.L. Kaul walked into the Ghaziabad court to depose. Kaul had turned up in court several times before, to check on progress and hold his informal meetings with reporters. It was time now to reveal the full story—to say out loud what he had only whispered in the courtyard outside.

The final conclusion of Kaul’s 2010 closure report was that there wasn’t enough evidence to convict the Talwars. He would now have to explain why the CBI sought a conviction.

Kaul began by talking about when he took over the investigation, and said, ‘As on date, I am testifying before this honourable court that I fully and firmly stand by my final report dated 19.12.2010.’

This wasn’t a mere formality. It was a statement loaded with significance. Because the final report said:

 

• There is no evidence to prove that Hemraj was killed in Aarushi’s room.
  
• Scientific tests on the Talwars have not conclusively indicated their involvement.
  
• There is absence of a clear-cut motive and incomplete understanding of the sequence of events and non-recovery of one weapon of offence.
  
 

But the same report also said that, in the locked flat, the parents were the only people who could have committed the crimes.

Kaul’s testimony tried to explain why. In a rambling deposition, he talked about the evidence he had gathered from the statements of the two post-mortem doctors; the recreation of the events on the roof; the recovery of a murder weapon; and, of course, the conduct of the Talwars: Rajesh’s refusal to identify Hemraj’s body immediately, and the hiding and cleaning of the missing golf club.

Early in the piece, he made an admission. He had ‘created the email ID
[email protected]
during the course of the investigation’.

The Talwars had, according to him, attempted an elaborate cover-up: ‘The scene of the crime had been dressed up. The bed on which Aarushi’s body was found did not have creases on it. There was no stream of blood from the cut on Aarushi’s neck, and there was a spot of wetness on the sheet. Hemraj’s body was covered with a panel on the terrace and the terrace door was locked.’

Also, he said, ‘no outsider’ could have entered the flat, even though the Talwars had tried to create the impression that someone had locked them in from the outside: ‘One door to Hemraj’s room opened in the passage between the main door and the metal door, while the other door to his room opened inside the house. If one were to exit Hemraj’s room from the door in the passage, one could lock the metal door from outside, and then enter the house from the door which was inside the house.’

Much of what Kaul told the court was in the closure report, but in court, Kaul stated categorically what he and the CBI had only insinuated: ‘These murders were committed by Dr Rajesh Talwar and Dr Nupur Talwar.’ The press contingent on that day was significantly larger than on others, and the news that the ‘parents are the killers’ was broadcast almost as soon as Kaul had uttered the words.

***

Tanveer Ahmed Mir had worked out his line of attack on Kaul. His argument was that the investigations had been completed in 2010 and the CBI had concluded there wasn’t enough evidence to convict the Talwars. No new evidence had come in since, so how could the Talwars be suddenly found guilty? This would be a running theme in his cross-examination: from the weapons to the forensic tests and the expert opinions, Mir would challenge Kaul by asking him what in his testimony went beyond his closure report.

Mir would also try to establish the dubious nature of investigations under Kaul: the tampering of evidence and the manipulation of witnesses.

There was a third, subtler, part to Mir’s strategy. By limiting what he asked Kaul to the closure report and his conduct, Mir would effectively allow the gaps in the investigation to go unexplained. The law on circumstantial evidence cases was clear: every link in the chain of evidence would have to hold firm for a conviction. Every aspect of the prosecution’s story had to, therefore, be clear, logical and backed by an irrefutable circumstance. It wasn’t good enough, for instance, for the CBI to say that the entry of outsiders was improbable—the agency had to prove that it was impossible.

Kaul’s deposition had left many questions unanswered. The key question was: ‘So how exactly did the murders take place?’ This was another way of wording the admission in the closure report: that the sequence of events between midnight of 15 May and 6 a.m. on 16th, when the maid Bharti Mandal turned up for work, was unclear.