Aarushi (24 page)

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How did Kaul know exactly when Hemraj fell off the bed? Or that his head had moved which is why Aarushi was struck? Or that both parents checked Aarushi’s pulse to ascertain that she was dead?

These were questions that the court had to deal with. Plausible or not, Kaul used this opportunity to tell the court his theory. For the electronic media it was more than that, it was a script crying out for visual recreation. The various renditions weren’t necessarily more ‘true’, but they certainly made Kaul’s story more ‘real’.

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Tanveer Ahmed Mir was beside himself with what I can only describe as grief at this turn of events. His case—that the CBI had no evidence, not even an idea, about how the murders actually took place—had just disintegrated. However outlandish the story might have been to those who followed the case, it had been told.

It was for the judge to now decide whether it was possible to explain how Kaul knew that the parents took Aarushi’s pulse. Or why Rajesh’s DNA wasn’t found on the whisky bottle even though he drank directly from it and his sputum was bound to leave traces. Or why Hemraj, supposedly in the midst of coitus, would eventually be found fully clothed, wearing his slippers, with no traces of Aarushi’s blood on him, even though the fatal blow to her was allegedly struck while he was on top of her.

Following his narration, Kaul faced some final suggestions from the defence. That Aarushi and Hemraj were not in the teenager’s bedroom together at all. That the question of Rajesh Talwar attacking them there didn’t therefore arise at all. That he had concealed material that may have helped acquit the Talwars and deliberately not investigated the real culprits. For each of these suggestions, Kaul had the same five words at the beginning of his response: ‘It is incorrect to suggest . . .’

And with that, the prosecution had closed its evidence. It had nothing more to say.

The investigating officer is usually the final witness for the prosecution. When Kaul had stepped in to testify, it was obvious that the CBI wouldn’t call any more witnesses. Only 39 of the 141 witnesses relied upon by the prosecution had deposed, but the agency felt that they were enough to make the case.

There was a context to this. It was the end of April 2013, and Judge Shyam Lal was due to retire in November. Several things remained to be done before the judge could pronounce a verdict. The Talwars would have to go through a process under Section 313 of the CrPC where the judge recorded their responses to what each prosecution witness had said: he had a list of 800 questions for them. Defence witnesses would then be summoned, their statements and cross-examinations recorded. The last stage was that of final arguments.

Each of these was a time-consuming procedure—the examination of the prosecution’s witnesses itself had taken close to a year. Not the least because of the unpredictable nature of working days in Ghaziabad, with all its ‘condolences’ and strikes. But the CBI felt that all pending procedures would have to be compressed into that time—the prosecution stood its best chance with Judge Shyam Lal presiding. In part, the shortening of the list of witnesses had to do with the need for speed. In part, it was strategy. There were several witnesses on the CBI’s list whose testimony would have favoured the Talwars.

Sushil Choudhry, the eye doctor K.K. Gautam had claimed had asked him to ensure the word rape wasn’t mentioned in the post-mortem. Choudhry had denied vehemently that he said such a thing, but not in court, because he was never summoned. Sunita Rana, the lady constable on the scene, could be used to establish the fact that the flat was cleaned in the presence of police personnel while the Talwars were away at the crematorium.

Witnesses for the CBI had routinely changed their statements. What they had told investigators earlier, especially to those from Arun Kumar’s team, was often characterized as something they had either no recollection of saying or not said at all. When the defence challenged them on the new ‘facts’ they had revealed to Kaul’s team, they regularly said they had told the CBI this earlier too. They did not know why people on the earlier team had chosen to omit these facts.

One instance of this is the testimony of the Talwars’ friend Rohit Kochar. In a statement made to Subinspector Yatish Sharma in October 2008, Kochar said he had gone to the Talwars’ flat, but said nothing about observing ‘wiped bloodstains’ on the stairs leading up to the terrace. In June 2010, in a statement recorded by Kaul, Kochar’s memory of the bloodstains was vivid.

The defence felt it had to be given the opportunity to confront the officers with this: Did they really leave crucial details out? Or had the witnesses been pressured into ‘recalling’ them after more than two years?

And then, there was Arun Kumar, Kaul’s predecessor. It was Kumar who had pointed to the guilt of the servants before he was replaced. What were his reasons? Within a week of Kaul’s deposition, the Talwars made a list of witnesses the CBI had dropped and applied to Judge Shyam Lal seeking he summon them as court witnesses—that is, neither for nor against any side. They argued that these people could not be reasonably called to testify for the defence because nine of them were serving police officers, and there was no way they could be persuaded to testify against the CBI.

Judge Shyam Lal rejected the application summarily and told the Talwars that he would begin their ‘313’ right away. Without the evidence of the additional witnesses, the Talwars felt their responses to the judge’s questions in the 313 would be considerably weakened. They knew that going to Allahabad was pointless—by the time they were heard, the 313 would be over. That court was notorious for its backlog.

Not for the first time, Rajesh and Nupur Talwar approached the Supreme Court directly. They prayed for direction to the lower court to summon additional witnesses, quoting an order in the 2002 Gujarat riots Best Bakery case:

The Learned Trial Court and its obligation in a criminal trial is to take steps for discovery, vindication and establishment of truth and hence the trial should be a search for truth and not a bout over technicalities, the presiding judge must cease to be a spectator and a mere recording machine . . . In case the prosecution or the defence has failed to produce material witnesses and material evidence, which is necessary for just & proper disposal of the case and to uphold the truth then it is a duty enjoined upon the trial court to . . . call all such witnesses whose testimony can be an aid to uphold the truth and in order to impart justice with fairness and impartiality.

The Talwars’ plea slipped under the news radar that day because the media was focused on the Supreme Court’s decision in the actor Sanjay Dutt’s case (related to the 1993 Mumbai blasts). But it was a busy Friday even otherwise. The Talwars’ petition was listed for 2 p.m., but at the ‘end of the board’—meaning it would be one of the last things entertained by Justices Patnaik and Sikri. In the event, it came up at 4 p.m., minutes before the closing for the day—and the summer. The bench had had to deal with 73 matters. Another half a dozen urgent ones (like the Talwars’) came up after. In one case, a demolition supposed to take place on Friday was stayed. The Talwars and the CBI got under 60 seconds.

Just enough time for the defence’s K.V. Vishwanathan and Tanveer Ahmed Mir to tell the court their matter was really urgent, and for the prosecution’s Sidharth Luthra to mumble something about why they hadn’t approached the Allahabad High Court first. But the judges had had a long day. They moved the application to a vacation bench. When this bench met the following week, it told the Talwars they had to go to Allahabad with their grievance, and made the accommodation of requesting the high court to hear the matter out of turn.

Their 313 was in progress, so they went back to the trial court to plead with Judge Shyam Lal to grant them leave to approach the high court along with Dinesh Talwar who had assisted them every step of the way. Saini sprang up to object, and resorted to the language of the street:
‘Kabhi yeh bhai ko bhejte hain, to kabhi baap ko!
[Sometimes he sends his brother, sometimes his father!] They are just trying to delay the trial.’

Rajesh Talwar had hot tears of anger in his eyes: he had been very close to his father, an eminent doctor who had passed away a decade ago. Judge Shyam Lal ignored Saini’s remark. He was furious at the Talwars, and let this be known in his order on 14 May. It began: ‘Undaunted by their unsuccess in the Supreme Court . . . they have now approached the Allahabad High Court . . .’

He gave the Talwars two days’ leave. If they failed to appear after that, he would cancel their bail.

And when the Talwars’ plea came up in Allahabad, it was rejected on the grounds that it was the prosecution’s prerogative who it wanted to call, and the trial judge’s discretion to summon witnesses to his court.

All of this was happening while the 313 was in progress. Most of the questions in the process were routine, but Nupur Talwar answered one tricky one for the record. This concerned the keys to Aarushi’s room. In their 2011 protest petition filed in response to the closure report, the Talwars had said the keys were kept in the bedroom that night, as they usually were. The policeman Mahesh Mishra had confirmed they had said this in the trial court.

To the judge, Nupur said that she had used the key to enter Aarushi’s room sometime after 11 p.m. Rajesh had complained the Internet was slow, and the router kept in Aarushi’s room needed to be switched off and turned on again. Nupur told the judge that she may have inadvertently left the key in the keyhole as she returned to her bedroom.

She had obviously changed the Talwars’ stand: they had initially said the keys were in their bedroom; at the trial Nupur Talwar claimed she may have left them in the door after she returned to her bedroom having switched the router on and off. That they could not remember this worked heavily against them.

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As the 313 process drew to a close, it was time for the defence to seek the court’s permission to call its witnesses. But before that, it needed material placed on record before the court, and permission for its witnesses to examine exhibits. The narco reports of the servants and the raw data from the forensic tests were essential. The servants’ scientific test reports would give the defence the opportunity to present a narrative that was more plausible than the one the CBI had offered.

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.