Aarushi

by Avirook Sen

  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 hemraj.jalvayuvihar@gmail.com 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.

  Nothing that Kaul had said so far had made it any clearer—he hadn’t even speculated about how the actual assaults took place. Mir wanted to keep it that way. He went at Kaul from different angles.

  Kaul had told the court that a report from the CFSL:

  indicated that two golf sticks were cleaner than the others. Out of these two golf sticks, the dimensions of one golf stick was matching with the blunt injuries . . .

  Experts had examined the golf club bearing no. 5 and measured the size of the striking surface as 8 cm and on this basis, I had stated in my report that the injuries on the heads of both the deceased had been caused by golf club no. 5.

  The testimonies of the post-mortem doctors had already established that Kaul hadn’t sent the clubs to them for an opinion on whether one of them could have caused an injury and he admitted that it was ‘nowhere mentioned by the post-mortem doctor [in the post-mortem report] that the injury was V-shaped or U-shaped [triangular]’.

  The CFSL hadn’t offered any opinion on the matter either: the lab’s report merely measured the clubs, and, in the process of looking for DNA or blood, found that two—a wood and a 4 iron—appeared to have less dirt than the others.

  But all along, and even during his testimony, Kaul had pointed to the ‘cleaner’ 5 iron as the murder weapon. Mir wanted him to confirm this yet again; he suggested Kaul had been wrong about both the number and the physical state of the specific golf club that was the purported murder weapon. Kaul replied: ‘It is incorrect to suggest that in my final report I had wrongly written that scientists after examination found that golf stick no. 3 [the wood] and golf stick no. 5 were cleaned completely and because of this compared to the other golf clubs they looked very different.’

  The sum of this was: if at all a golf club was used as a weapon, it wasn’t the one that was allegedly cleaned.

  Kaul faced more questions about the golf clubs. In the July 2008 AIIMS report, both post-mortem doctors had endorsed a khukri as a murder weapon in writing. In September 2009, Aarushi’s post-mortem doctor, Sunil Dohare—without having seen the clubs—had told Kaul that Aarushi’s head injuries were V- or U-shaped, and that a golf club was capable of inflicting them.

  Mir asked Kaul why he hadn’t placed the doctors’ July 2008 opinion on court record: ‘Is it because you knew that it favoured the accused? And why didn’t you ask Dr Dohare about this report as you recorded his statement?’

  Kaul’s reply set the tone for what was to come. He denied the suggestion that he had suppressed the report because it favoured the Talwars. ‘When I wrote Dr Dohare’s statement I did not have knowledge of the opinion.’

  ‘And did you confront him after you learned about it?’

  ‘I did not record any statement of Dr Dohare’s in regard to the opinion even after I knew about the report.’

  It was the defence’s job to suggest Kaul had been manipulative and malicious. It was Kaul’s job to deny this. And it was the court’s job to look at attendant circumstances—to, in this instance, evaluate whether he was telling the truth. The subject of the ‘non-recovered’ murder weapon had to come up. Kaul admitted that he had never asked for the Talwars’ surgical instruments. Had he seen one? Bought one from a shop?

  ‘It is correct that I did not even procure a dental scalpel from the market.’ Kaul admitted that he had interviewed two doctors from Delhi’s Maulana Azad Medical College. But that only one of them, Dr Dinesh Kumar, was called as a witness. Dr Chandra Bhushan Singh was dropped. Mir tried to extract why this was the case—after all, Dr Singh was more qualified to speak on the subject of dental surgery.

  ‘It is correct that Dr Dinesh Kumar does not teach dental surgery but Dr Chandra Bhushan Singh in fact teaches dental surgery.’

  ‘Had Dr Singh described the kind of scalpels dentists used?’

  ‘He had stated to me which kind of scalpel is used in dental surgery.’

  The no. 15 scalpel that dentists generally use has a cutting edge of 1 cm, and has to be held between the fingers, Mir pointed out. ‘It isn’t possible to cause the kind of neck injuries in question.’

  As if by rote, and with customary authority, Kaul replied: ‘It is incorrect to suggest that due to the shape and small size of the dental scalpel it is not possible to cause the neck injuries.’

  As pages upon pages of documents were referred to, Mir kept up the pressure on Kaul. As in the case of the scalpel and the golf club, he suggested that the CBI had tampered with evidence, and deliberately withheld information that pointed to the Talwars’ innocence. Kaul routinely denied all of this.

  If he had been so certain about the guilt of the Talwars, then why hadn’t he charge-sheeted them? And why had he not listed Nupur Talwar as an accused? ‘I had wanted to charge them, but my senior Neelabh Kishore prevented me from doing so,’ he said. Kaul, who had said he stood by his report, was now telling the court—and of course the media—that his seniors hadn’t stood by him. Predictably, this made all the headlines the next day.

  The most substantive part of the cross-examination was, however, under-reported. And this was the charge of tampering that the defence brought against the CBI: the alleged swapping of the pillow covers and the manipulation of the CDFD. Evidence that these exhibits had been tampered with also existed.

  Mir was ready with his questions. Had Kaul seen the CDFD report on the pillow covers? What did it
say? ‘I had perused this report. In this report it has been stated that the purple colour pillow cover that had been seized from Krishna’s room had yielded the DNA of Hemraj.’

  And when did he discover that there was a mistake in it?

  ‘I had noticed this mistake during the course of the investigation, but I do not remember at what point of time I noticed the mistake.’

  ‘Did you make a note of it in your case diary?’ asked Mir.

  ‘I did not mention this in the case diary.’

  ‘Did you inform anyone when you discovered the mistake?’

  ‘I did not enter into any correspondence with anybody.’

  ‘Why?’

  ‘Because I thought that when the expert [the CDFD scientist Prasad] testifies before this honourable court, he will himself talk about the error. He could have been briefed about it in his examination in chief.’

  Mir returned to Kaul’s claim that he had realized the error well before he wrote to the CDFD. Could he give a reason why he felt there was an error? Or was there none?

  ‘It isn’t correct to say that from the descriptions of the pillow covers no material was yielded on the basis of which it could be concluded that there had been a typographical error.’

  In other words, Kaul was saying there were things in the report that led him to believe that a typo had been introduced. Like many of the answers provided by witnesses, it was convoluted, but this was the way of the court. Still, there were some questions to which direct answers were unavoidable.

  ‘Could you give one reason on the basis of which you felt there was a typographical error?’ asked Mir.

  ‘I cannot state one reason specifically,’ said Kaul.

  ‘I suggest you are deliberately not telling the court the reasons.’

  ‘It is incorrect to suggest that.’

  Mir moved on. Had Kaul written to the CDFD about the error?

  ‘On 17.03.2011, I had written a letter to the director CDFD to the extent that it seems to me that the purple colour pillow cover seized from Krishna’s room and the pillow and pillow cover seized from Hemraj’s room have got interchanged as far as their descriptions are concerned. Therefore, the situation may be clarified.’