Aarushi

by Avirook Sen

  ‘What is the last book you have read?’

  Shyam Lal contemplated for a while, and said, ‘Last book . . . was at the time of my MA. That time.’ This would be 1975.

  ‘But newspapers I read regularly.’

  He then pointed me to his collection in one of the lower racks of his book case. ‘Chambers, Oxford . . . Father Camille Bulcke . . . has done a tremendous job . . . English to Hindi . . . here is Law Lexicon.’

  Shyam Lal was enjoying showing me his books, but he wasn’t saying much. He was chewing paan, emitting sounds and smiling each time he pointed to a title. There were books by Fali Nariman, Justice Krishna Iyer, more law books and, then suddenly, a book definitely post-1975, Chetan Bhagat’s Five Point Someone tucked in between.

  ‘Have you read it?’

  There was no real answer. Just more nodding and more smiling.

  I now asked the retired judge about his writing: ‘How long does it take you to write a page?’

  ‘One page? Ten minutes, maximum. Only ten minutes.’

  His lawyer son Ashutosh, who had joined us, spoke: ‘But the situation was different in the Aarushi case . . . We had to use some good words in the judgement . . . We have to go through that page again and again, so there is no mistake. So it took some time.

  ‘The difficulty was finding a typist. Because, you know, in Ghaziabad all typists are for Hindi language only. Only one or two stenos are there who can type the judgements in English. We had to make special arrangements. In fact I was the one who typed the beginning personally. First ten pages.’

  The judgement was 210 pages, and although much of it was cut and pasted off other judgements, I was interested in how long it took to write. Ashutosh Yadav, who was extremely happy to have made his own contributions to the document, unwittingly let a secret out:

  ‘It took more than one month,’ he said.

  ‘So you had gone to Ghaziabad more than a month before to help out . . . ?’

  ‘Yes, I was there,’ said Ashutosh.

  I took this information in, and did my best to appear deadpan. Because the facts were these: Judge Shyam Lal pronounced his judgement on 25 November 2013. Tanveer Ahmed Mir, counsel for the defence, began his final arguments on 24 October. Over the next two weeks he would argue on a total of 24 circumstances that he felt should lead to acquittal. Seven of these were major points. As Judge Shyam Lal and his son sat down to write the judgement, Mir had not even begun.

  The Talwars and Mir had their own stenographer-related problems and would submit the arguments in writing only around 10 November. (Their typist was also a kabab seller who had got busy with his food business in the festive season.)

  At each hearing Judge Shyam Lal would urge Mir to do two things: wrap up quickly and submit the written arguments. As Mir soldiered on, neither he nor the Talwars would have known the fruitlessness of their exercise. Ashutosh was right, the guilty verdict was already being worked on.

  Shyam Lal after a brief while mumbled: ‘No, no . . . about a fortnight, not a month.’ But by then, his son had given too many details away: his trip to Ghaziabad, that he typed out the first ten pages himself as they tried to make special arrangements for a typist, the requirement for ‘good words’ which took time.

  ***

  As I sat across him in his Allahabad home, I asked Shyam Lal whether he remembered the day in court when the CBI had to admit they had lied about Hemraj’s pillowcase being found in Aarushi’s room.

  ‘Yes, yes . . .’

  ‘But in the judgement you returned a finding that the pillow cover was recovered from Aarushi’s room . . .’

  Shyam Lal stiffened up slightly: ‘Dekhiye, I cannot remember . . . har ek chhoti cheez aise . . .’ (every small thing).

  ‘But it was a very major thing,’ I went on.

  ‘Nahin, but what is the point of some controversy? I cannot remember . . . iss time pe . . .’

  ‘Sir, I find it very hard to believe that . . .’

  ‘I cannot remember, I will not give you some hypothetical answer . . . Dekhiye, let bygones be bygones . . .’

  I returned to whether he was satisfied with the judgement, whether it was, indeed, the best work of his career. A smile of contentment came over his face.

  ‘I have given badhiya badhiya judgements . . . yeh highlighted case thaa . . .’

  ‘Were you in some kind of hurry? You were about to retire . . .’

  ‘Supreme Court asked that we expedite the hearing. It was incumbent upon me to comply.’

  In fact, the Supreme Court had refused to rule on a petition by the Talwars asking for a direction to the trial judge to allow them to cross-examine witnesses, asking them to apply to the Allahabad High Court instead. When the Talwars sought a week’s time to do so, Judge Shyam Lal only granted them two days, threatening to cancel their bail if they didn’t comply.

  On 17 May 2013, he passed what was considered in Ghaziabad a ‘strong’ order filled with ‘good words’, including this gem:

  Undaunted by their unsuccess in the Supreme Court, they have now approached the High Court. The application has been oppugnated by CBI tooth and nail on the fulcrum of putting unwarranted road blocks in the surge of an urge for expeditious trial as mandated by the Supreme Court.

  There was more:

  Procrastination is the thief of time. Now the time has come to see that the syndrome of delay does not erode the concept of expeditious justice which is a constitutional demand. Sir Francis Bacon in his aphoristic style said ‘hope is a good breakfast, but it is a bad supper’.

  Apart from Bacon and breakfast, I was particularly struck by the phrase ‘surge of an urge’. So I asked Shyam Lal about it. Where had he come across that phrase?

  ‘I have done so much study . . . I can’t say where I have read, I have read so much, which newspaper, which magazine, which journal . . . but this is very difficult to remember . . .’

  The press, including the English press, was utterly impressed with the 17 May order. ‘This judge can write,’ one of them told me, nodding in appreciation.

  ***

  In both style and content, Judge Shyam Lal had provided a glimpse in May of what was to come in November. The Talwars, by repeatedly challenging his orders (and repeatedly being rejected), had helped him. Tanveer Ahmed Mir told me that he had taken too long to understand Judge Shyam Lal’s temperament: by the time he did, it was too late. He had had enough of piling up rejections from Judge Shyam Lal, and perhaps the defence would have been better served if they had challenged him less.

  But Judge Shyam Lal’s reputation would have to be dealt with regardless. After all, they called him ‘Saza Lal’.

  I asked him, ‘Do you know what they call you in Ghaziabad?’

  He smiled a smile that was at once smug and bashful. ‘Yes.’

  ‘You like the name Saza Lal?’

  He let out a short laugh. ‘I take it lightly. It was given to me when I was posted in Bulandshahr . . . by the lawyers of Bulandshahr.’

  ‘Why?’

  ‘Because of conviction in certain cases . . . I did not spare anyone.’

  ‘Do you remember acquitting anyone?’

  ‘So many cases. I don’t have any personal animosity.’

  ‘Give me an example . . .’

  ‘So many cases.’

  ‘Tell me about one.’

  ‘This is very difficult . . .’

  I believed Shyam Lal. Judges tend to convict in high-profile cases because they don’t want to open themselves up to any controversy. It almost makes sense for a man in that position to convict. In case there is a miscarriage of justice, it becomes a higher court’s responsibility to correct it. Meanwhile, one can at least retire in peace.

  But what of the process of a lower court trial itself? The Talwars repeatedly challenged Judge Shyam Lal’s orders, and were repeatedly thwarted. For instance when they went to the high court and won an order giving them access to vital DNA analysis, the CBI simply decided not to provide the m
aterial. They told the trial court they had already given the Talwars all they had, and Judge Shyam Lal accepted this. The Talwars had the option to go back to the high court to force compliance, but they didn’t. They knew they would be accused once again of trying to delay proceedings. By now, they also knew they would be angering Judge Shyam Lal.

  Why don’t the higher courts intervene? They are overworked and often use their discretion to send the matter back instead of examining the merits themselves.

  There were more than a dozen orders Judge Shyam Lal passed through the Talwars’ trial that could have been overturned by a higher court. Even if a few had been, the complexion of the case may have altered dramatically. As things stood on the evening in March 2014 when I met the trial judge, the Talwars were bracing themselves to join the queue in the appeals process. Their turn would come in four or five years, at the earliest.

  ‘Mean-the-while’, as Judge Shyam Lal would say, Dasna jail would be their home.

  The Appeal

  I had travelled to Allahabad to get a sense of the appeal court. The Talwars had been there often enough. During the trial, a harrowed Dinesh Talwar would often be booking multiple tickets for himself and lawyers travelling up and down. The Talwars were never quite sure when there would be a date, or how long they would have to stay.

  The Prayagraj Express (named after the holy confluence of the Ganga and the Yamuna) was dependable, but sometimes schedules demanded a flight to Varanasi airport, a rough four-hour-drive away. Arranging all this was a logistical nightmare, but it had to be suffered: two people were in jail for life.

  Dinesh Talwar would check into Hotel Ravisha, a mid-range property close to the court. Saini and Co. stayed at another hotel a few hundred yards away.

  The court was an impressive nineteenth-century colonial building: one of those that confirmed the belief that the British didn’t really want to leave India (ironically, it was built by an Indian satrap). Allahabad remains an important cultural centre. But in that area, it appears to be living on interest on fixed deposits. It was Premchand’s home town, and the hub of Indian language publishing in the first half of the twentieth century. Most of Rabindranath Tagore’s works, for instance, were printed out of presses in Allahabad. (Yes, there were a few other Allahabad notables: the Nehrus—and Amitabh Bachchan.)

  The hearing in the Aarushi–Hemraj case had been postponed, so I spent the day exploring the city with an acquaintance. He knew Anurag Khanna, the local CBI counsel for the Aarushi–Hemraj case. Khanna had been a classmate of his, so we dropped in at Khanna’s bungalow in the evening. I saw a police vehicle outside—and knew instantly who the other visitors were.

  Khanna was a man in his late thirties or early forties, the kind of age where successful people begin to look distinguished. He was very much a part of the Allahabad upper class. Seated across him in his office were R.K. Saini and Arvind Jaitley.

  I was just introduced to Khanna as a journalist, when Saini interrupted, as if by training. (In the context, this was amusing.)

  ‘He is not a journalist, he is no less than a counsel for the accused,’ Saini told Khanna. Tea, and Allahabad’s famed samosas, arrived as Saini continued: ‘He is such a person, he will write anything and everything!’

  I put in a mild interjection: ‘Did you have any issues with the facts I reported?’

  Saini’s brow was twitching wildly now. ‘I don’t read your reports,’ he said with a wave of his hand. He turned to Khanna: ‘I will give you an example. One day I had been ill and had not come to court. The next day, in the courtyard, Rajesh Talwar asked me how I was and what I had been prescribed. I showed him the medicines. And this man was standing there and wrote all this!’

  I remembered the day well. ‘The incident happened, didn’t it?’ I asked.

  Saini ignored this. Addressing Khanna, he said, ‘I can tell you that we are sitting here with him and this fellow will now go and write everything about this. He will say Saini said this and Saini said that.’

  On the evidence adduced above, I can verily say that this cannot be classified as a hollow claim.

  ***

  In his diary, Rajesh Talwar had expressed the hope that he and Nupur would be out of jail by April. But he was going by what he was told on visits. The hopes of Dasna and the realities of Delhi were utterly different.

  The first step was a plea for a suspension of sentence (the same thing as bail, except that it concerns those convicted and appealing). The preparation for this was taking its time because of disagreements between the defence’s lawyers rooted in their collective fear of rejection.

  Rebecca John, senior advocate of the Supreme Court, who had worked for the Talwars pro bono since 2011 was to be the lead counsel; Tanveer Ahmed Mir would assist. Mir’s involvement in the case meant that he knew it backwards and was ready to go at any stage. Rebecca was more circumspect, and needed time to study the best options.

  It wasn’t until mid-May that the high court finally heard the prayer.

  This was only a plea to release the Talwars from custody and allow them the opportunity for appeal, but the case made out resembled an appeal. It was in four thick volumes, most of which concerned why Judge Shyam Lal’s judgement was flawed.

  The basic grounds for a suspension of sentence are that those convicted get a fair chance to go in appeal. For instance, unfettered access to their lawyers, which isn’t possible in jail. Or the life-destroying wait in the appeal process: in 2014, Allahabad was still hearing appeals from 1982–83. Other grounds included the convict’s track record. Would he or she be a menace to society if let out of jail?

  The Talwars’ four-volume submission went much further, but not necessarily to their advantage.

  In the high court, before Justices Agarwal and Tiwari, Rebecca John, whom the bench for some reason addressed as ‘Robert’, laid out most of the defence’s arguments. Mir followed, saying his clients had been model citizens with no hint of a prior conviction, who had turned up in court every time they were required. There was no danger of them running away or repeating the crime they were supposed to have committed.

  Judge Tiwari said, ‘Mr Mir, your clients cannot repeat the crime because they do not have another daughter to murder.’

  The Talwars’ lawyers were stunned. That evening they argued passionately about whether they should seek a transfer out of the court on the grounds of prejudice. Mir was of the view that the case was strong: the remark was made in public, and conformed to no standards of propriety, leave alone a high court’s.

  In the end, they decided to remain silent. They had already been branded compulsive litigants—moving against yet another judge would only fortify this perception. Yet again, they would be cast as people who believed the world was conspiring against them while everyone else thought it was fair.

  Perhaps this was a mistake. Because what was handed to them in end-May was about what they might have got had they mooned their lordships.

  Judge Tiwari wrote the ruling. Having considered the volume of submissions, he thought it only fair to the Talwars that he go beyond the limited scope of the plea—a suspension of sentence—to the merits of their case for appeal.

  He proceeded to agree with every one of Judge Shyam Lal’s findings, and added some of his own. Tiwari’s ruling said the Talwars had ‘dressed up’ the crime scene on the terrace as well: they had slipped Hemraj’s chappals on him after killing him.

  ‘Prima facie,’ concluded the judge, ‘no legal infirmity is found in the impugned judgement. We, therefore, do not see any mitigating circumstance why they be granted freedom on bail . . . We may not be misunderstood by any observations made above, as it is only for the purpose of disposal of bail application and are not on merits of appeal.’

  The judge took note of the Talwars’ concern that appeals are delayed, and set a date for appeal one week later.

  That, however, was not enough time for the Talwars to reprepare their appeal in the light of Judge Tiwari’s rejection of th
eir plea for a suspension of sentence. There was a difference of opinion within the defence team on strategy and the kind of damage that Tiwari’s order might have done to the case.

  At the Allahabad High Court, routine reconstitution of benches was also taking place. All of this dragged the case on for the next six months.

  ***

  A.G.L. Kaul

  On the morning of 10 October 2014, A.G.L. Kaul passed away. He suffered a sudden heart attack sometime around dawn.

  Kaul had been active till the end, and the news came as a shock to everyone who knew him. News reports and obituaries all mentioned his work in the Aarushi–Hemraj case. It was the investigation he would be remembered for.

  His former director, Amar Pratap Singh, under whom the closure report in the case was filed, wrote a touching piece in which he praised Kaul’s dedication to his work. Singh mentioned the Aarushi case as an example: despite the shortcomings of the early investigations, and opposition from seniors, Kaul was able to win a conviction, said Singh. He had been proved right.

  Others remembered him too. Two months after the Talwars had been convicted, Kaul travelled to the Gandhinagar lab with another case. At what used to be Dr Vaya’s department, he met one of her juniors, Dr Amita Shukla.

  Dr Shukla had been involved in the tests done on the Talwars and Rajkumar. She told Kaul, ‘Why have you come to us? What is the point of doing tests for you if you either dismiss them or twist reports?’

  Kaul replied that it was his job as an investigator to use what he needed for prosecution.

  ‘But you had all these tests conducted, why didn’t you at least allow them on record? Let the court make up its mind after that.’

  Dr Shukla remembers Kaul laughing and saying, ‘Madam, if we had placed all your tests on record, the case would have turned upside down.’