Thursday saw a peculiar development in the Aarushi-Hemraj murder trial. A witness for the prosecution was summoned, duly arrived, but was not allowed to testify. In a handwritten application signed by its counsel R.K. Saini, the CBI told the special court that it had "reliably learnt that the prosecution witness Smt Kalpana Mandal has been won over by the accused and is not going to support the prosecution case". She would, therefore, not be examined.
Kalpana Mandal had worked as a maid for the accused, Aarushi's parents Dr Rajesh and Nupur Talwar. She had been in their employ for three years, when she left for her village a week before the murders in May 2008.
The accusation that Kalpana had been "won over" was made without any supporting evidence. It comes one working day before Nupur Talwar's bail plea is heard in the Supreme Court on Monday, 17 September.
In August, the Supreme Court had allowed more than a month's time for the trial court to examine 13 witnesses (including Kalpana) who the CBI argued may be "tampered" if Nupur was released. Nupur has been in Ghaziabad's Dasna jail since 30 April. Rajesh Talwar remains on bail.
The defence reacted to Thrusday's allegation immediately, filing an application of its own that said the CBI's claim was fabricated. Rebecca John, one of the Talwars' counsels said the CBI's application "is a crude attempt at prejudicing the Supreme Court when it deliberates on Nupur Talwar's bail application".
The defence also made the point that the witness wasn't produced even though she was present in court; that she had been brought there by the CBI in response to summons the court had issued. And, that it was for the "court to decide whether a witness has been won over or not" after hearing him/her.
Why would the CBI bring a witness to court and not let it hear her testimony? And why did it make the allegation that the maid had been "won over"?
The second question is fairly easy to answer: at Nupur Talwar's last bail hearing in the Supreme Court, the CBI read out a litany of tampering charges against the Talwars related to the investigation. It is now likely to argue that the dentist couple was doing the same during trial.
What is harder to explain is this: how did the CBI "reliably learn" that Kalpana Mandal had been "won over"? It offered not details on this, besides only her testimony would establish if this was the case; and she was not allowed to testify. The agency could have done one of just two things to gain the ‘knowledge' that the accused would not support the prosecution case. It had to either grill/school her extensively before her appearance in court; which is illegal and attracts the same tampering charge leveled against the Talwars. Or, it could have read her mind—this isn't illegal, but has a high degree of difficulty, and not strictly "reliable".
R.K. Saini, the prosecution counsel who signed the bald five-line application, was not in court on Thursday. He told me over the phone that he had viral fever. I asked another CBI counsel, B.K. Singh, about the application, as Singh and the CBI officer Arvind Jaitley sat in court after Kalpana had left.
Singh began by saying the prosecution had simply filed told the court it would not examine a witness. When I asked him about "reliably learnt", he said: "Who toh hamne achaar tha
". ('That was pickle')
I asked him what he meant, and then, at Jaitley's prompting, he just repeated the line in the application. Neither man would specify precisely who "won over" Kalpana. It could have been anybody connected with the accused, Singh said.
The facts about Kalpana Mandal are as follows: The CBI had recorded her statement in April 2010, in which she described her routine at the Talwar's flat. The statement contained nothing that could significantly alter the course of the trial if she stuck to in the special court.
Bharti, the maid Kalpana found for the Talwars as her replacement when she left, was far more critical for the prosecution. She was the first to arrive at the Talwars' flat the morning after the murders.
Bharti appeared last week, and almost as soon as her cross-examination began, blurted out that she was repeating what had been dictated to her.
Within minutes of saying this, Bharti was whisked away by the CBI without the court's permission. This earned them a reprimand—witnesses must remain in court throughout their depositions—but the operative part of her statement was already on record: ""Jo mujhe samjhaya gaya hai, wahi bayan de rahi hoon".
Kalpana Mandal arrived in court at around 10.30 on Thursday morning, chaperoned by the CBI. An hour later, and without warning, the agency filed the application that it would not examine her.
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Aarushi trial: Did the CBI dictate witness' statement?
Maid's testimony adds to the mystery
Currently a visiting fellow at INSEAD, France, Avirook Sen has been a journalist and writer for over 20 years. A former resident editor of Hindustan Times (Mumbai) and editor of Mid-Day, he has written with passion and insight on subjects as varied as sport and terrorism for top publications across the world. His first book, Looking for America, was published in 2010 to enthusiastic reviews. You can write to him at email@example.com