What is the value of scientific tests such as narco-analysis and brain-mapping to an investigating agency when the Supreme Court has said (in 2010) that such tests cannot be admitted in evidence? Two trials proceeding simultaneously in a fast track CBI court in Ghaziabad provide an answer: when the state is prosecuting someone, and scientific tests implicate him, the tests, and the testimony of scientists who conducted them become valid. If, however, the tests point to the innocence of the accused, everything possible is done to prevent anything to do with the tests from entering the record.
Judge Shyam Lal's court in Ghaziabad is hearing two cases where the same social scientist, Dr. S.L. Vaya, formerly of the Forensic Science Lab, Gandhinagar was supposed to testify. Dr Vaya had conducted scientific tests on Moninder Singh Pandher and his servant Surinder Kohli, accused in the 2005-06 Nithari serial killings, where 18 children were allegedly assaulted and cut to pieces. Their body parts were dumped in drains surrounding Pandher's home.
Vaya had also conducted tests on the dentist couple, Rajesh and Nupur Talwar, to aid the investigation into the 2008 murders of their daughter Aarushi and servant Hemraj.
The Talwars had prayed to the court last week that Dr Vaya testify as a defence witness. Her test reports clearly suggested their innocence. But upholding a CBI objection that such reports were inadmissible and that the scientist's testimony would therefore be irrelevant, the trial judge rejected the Talwars' plea: there was no need for Dr Vaya to testify, it said in an order on Tuesday.
But Dr Vaya will appear in the same courtroom, before the same judge, sometime in early July. The CBI had requested the court to summon her from Gandhinagar to testify as a prosecution witness against Surinder Kohli. The tests conducted on Kohli and the Talwars were almost identical. The results were not: Kohli provided information that confirmed his guilt, helped investigators unravel a heap of confusing evidence. He eventually confessed before a magistrate.
The Talwars, says a source close to the investigation, were almost certainly innocent. Dr Vaya's report says as much: the lab didn't find any evidence of deceitfulness in either of them.
Kohli, who fights his own case, has since gone back on his confession. And now, the CBI wants to confront him with the results of his scientific tests and Dr Vaya's analysis. The court has allowed this, summons have been issued.
Dr Vaya's testimony would definitely have favoured the Talwars. But summons will not be issued.
Odd? Not really. This is the prevailing practice. A scientist I spoke to told me that the tests were devised in order to help people who were victims of circumstances gain acquittal, but this noble aim has been completely inverted. In this scientist's experience (and this is considerable) wherever there is a suggestion of innocence, the tests are either thrown out or suppressed. In the case of the Talwars, the tests conducted on the three servants have not been released, and their prayer to see the results denied. The servants, the CBI has admitted, implicated themselves -- therefore exonerating the Talwars.
But the Nithari case deserves special mention. Pandher, the gentleman who employed Kohli, was a co-accused. The argument went: How could he not know the horrific goings on in his own home? Fact is he didn't. The scientific tests suggested this, and although they weren't admitted as evidence because the CBI objected, Pandher was acquitted. Kohli, on the other hand, has been convicted in 5 cases building on the test results. The CBI seeks Dr Vaya's help to convict him in more.
Dr Vaya isn't the only critical defence witness who won't be allowed to testify. Arun Kumar, who led the initial investigation for the CBI initially, and went public with the Talwars' innocence wont be summoned either.
The court's detailed 11-page order is awaited.
Will the CBI give the Talwars a fair trial?
Could one of the servants have killed Aarushi Talwar?
Aarushi Trial: Talwars in the dock
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 firstname.lastname@example.org