Sheena Bora case: Doctor in trouble?

Judge Jagdale halted Dr Gupta's testimony several times because he felt it had neither order nor direction.
Tightly controlling his irritation, his lips compressed, the judge explained as patiently as he could: "What he has done in this case should come (out in his testimony) in a lucid manner. You eat chapati and then rice. You cannot eat half a chapati and then have rice and then eat half a chapati..."
"He is not a witness of facts. He is an expert witness. Either he is not prepared. Or you are not prepared."
Vaihayasi Pande Daniel reports from the Sheena Bora murder trial.
Illustration: Dominic Xavier/Rediff.com

The Wednesday, January 15, 2020 hearing of the Sheena Bora murder trial coincided with the winter solstice festival of Makar Sankranti.

Colour -- via the festive costumes of the court staff, all dressed to the nines in gaudy saris and kurtas, like tropical butterflies -- had stealthily seeped into the usually monochromatic, faded Mumbai city civil and sessions court at Kala Ghoda, south Mumbai, which is a place usually of government greys, drab whites and dull greens/browns.

Indrani Mukerjea, Accused No 1, who is Assamese, seemed to be marking the festival too (it is Bihu in Assam), in a bright purple and green kurta-churidar outfit.

That colour though didn't exactly extend to the witness box of Courtroom No 51, where the prim Dr Sudhir Kumar Gupta, 55, Prosecution Witness 61 and head of the forensic medicine department at New Delhi's All India Institute of Medical Sciences, was deposing.

His testimony was utterly devoid of colour.

So too his manner, which was distant and mildly disconnected.

Absent, as well, was any vigour and starch in his 'testimony in chief'.

As the head of a select committee or 'medical board' of doctors, especially constituted in 2015 at AIIMS, to tender, at the request of the Central Bureau of Investigation, a second opinion on Sheena's remains, Dr Gupta offered no new information or substance, though he was a top forensic specialist in the country and an expert witness, with a lengthy and stellar curriculum vitae.

It was not clear why he had even been summoned to this court to testify.

A short, chunky-looking man, he had prominent facial features -- heavy cheeks, sharply upturned nose and close-set, fierce eyes. His voice, though low pitched and often inaudible, was gravelly and a bit Al Pacino raspy. A sharp dresser, he wore neatly-tailored shirts, and trousers of unusual hues and patterns (blue checks) and opted to wear a tie on Wednesday.

It was actually Dr Gupta's second day in court.

The first day, Tuesday, shut down abruptly early because CBI Special Judge Jayendra Chandrasen Jagdale was unhappy with the lacklustre testimony that seemed to being going all over the place. His anger was not directed at the witness so much as it was directed at CBI Special Public Prosecutor Manoj Chaladan.

Judge Jagdale halted Dr Gupta's testimony several times on Tuesday because he felt it had neither order nor direction.

Tightly controlling his irritation, his lips compressed, the judge explained as patiently as he could: "What he has done in this case should come (out in his testimony) in a lucid manner. You eat chapati and then rice. You cannot eat half a chapati and then have rice and then eat half a chapati..."

"He can't be bringing documents (referring to the original letter from the CBI that Dr Gupta tabled which should have been tabled much earlier by the prosecution) out of his pockets. He is not a witness of facts. He is an expert witness. Either he is not prepared. Or you are not prepared."

Chaladan in reply said the witness was perhaps not able to remember what he had done in 2015 and there was a vague prompting to relate some sort of interaction with Dr Sanjay Thakur (the Raigad doctor who conducted the first post mortem in 2012 and Prosecution Witness No 52) and Dr Zeba Khan (of Sir J J Hospital, south central Mumbai, who analysed the bones first) that Dr Gupta didn't recall.

A few minutes later, Dr Gupta got mixed up over which remains (Exhibits No 1 through 13 of sets of bones) he had examined and which he had not, especially since Chaladan believed he had examined all with his team.

Finally, the proceedings had gone beyond the judge's endurance and he told Dr Gupta, shortly, to come back the next day and Chaladan was asked to brief his witness further and better and make a fresh start on Wednesday.

Part of the lack of clarity seemed to stem from differences in court procedure between Delhi and Mumbai and language or communication barriers.

At one point Judge Jagdale, perplexed by Dr Gupta's flowery English that often contradicted itself, asked: "Generally, which language do you use in day to day to work? Which language are you using?"

Dr Gupta, temporarily dumbstruck, had no answer.

Later, Dr Gupta, after the hearing was over on Wednesday, confessed that the manner in which an expert like him deposes is quite different in Delhi where he said the prosecutor reads the doctor's report and cues him when to agree or contribute at crucial points.

Chaladan on the other hand was also baffled by Dr Gupta's lack of participation, telling him on Tuesday, after the hearing was aborted: "I can't ask you leading questions."

The missed cues or crossed communication lines didn't end on Tuesday and the testimony hobbled along on Wednesday too with very few highlights.

The key points:

1. After receiving the request from the CBI on October 13, 2015, to conduct yet another post mortem examination (the fourth) of the remains, said to be Sheena's, Dr Gupta put together a 'board' that consisted of himself and his juniors at the department of forensic medicine at AIIMS -- Dr Kulbhushan Prasad, Dr Adarsh Kumar, Dr Millo Tabin.

His colleagues, he said, visited the 'alleged scene of the incident' in 2015 and 'interacted' with the other doctors who had conducted the post mortem, namely Dr Shailesh C Mohite (Prosecution Witness 58) and his team at the B Y L Nair hospital, central Mumbai.

2. Dr Gupta also received a letter from the CBI on 23/10/2015 asking if the skeletal remains showed any signs of "gunshot injuries".

3. "The skeletal remains recovered in the exhumation were medically examined and found to be human in origin and female. Age about 23 years. And the stature of the deceased was 158 cm +/-."

4. "By consulting various parameters time since death I have precisely mentioned (in his report) was three years... No ante-mortem (before death) injuries...'

5. 'On basis of skeletal examination I could not confirm if there were strangulation injuries."

6. And then, in seeming mild contradiction to point 5 above, this bafflingly: "The death, in this case, is due to asphyxia as a result of strangulation by way of ligature or manual (there are three types of strangulation, the first being hanging. Ligature or garrotting is 'without suspension' and can use a cord or a similar tool. Manual or throttling is with 'hands, fingers or other extremities', as per Wikipedia) cannot be ruled out. This opinion is based on elimination of associated causes of death in suspicious death."

Judge Jagdale, surprised by Dr Gupta's flow of language: "... cause of death in suspicious death?!"

7. Dr Gupta said he had also consulted several Indian and international textbooks and journals while drawing up his final conclusions. He listed three books, one of which was written by himself!

The silver steel trunk in which Sheena's alleged bones must uncomfortably rest, part of the skeleton unearthed in a mango grove at Gagode Khurd of Maharashtra's Raigad district, was pulled down from on top of one of the courtroom almirahs, by the court peons.

A series of packets were pulled out and everyone peered at poor Sheena's bones and skull, who would nearly have been 33, like they were some freaky new novelties.

Dr Gupta disdainfully refused to pull the out the bones or the skull from their envelopes, citing "I have no gloves. I have seen it".

How he was able to identify which bones they were from a bunch of bony remains at the bottom of an envelope, for the court procedure, was a mystery.

Many moments like this in this murder case have similarly been a let-down. The sheer lack of dramatic importance given to these occasions that you think should be packed with it, is always confounding. They pass by almost unnoticed.

Chaladan, who is mild in his approach, did not push Dr Gupta to be more meticulous in recording the details of the bones either.

At one point, the hyper-efficient court clerk, Ujjwala, who was decked in a black and gold sari on Wednesday, confirmed with Dr Gupta if the bones in the envelope were ribs or vertebrae or whatever as was written on the packet.

That led the judge to comment angrily to Chaladan: "You have to ask. Not the court staff. Such a big chief examination now the court staff is conducting?!"

In exasperation, Chaladan returned: "But he (Dr Gupta) is supposed to tell!"

The defence lawyers Shrikant Shivade, Viral Babar, Harshman Chavan and Gunjan Mangla watched these proceedings with amusement writ large on their faces.

Did it already indicate Dr Gupta was going to be an easy witness to cross-examine? A pushover?

Oddly, Dr Gupta was no stranger to these kinds of courtroom procedures. He has numerous landmark cases under his belt and told the court roundly that he had worked on "more than 40 extra-judicial killing cases".

While dictating this for the court record, Judge Jagdale rolled his tongue around the usage of word "extra-judicial", repeating it, in emphasis, as if it was hard to believe.

The doctor's CV on the AIIMS Web site states: 'He has served the Nation and has helped in bringing justice through forensic investigations in various challenging cases in partnership with the Interpol, CBI, NIA, NHRC, Delhi Police, various state police and all the levels of judiciary'.

He had apparently, as per the AIIMAS Web site, offered sterling assistance in cases like: The recent Hyderabad vet rape case, the 'extrajudicial killings' in Manipur (between 1980 and 2011), the death of then Union minister Gopinath Munde in a road accident, the Jessica Lal case, the killing of former minister Vidya Charan Shukla in a Maoist attack in Chhattisgarh, the Uphaar fire tragedy, the Shivani Bhatnagar case, the alleged Ilavarasan suicide tragedy, the Batla House encounter among others.

His role in a few cases apparently had attracted controversy. Several news reports from 2015 dwelled on a questionable role in the investigation into the death of Sunanda Pushkar, former Union minister Shashi Tharoor's wife, when he had announced that he had been under pressure to declare the death had been by natural causes.

This led AIIMS officials to file charges against Dr Gupta through the Central Administrative Tribunal.

When he mentioned the list of high-profile cases he had worked on to the court, he did not mention the Sunanda Pushkar alleged suicide.

He also said he had not "faced any departmental enquiry for the last 25 years (that he had been employed at AIIMS)."

Dr Gupta's cross examination will begin on January 20.

Indrani's bail application -- this time not on medical grounds, but on merit, although she vigorously denied that from the back of the courtroom -- came up.

Her lawyers wanted to know when they could have an answer.

The judge asked Chaladan when he would file his reply.

Chaladan: "Two weeks."

Judge Jagdale astonished: "Two weeks for what!?"

Chaladan waffled while giving his reply saying he needed to hear from K K Singh, the CBI's investigating officer on the case.

The judge wondered how Chaladan was going to contact Singh: "He has been absent for the last so many months and is busy with some other case."

Singh's absence and lack of response had already led to several complications in court. Accused No 2 Sanjeev Khanna had requested permission to renew his passport earlier but the passport was in Singh's custody and could not be obtained.

Chaladan said he still needed to consult either the investigating officer or the holding investigative officer before he could offer his reply to Indrani's bail request.

That didn’t sit well with Judge Jagdale who said Chaladan was "an officer of the court" and did not need to hear from the IO or his stand-in to file a reply and he issued an order stating: "The SPP for CBI Mr Manoj Chaladan has submitted to the court that every time the holding IO is filing the reply to the bail application through public prosecutor. Unless and until the holding IO files his reply to the bail application, the prosecutor cannot forward the said reply..."

"Since the bail application is required to be decided as early as possible, the CBI has to file the reply on or before 21st January 2020. It is also important to note that, the SPP is the law officer and he has to answer the legal points raised by the accused."

After the hearing Indrani sat outside with her lawyers discussing perhaps her bail application and the merits of Dr Gupta's testimony. She seemed excited by a few of the contradictory statements he had made.

She hauled her lawyer Sudeep Ratnamberdutt Pasbola to a tiny corner and was whispering a range of instructions to him.

As if the drama inside the courtroom was not enough, Indrani always steps it up several notches, providing, without fail, to everyone's bemusement, her own additional Brand Indrani drama -- a television show/soap opera all by herself -- at each hearing, via her theatrical actions and exaggerated emotions, never failing to turn heads in these corridors.

An unstoppable character is Indrani Mukerjea.

Vaihayasi Pande Daniel covers the Sheena Bora Murder Trial for Rediff.com. You can read her fascinating coverage here.