Sheena Bora Trial: Were the driver's call records tampered with?

'Could the Khar police and the CBI have tinkered with the driver's call data records?'
'And did their fiddling with the information not make it that they were tampering with the lives of people that were in the balance as a result of this case?'
Vaihayasi Pande Daniel reports from the Sheena Bora murder trial.
Illustration: Uttam Ghosh/Rediff.com

The moon was a crescent in the sky on that dark monsoon night.

A middle-aged man, carrying a plastic bag, that said Mamta Tailors on it, was walking swiftly along the ocean promenade at Carter Road, Khar, north west Mumbai, at about 9 pm.

In his pocket, or maybe in his hand, was a silver/white cellphone and Rs 100. He was probably slightly out of breath, or even sweating, given that he had been walking about 40 minutes or much more, all the way from Santa Cruz East, north west Mumbai.

By the side of the road were clumps of water-logged shrubs, perhaps mangroves. The moustachioed man was headed to this jhar (greenery) to dump his plastic bag.

Before he could do so, a white Mumbai police Tata Sumo rolled down the road near him.

The jeep scared the man. He took off running.

The police, suspicious of a man racing away, came after him and nabbed him.

When they opened the Mamta Tailors bag they found a country-made weapon or katta and cartridges inside it.

The man was arrested August 21, 2015 for possession of a weapon without a license and taken to the Khar police station.

After a few days of cross questioning it emerged that the weapon had been given to him and he was trying to dispose of it.

It also was revealed, to the police's surprise, that the man had helped murder a young woman in 2012.

The moon was not even a crescent in the sky on that dark monsoon night.

The man, who once had a Mamta Tailors plastic bag and a silver/white cellphone, was already at the Khar police station, helping them crack a case.

He had been missing from his home in Mosambi Tabela, Santa Cruz East, since about August 16, 2015, lured to the police station, and taken into protective custody.

This happened shortly after the Khar police learned -- in some mysterious, yet undisclosed manner -- that a young woman had been murdered three years earlier and the man knew something about it.

The first is the prosecution's version of how the Sheena Bora murder came to light in 2015.

The second is the defence's take on how the trial for Sheena Bora's murder in 2015 came about.

For many months now, right from July 2017, CBI Special Courtroom 51 at the Mumbai city civil and sessions court, Kala Ghoda, south Mumbai, has been hearing evidence, and through the defence's cross-examination, getting to know further information from Peter and Indrani Mukerjea's former driver Shyamvar Pinturam 'Suryavanshi' Rai on how he was arrested.

And how he ended up telling the Khar police about his role in Sheena Bora's murder.

With each telling of his tale, through six months of 2017, new details were uncovered that often didn't ring true.

Like Rai did not remember which road he used to cross over from the eastern suburbs to the western suburbs that fateful monsoon night.

Or which way he was walking on Carter Road and in which direction the police jeep came.

He did not remember if the cellphone confiscated by the police that night was white or silver.

He could not recall the exact nature of the greenery where he planned to throw the bag and why he had not chosen similar greenery located adjacent to his home.

Though he may have passed several police vans along the way, that night in 2015, while carrying a plastic bag containing a country-made revolver and cartridges, he did not recall why the Khar police station's Tata Sumo made him run.

The defence, based on Rai's confused set of facts, and from the information gleaned from his call data records, has since early December been putting forth their theory: That Rai was never actually arrested.

And that his Carter Road walk, past the mangroves, never occurred, nor did he ever have a katta and its cartridges in his possession.

The entire tale was a figment of his imagination.

The defence has continued to mount their version of the facts.

They alleged that Rai turned himself into the police station five days before August 21 and had, for reasons yet unknown, joined forces with the police and the CBI to frame a case against the Mukerjeas and Sanjeev Khanna, Indrani's former husband.

Till date they have had not much to back up their claim, apart from showing up how tattered Rai's memory was.

On Friday, the well-regarded Shrikant Shivade, Peter's lawyer, arguing an application that he had put before CBI Special Judge Jayendra Chandrasen Jagdale about tampered call data records last week, offered suggestions on one of the methods, he alleged, that was used, by the Khar police or the CBI, to paper over Rai's pre-'arrest' visit to the Khar police station.

Shivade told the court, angrily, that it was quite easy for the prosecution to have hidden evidence of Rai's movements just prior to arrest.

The lawyer charged that the call data records of the cellphone Rai was using at the time of his arrest, released to the defence by the prosecution, was allegedly manipulated and whole columns of information were missing.

Before levelling his accusations, the advocate took care, as is his method, to lay out details of judgments in earlier cases on how call data records are to be handled fairly.

Shivade reminded the court about the circumstances in which the CDRs for Rai's 2015 cell phone were released.

The nodal officer for Airtel, the company from which Rai had his last SIM (subscriber identification module), first said they did not have records beyond a year though the lawyer pointed out that the Government of India's Department of Telecommunications insists on records being maintained for seven years.

The nodal officer then procrastinated further, saying he would need to check and finally only after the court ordered him to produce the records, did he get cracking.

Even after continuous pressure from the court -- with the cross-examination of Rai being halted as it waited for the Airtel records -- it took Airtel's nodal officer over a month to spit up the CDRs, as delays were cited at every turn.

Said Shivade: "Why they didn't give the data for 65 days? They knew it was fictitious data!"

Shivade alleged that Airtel did not attach a '65B' certificate of verification with it and provided a soft copy of the records in which the records had been downloaded into excel sheets.

Peter's lawyer said if you loaded these CDRs onto any laptop, the first thing one noticed was that the excel sheets had its enable edit button activated.

Secondly some columns of information had been deleted.

The other serious issue Shivade's application raised was about the IMEI (International Mobile Equipment Identity) of the handset Rai was carrying on the night of his arrest.

The 15- or 17-digit global IMEI code uniquely identifies a cellphone and can be utilised to block a cellphone from use if it has been stolen.

But Shivade explained technology has allowed thieves and scamsters to illegally use software to alter the IMEI code of a stolen phone. He said the police -- and definitely the Khar police -- was aware of that.

It so happened that IMEI number cited for Shyamvar Rai's phone was incorrect and the prosecution in their reply to Shivade's application even admitted that IMEI number was wrongly quoted.

Bit by bit Shivade's ire visibly built up, before the judge.

The lawyer, referring to the IMEI number in the original statement from the Khar police station, said, "None of this tallies. The number here is totally different. This is a bogus number! Something, somewhere, by someone, has been fabricated!"

Shivade was finally apoplectic and, in his anger, at his finest.

Not even a paper moved (nearly) nor did the attention of the courtroom wander as he thundered on darkly: "It is fictitious, which they have admitted. You want to give me data which is fictitious... and have an unfair advantage over me?!"

Seething with indignant fury, he examined the motives for having received tampered CDRs, the wrong IMEI number and the wrong physical description for Rai's 2015 cellphone.

He alleged that the Khar police station, the CBI and the nodal officer were aware of this fact, because they would have been the first parties to work with the call data records.

He wondered why such "talented officers" could make such mistakes and wondered why they had not done their "duty."

Knowing they were tampered, what led the Khar police or the CBI to continue to use the records?

Could it be, Shivade alleged, that they were the ones who tinkered with this information in the first place?

And did their fiddling with the information not make it that they were tampering with the lives of people that were in the balance as a result of this case?

"Why this is important? Because Rai was taken into custody a few days before?! The arrest is a sham. What are the checks (in place guaranteeing the information) on the CDRs of Shyamvar Rai?"

"Enable editing is on (on the soft copy). Click that and you can delete the entire data. If the police had made calls to Shyamvar Rai it is deleted."

"The arrest of Shyamvar Rai is the most important part of the case! They must have the copies of the CDRs with them. If so, this CDR is not the CDR the court has ordered."

Shivade went onto explain that by this action, those guilty for the action, have not respected the court.

In a ringing voice, steeped with righteousness, Shivade heaped accusation upon accusation on the Airtel nodal officer, the CBI and the Khar police station, whose representative Inspector Ganesh Dalvi was sitting there, since he was the next witness up for the stand.

"The nodal officer should be hanged," Shivade declared.

CBI Special Prosecutor Bharat Badami objected to this and Shivade backed down, humouring him, saying he had said this in a manner of speaking.

The lawyer was equally irate with the reply he received from the prosecution -- from K K Singh, the CBI investigating officer -- for his application.

The CBI in its reply said there could be, what Shivade termed, "parity errors" while retrieving CDRs more than a year old, since generally records are not kept beyond one year and these records were three years old.

Shivade: "This is a shameless explanation. It is not to be tolerated by the court. This is a serious case. Someone can be sentenced to death or to a whole life in prison. Lives are hanging by a slender thread!"

Badami and K K Singh, who were sitting at the lawyers' bench, exchanged glances with each other several times during the proceedings as Shivade spoke. But neither did they nor Dalvi look particularly perturbed, although Badami grumbled from time to time under his breath.

Judge Jagdale listened to Shivade gravely, carefully following his arguments, a solemn expression fixed on his face throughout.

When Shivade sat down, Indrani's defence lawyer Sudeep Pasbola sprung up and also took on the CBI for their alleged wrongdoing, not in his usual fiery way.

Instead, Pasbola's tone was less angry but more moralistic, as in a quiet, sombre, voice he went on about "deliberate suppression" and how "wool had been pulled over the eyes of the court" and a "mockery" had been made of the system and for the need to punish those responsible.

He reminded Judge Jagdale of all the excuses the Airtel nodal officer has given for the delay in producing the CDRs -- "pretexts like son is sick" -- when in reality Pasbola alleged the information was being cooked up.

Both Shivade and Pasbola asked for two things: The appointment of an expert to look at the CDR issue and that Rai's last handset be summoned to the court.

Further, Shivade requested the logbook for the Khar police station's Tata Sumo that nabbed Rai in 2015 and for the CDRs of Dalvi and Dinesh Kadam, the investigating officer of the Sheena Bora murder case at the Khar police station.

Badami, in response, mumbled that he wondered why the defence was not interested in his CDRs.

"Ask for my CDRs also," he said, provoking the first round of laughter on Friday afternoon. Judge Jagdale laughed heartily too in an otherwise solemn day's proceedings.

Finally, at the end Badami got up to defend the prosecution, saying that the defence had no business "tarnishing the name of the CBI" and said it was only reasonable that they first checked with the Airtel nodal officer about these allegations.

"It was his duty. Not the CBI's duty."

Pasbola turned to Badami and asked roundly, "Can anyone take the court for a ride?!"

Badami suggested that Rai's confusion over the colour of the phone was understandable because, being a virtually unlettered man Rai, could not distinguish between silver and white, which had the entire bench of defence lawyers tittering.

He embarked on his now oft-repeated line about the issue not being about seeking justice only for Peter Mukerjea, but that it was about seeking justice for the late Sheena Bora first of all.

In the accused enclosure, Peter, wearing, for a change his white Chinese-style shirt-jacket and chinos, listened with rapt attention to Shivade and Pasbola's arguments and Badami's replies, wrinkling up his face in puzzlement when Badami explained his stance. Sanjeev was also all ears.

Indrani, wearing a white shirt with brown leggings, was rather preoccupied, sitting hunched in her corner, head bent, writing and reading something throughout the arguments.

Judge Jagdale was in a stern mood on Friday. Sensing many additional delays as a result of this new development, he wanted action quickly.

He ordered that the Airtel nodal officer to appear in court on Saturday and was not amenable to excuses.

He also wanted the next witness, Dalvi's testimony to start as soon as possible.

When told that Inspector Dalvi would be busy with Republic Day security from January 23 to January 24 onwards, Judge Jagdale said he didn't care and that: "This is a trial!"

Badami continued to say that January 23 as the next court date was not possible. The judge said firmly, "Then you file an extension" on January 23.

After exiting the courtroom Badami chatted with the defence lawyers, Singh, Khanna and journalists.

Referring to Shivade's arguments, he said, "They threw a brick and we threw some stones back."

The CBI prosecutor, who was on his cellphone trying to locate the Airtel nodal officer to ask him to come to court on Saturday, also spoke to Sanjeev's lawyer.

He praised a mildly bemused Shreyansh Mithare for not giving him any trouble in the court and that all his troubles came from the "big shots."

From the "King and Queen."

Postscript: According to the Khar police station chargesheet, the Mukerjeas' driver was arrested at 5.20 pm, August 21, 2015. But Rai has told the court, twice, that he left his home in Santa Cruz East in the afternoon, and took between two and four hours to walk to Khar, which indicates, that as per his information, he might have been arrested later too, ie after dark.

• MUST READ: THE SHEENA BORA MURDER TRIAL