The Talwars and presumed guilt

BY SHOHINI GHOSH| IN Media Practice | 06/11/2013
In the Aarushi Talwar murder case, the electronic media scaled new heights of irresponsibility by spreading canards and defamatory stories.
In show after show, article after article, the Talwars have been demonised, writes SHOHINI GHOSH. PIX: Nupur and Rajesh Talwar

In 1985, Arnold Freidman, a talented and award-winning computer teacher is arrested when a shipment of child-porn is intercepted by the police as it is being delivered to his house. The arrest turns the life of Arnold, his wife and three sons into a nightmare. Assuming that reading of child porn was ‘evidence’ of child sexual abuse, Arnold and his teenage son Jesse are charged with multiple counts of sodomy. The meltdown of the Freidman family – Arnold kills himself in prison while Jesse spends 13 years serving his sentence – is the subject of Andrew Jarecki’s masterful documentary Capturing the Friedmans (2003). Without declaring Arnold innocent or guilty, Jarecki uncovers the paranoia, moral panic and hysteria that surrounded the case as inhabitants of Great Neck the affluent suburbia of New Jersey launched a witch-hunt. The police ‘produce’ evidence, unreliable testimonies and outlandish stories. The media declares the Friedmans guilty the day they are arrested. Parents, who would send their children to Arnold for computer lessons, mutate into a lynch-mob and savagely attack Arnold and Jesse within the court premises. The judge, whose job it is to remain impartial, declares on camera that she knew Arnold was guilty the moment she saw him. The verdict was out even before the trial had begun. Shot almost two decades after Arnold Freidman was arrested, the documentary shows how moral panic and mob hysteria evacuated from the trial the most critical of juridical principles; the idea of  reasonable doubt. Jarecki says the film is a request to audiences to open their minds to the possibility that the Freidmans may have been unfairly convicted. Every year, I show this skilfully made, densely-layered and thought-provoking documentary to my students. The post-screening discussion is inevitably haunted by the spectre of the Aarushi–Hemraj murder case as the parallels are unmistakable. 

The media glare on the Aarushi Talwar murder case has been intense but can we say that the public is any wiser because of that? The murder had no witnesses, yet everyone assumes they know what happened. So convinced are some about the guilt of the parents that they see the trial as not a judicial examination of evidence to determine the facts but a legal formality that must necessarily culminate in conviction. This seems to have worked in favour of the prosecution who are demanding ‘speedy justice’ even though the evidence it has produced so far fails to hold up to scrutiny. Take for instance, their reconstruction of the crime. Rajesh Talwar saw Hemraj and his daughter “in a compromising position” and “under grave and sudden provocation” killed them after which, with the help of his wife, he “dressed up the scene of crime”. But page 29 of the CBI’s own closure report states that there is no evidence of Hemraj’s blood anywhere in Aarushi’s room. So if Hemraj was killed in Aarushi’s room, what happened to the blood? And if he was not killed in Aarushi’s room, what happens to the ‘motive’ of “grave and sudden provocation? The prosecution claims that having killed Hemraj in Aarushi’s room the Talwars dragged the bludgeoned and blood-soaked body up the staircase (which happens to be outside the apartment and not inside as some reports have insisted) then came down and “dressed the scene of crime.” This implies that they washed the trail of blood on the stairs, wiped their finger-prints off everything they touched, discarded their clothes soaked in Hemraj’s blood (which  means they left the house and came back), locked themselves in (since the next morning, the maid found the door locked from the outside) and sat waiting to be discovered. The prosecution explains the missing blood of Hemraj by alleging that the Talwars “dressed-up” the scene of crime. This would imply that the Talwars accomplished the impossible task of mopping up Hemraj’s blood while leaving Aarushi’s intact! (The Defence had good reason to ask whether the colour of Hemraj’s blood was blue for it to have been selectively cleaned!) Now, if the Talwars have indeed demonstrated such expertise, skill and pre-mediation as assumed by the prosecution then they must surely be experienced, cold-blooded killers who under the guise of dentistry, have perfected the art of killing. In which case, the motive of “grave and sudden provocation” comes crashing down. Because if this ‘motive’ has to be established, Hemraj’s blood must surely be found in Aarushi’s room. If not, we must ask, who killed Hemraj on the terrace and why? 

In a case that has no eye-witnesses and only circumstantial evidence, the prosecution’s case must be definite, clear and unambiguous. Every link in the chain of evidence must lead to only one conclusion. If we look at the evidence that the prosecution has produced so far, we have good reason to doubt whether the guilt of the accused has been proved beyond reasonable doubt. Why has this not been brought to the attention of the public? For reasons that elide easy answers, large sections of the media (and public) have identified so completely with the filicidal narrative that a consideration of other possibilities was long foreclosed. This narrative was first floated by Inspector General of Police (Meerut) Gurudarshan Singh, who had ‘solved’ the case even before investigations could begin. In a widely publicised press conference he declared that Rajesh, who was as “characterless as his daughter” had committed the murders after discovering Aarushi and Hemraj in “an objectionable but not compromising position”. Singh was transferred for his defamatory utterances but his ‘story’ gathered momentum across the media. On May 25, 2008, Zee News telecast a show called Crime File where anchor Manoj Raghuvanshi doubling as mind-reader authoritatively claimed that Aarushi had sought comfort in an affair with Hemraj because her father was having an extra-marital affair. The lurid story was accompanied by graphic fictional reconstructions. A lack of ethics has distinguished Zee News. In December 2003, the channel telecast a ‘docu-drama’ on the Parliament Attack case depicting the then prime suspect SAR Geelani as the mastermind. As is now well known, none of the charges could be proved and Geelani was acquitted by the Delhi High Court and Supreme Court. Zee News did not express any regret or tender an apology. 

But in the Aarushi Talwar murder case, the electronic media has been uniformly guilty. They scaled new heights of irresponsibility by confounding speculation and facts, spreading canards and defamatory stories. In show after show, article after article, the Talwars were demonised as decadent, immoral, unfeeling, unrepentant, scheming and resourceful.  Therefore, when a deranged vigilante within the court premises assaulted Rajesh Talwar with a meat cleaver inflicting serious injuries, bloggers applauded. Columnist Shobha De endorsed the attack with a cavalier “Tough-luck Talwar”. De had long declared the couple guilty because they did not conform to her idea of grieving parents. Under the relentless, unblinking gaze of the media, grieving was a luxury the Talwars could not afford. But a horror story lay as much on the other side because the seemingly ‘normal’ custodians of morality and decency had morphed into an amorphous lynch-mob for whom ‘justice for Aarushi’ was beginning to mean ‘punish the parents.’ 

An atmosphere of prejudice is always an excellent smokescreen for manoeuvre and this seems to have worked perfectly for the investigating authorities. The complex history of the case with its many twists and turns added to the confusion. Two CBI teams have investigated the case and their findings are completely contrary. The 1st CBI team that took charge on June 1, 2008 found no evidence to charge Rajesh Talwar but enough to name Hemraj’s friends Krishna Thadarai, Raj Kumar and Vijay Mandal as the prime suspects. When in September 2009 for reasons not made public, the 1st CBI team was replaced by a 2nd team led by AGN Kaul, the findings were turned upside-down. Kaul assigned MS Dahiya of the Directorate of Forensic Sciences, Gandhinagar to generate a new crime-scene report. Within two weeks Dahiya had produced a reconstruction that revived the dad-killed-daughter theory. The ‘resurrection’ was not based on the discovery of new ‘evidence’ but on inferences made by Dahiya when he looked at photographs of the scene of crime! Such plot turnarounds notwithstanding, the CBI could not produce any evidence to chargesheet the Talwars. This fact is explicitly stated in the closure report submitted by the CBI in December 2010. 

The CBI closure report abounds in contradictions and unsubstantiated charges but weaves a subtextual narrative implicating the Talwars. What makes this report particularly intriguing is its refusal to even consider the possibility of outsiders being involved. Ignoring all evidence to the contrary- like the disclosures made by the suspects and major deception revealed in lie detector tests, brain-mapping and narco-analysis – the report absolves the prime suspects of the 1st team on the basis of what appears to be casual generalisations like “no intruder would bother to dress the scene of crime” and “no intruder would hide the body of the victim” and so on.  In response to this inconclusive report, the Talwars filed a protest petition requesting further investigation. The magistrate of the Ghaziabad court rejected the petition and charged the Talwars with murder and destruction of evidence. Nupur Talwar who was never an accused was now named as one. 

Failing to produce “sufficient evidence” or a “clear-cut motive” for murder, the closure report left a trail of damaging insinuations. But when the case went to trial the CBI was left with the daunting task of turning insinuation into evidence. Here it would seem that friends in the press came handy. Evidence that could not be recovered from the scene of crime was made to materialise in the pages of newspapers. On March 3, 2011, the front-page of The Hindustan Times carried the headline: “CBI says Killer Wore Gloves”.  The “HT Exclusive” by Abhishekh Saran reports that the CBI “suspects that the killer had used gloves to avoid leaving finger prints at the crime scene” and that “the finding that the killer wore gloves can help the CBI unravel the mystery over the mismatch between the smudges and bloodstains on the whiskey bottle and fingerprints of the Talwars” but that the “CBI has not found the gloves yet.” Had this not involved the lives and reputation of real people, we could have laughed. How does something that has not been found – and whose very existence is a mere speculation – be called a “finding”? Second, why was the role of gloves not even mentioned in the closure report? Third, there was no mystery about the “mismatch” between the bloodstains on the whiskey bottle and the fingerprints of the Talwars because the report of the Finger Print Division of CFSL, New Delhi, had categorically stated that the fingerprints on the whiskey bottle did not match that of Rajesh and Nupur Talwar! 

The collaboration between the investigating authorities and sections of the press seemed to continue through the trial. News reports would mysteriously appear on the morning of the hearings, anticipating the day’s proceedings. On April 24, 2011 the Times of India carried the sensational headline: “Only Parents Could Have Killed Aarushi” going by which the readers could be forgiven for thinking that the courts had already delivered their verdict. The headline was merely reiterating the long-held position of the prosecution. The rest of the ‘report’ provided a preview to the contents of the counter-affidavit that the CBI would present in court that day. Reporter Dhananjay Mahapatra, confusing perhaps the role of the journalist with that of the judge, certified the document to be “precise and damning for the couple”.  On October 6, 2013, the name of the same journalist appeared in the by-line of another ‘report’ that reproduced the CBI’s oft-repeated chant that the Talwars were indulging in “delaying tactics.” This arrangement is useful for all: the CBI gets to air its views as news while the journalist is spared the trouble of going all the way to Ghaziabad to figure what’s happening in the courtroom. 

With the support (inadvertent or otherwise) of unquestioning media professionals,  the shape-shifting of the prosecution’s case continued unabated. Dr Sunil Dohre who had conducted the post-mortem on Aarushi’s body and had certified on the form NAD (‘Nothing Abnormal Detected’), produced during the course of the trial, a brand new testimony. He suddenly remembered that her vaginal orifice was “unduly large” and that her “ruptured” hymen had an “old tear”. Neither the courts nor the media asked Dohre why these observations had not been written in his post-mortem report or why they were not recorded in his official statement annexed to the closure report. Just as Dohre’s chameleonic testimony went unreported so did the bizarre observations of Dr. Naresh Raj who conducted the autopsy on Hemraj’s body. During the trial, Raj testified that the “swollen penis” on the cadaver was proof that Hemraj was either having sex or preparing for it. Medical science explains that a body exposed to extreme heat would putrefy and swell-up. The doctor stuck to his “preparing-to-have-sex’ theory by claiming that his conclusion was based, not on “scientific authority” but his own experience as a married man! 

Just as the ‘motive’ of “grave and sudden provocation” appears to be tottering on shaky ground so does the theory of the ‘murder weapon’. Aarushi had suffered a hard blow on the head before her throat had been slit. The UP Police had suggested the possibility of a hammer and knife. During the investigation of the 1st CBI team, a bloodstained kukri (a sharp knife with a blunt handle) and a purple pillow case was recovered from the room of prime-suspect Krishna, who worked as a compounder for the Talwars. For reasons best known to the investigators, the kukri was not sent for superior DNA testing while the purple pillow case was. When the 2nd CBI team took over, the weapons of offence mutated into a golf-club (Rajesh was an occasional golfer) and a scalpel (Rajesh is a dentist!) One golf-club, the CBI claimed, looked suspiciously like the culprit as it was shinier than the rest having presumably been subject to a vigorous clean-up! Dr Sudhir Gupta of AIIMs had been quick to shoot down the scalpel theory by observing that an instrument designed to cut the skin layer by layer could not have caused the deep wound on Aarushi’s neck. The scalpel did not merit any ‘recovering’ given perhaps its ubiquity in the life of a dentist. The new murder weapons had been ‘found’ by Dr. Dahiya, perhaps for the first time in the history of criminal investigation, by staring at photographs. 

While fabrications circulated freely, certain facts never made it to the headlines. Particularly scandalous has been the suppression of information about the most crucial piece of evidence in the case: the purple pillow cover recovered from Krishna’s room on which, according to the report of the Centre for DNA Fingerprinting and Diagnostics (CDFD) in Hyderabad, was found the blood and DNA of Hemraj. The pillow case and the kukri had been seized from Krishna’s room on June 14, 2008 and sent to CFSL, New Delhi. The pillow-case was then sent to CDFD for advanced DNA testing. That Hemraj’s DNA was found on Krishna’s pillowcase was never mentioned in the closure report. But when the relevant documents were handed to the Talwars they made this explosive finding a part of their legal challenge. When asked why the CBI had not taken cognisance of this, Kaul dismissed the finding as a “typographical error”. The experts of CDFD he claimed had confused Hemraj’s pillow with Krishna’s!  This explanation seems disingenuous as the “purple pillow case” is identified by both name and exhibit number (Z20) whenever it is mentioned in the report. Ten days later, Kaul would write to the CDFD and ask whether there was a “typographical error” in describing the “purple pillow case.”  In response to this leading question the CDFD replied that there was a “typographical error” as “suggested”.  During the trial, SPR Prasad of CDFD said that the “typographical error” had gone unnoticed for over two years since the report was submitted and a clarification was issued only after the CBI had “suggested” it. He could not explain why such a major error had occurred. The question remains, how did Kaul know it was a “typographical error” even before confirming it with the CDFD? The courts will have to decide whether this constitutes malafide intent, divine revelation or clairvoyance.               

The presumption of innocence before proven guilty is a cardinal principle of the criminal justice system. For this reason, the onus of establishing guilt by eliminating doubt is the obligation of the prosecution. In this case ironically, more doubts have been raised than eliminated. But in the eyes of the public, it is the Talwars who are dubious. During the course of the trial, the Talwars have repeatedly requested for certain kinds of evidence to be placed on record which the courts have repeatedly refused. They petitioned to have certain witnesses depose during the trial but that too was turned down even though this included Uttar Pradesh Additional Director General (Law and Order) Arun Kumar who headed the first team of CBI investigators. The appeals of the Talwars have never been in excess of standard legal procedure but the media has been quick to condemn their attempts as “delaying tactics”. In their eagerness to see the Talwars punished, the media like the prosecution has pushed for speed over due process setting dangerous precedents for the future. There will be a heavy price to pay because the principles of the rule of law and procedural justice are closely linked with the protection of human rights. I do not know the Talwars personally but have followed the case closely. This case, I believe, is momentous precisely for its seeming innocuousness (lacking for instance an overt political motivation) and because the explanations for the witch-hunt lie not in the realm of the political but the dark and seamy recesses of the social. No matter how secure we may feel from our present vantage point, the predicament of the Talwars can visit any one of us. For no fault of ours, we could be caught in a vortex of malevolence as the combined force of failing institutions and a sensation-driven media bear down on us. And before we know it our lives and rights as citizens can be crushed by the new lynch-mob that masquerades as the “collective conscience of society”. The Aarushi-Hemraj murder case is not about the Talwars but about each and every one of us. 

 

Shohini Ghosh is Sajjad Zaheer Professor at the AJK Mass Communication Research Centre, Jamia Millia Islamia, New Delhi.  

Disclaimer: The editor of the Hoot is distantly related to Rebecca John.

Related links:

All but lynched by the media 

Here we are now, entertain us 

A case of curious contradictions

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