Talwar case a serious miscarriage of justice: Rebecca John

With the Allahabad High Court acquitting Rajesh and Nupur Talwar of the charges of murdering their daughter Aarushi and house help Hemraj, the Talwars’ rough nine years seem to have come to an end. Aarushi, 14, was found dead in her bedroom in Noida’s Jalvayu Vihar in May 2008. The Talwars were convicted in 2013 by a special CBI court on the basis of circumstantial evidence, and sentenced to life terms in prison. Newslaundry spoke to the Talwars’ advocate Rebecca John about the case, the HC verdict and the Talwars.

The media has called this the Aarushi murder case. While on that night, Hemraj was also killed. What does it mean for a country, especially the media to almost forget that this was a double murder?

It means that we are a country obsessed with the rich and the powerful. We just don’t care about certain classes of people but when it comes to one of us, we have very complicated reactions. It is a country which very easily forgets, a country which doesn’t value human life unless it is one of us.

You’ve been a close friend of the Talwars.

No, I’m not. I don’t know where this has come from. They were my clients and I don’t know them socially at all. I saw them for the first time when they walked through the doors of my office.

How did you get involved in the case?

I actually hadn’t followed their case as much as the rest of the country had. But I remember listening to that infamous press statement given by IG (Ghaziabad) Gurdarshan Singh with a fair degree of horror because it was so out of line. This man didn’t even know Aarushi’s name. He called her three different things at three different points and had already constructed an accused without any evidence. That day, I realised this case was going to be terrible for the parents. I got directly involved after Rajesh was released from custody the first time on July 11, 2008. They met me a month or two after that.

Did things change when the second CBI team began investigating the case?

The change of team brought them to their knees. Unlike the first team, this team was talking down to them a lot. It was a very confusing process for them because they were constantly being summoned and questioned. During questioning, they would find out about the evidence that the police were gathering. Whatever information they were getting was during this confrontation where they were being questioned. Slowly, they began realising what was happening. Within a couple of months, I also figured out that it wasn’t a typical rough investigation and there is something more to it.

Also, we easily understood the kind of cultural disconnect there was between the second CBI team and us. They were looking at mails, messages that Aarushi had written to Rajesh. They couldn’t understand why a child who stays in the same house wrote an email to her parents, they couldn’t understand something she’d written about a sleepover. AGL Kaul, the then Investigating Officer (IO), who passed away in 2014, kept saying “sleepover, sleepover” and gave it some bizarre sexual connotation.

What was Nupur like?  She received a lot of attention after her NDTV interview. People accused her of being cold-hearted and questioned why she wasn’t crying.

Nupur is not the sort of woman who takes rubbish. She’s a very strong woman, or at least she used to be. I think she is less strong now. Her whole position was: “I haven’t done anything wrong. It is I who has been wronged so don’t talk to me like this.” She wasn’t going to stand any nonsense from anyone, not even the CBI. And I think the team hated her for that.

Especially coming from a woman?

Yes, absolutely. And between the two of them, she is the more outspoken one. I can imagine her looking Kaul in the eye and saying, “You’re talking crap and this is not what my daughter did. Kids Aarushi’s age had sleepovers and if you don’t understand it properly then it’s your job to find out.” And this is interesting because, in this very male world of investigating, they don’t like a woman who talks back. Nupur was chatting back, and I can tell you, they hated her with such a vengeance. I have overheard some of the comments they made during some of these Supreme Court hearings…

I actually have a lot of respect for Nupur. There was also this one incident, on January 25, 2011. Rajesh was attacked after we stepped out of the special CBI court premise, and Nupur and I were standing upstairs. We saw it happening. People keep saying she doesn’t react because she really just doesn’t. Even then, she had a stoic expression while I was more hysterical than her. I started telling her Rajesh is getting attacked but her mind had already raced ahead. She was thinking of hospitals, ambulance, media and all of that. I remember a colleague of mine saying that now the media will come and ask why she’s not crying. But Nupur is just like that! How do you decide that we must all behave in the same way and have the same kind of responses?

Again, is this demand to respond in a certain way more with women?

Yes, especially with women. And because they didn’t fit into some constructed idea of a distraught couple, particularly Nupur, they were very burdened by it. She was very weighed down by it. There were times when she used to be enraged and tell me “It’s my daughter. I am the one who lost her. Who the hell is anyone to tell me how to react?”

When did the ‘wife-swapping’ theory begin?

It was there from the beginning. It was a completely bizarre theory. They were so frightened and confused when they came to me after hearing this.

Even for a moment if we were to assume they did engage in wife swapping, was it going to influence the case?

See, after a point, it became irrelevant what was affecting the trial and what wasn’t. We weren’t fighting the case we were supposed to fight. We were fighting a war against perception.

2008, 2009 and 2010 were a horrific phase for them. People were lapping up all these baseless allegations. It was a very difficult time to be their counsel. In my 30 years of practice, I have never felt the heat of a case so much. It became a ritual for me to wake up to Nupur calling me to ask me if I saw the front page of HT because they would have figured out some new theory.

Very soon, we realised that we were horribly losing the battle against perception.

What happened once the closure report was filed in 2010?

Suddenly in December 2010, the Talwars called me and said that some news channel had told them that the CBI had filed a closure report. Frankly, when I heard this news I was relieved. I thought it was finally over. But then they were still asking, “Par Aarushi ka kya hoga? (But what about Aarushi?)”

Two-three days later, friends in the media told me that it was a really damaging report. When we finally got a copy of it, I said, “This is not a closure, this is a charge-sheet.” When the closure report is filed, the court has three options: 1) they can summon the accused straight away 2) they can close the case 3) they can order further investigation. I was sure the case wasn’t going to get closed with this report.

The case was closed because senior officers had said that there isn’t enough prosecutable evidence so it must be closed. But this second CBI team headed by Kaul was very keen to prosecute the parents. In their minds, they were convinced that they were the murderers. So while they drafted a closure report, they filed the most damning report and they put in every dirty detail. We immediately figured out that this was going to be a fight. That closure report was the filthiest report I’d seen.

Why was the second CBI team so adamant on prosecuting the Talwars?

It was a lot of little things, like Nupur talking back, cultural differences. And maybe Kaul actually believed in his version of the story. Also, when you have this kind of public attention it results in lazy investigation. The investigator feels that there’s no need to crack the case because somebody else is doing the job.

Did the Talwars ever want to give up out of hopelessness?

Over a period of time, I could see their exhaustion set in but not fighting was never an option for them. Between the two, if Rajesh didn’t have Nupur, it would have been very tough. She was definitely the stronger one. For them, Aarushi was being defamed through this entire process and they didn’t want to give up.

Did they lose friends and client during this process?

Not clients but friends yes. Ever since that night, they’ve lived a very isolated life.

You contested the theory that medical weapons were used to kill Aarushi and Hemraj.

These were such unbelievable baseless theories that the second CBI team came up with. There was also the golf club theory. They said that the parents had surgically killed the two of them, first with a sharp instrument and then a blunt instrument. The first CBI team and I had said that the murder weapon was actually a khukri, a khukri has a blunt side and a sharp side. And a blood-stained khukri was recovered.

What about the whiskey bottle?

The bottle did not have Rajesh’s fingerprints. It only had bloodstains of both Hemraj and Aarushi. If these pieces of evidence were protected, seized, sealed and sent for examination without everyone touching it like in the first few days, we might have been able to discern who did it. So what it looks like to me is that the Talwars are being blamed for institutional failure, for the sloppiness of investigation agencies. I feel that as soon as the crime was discovered, the police should have sealed the crime scene. You cannot allow people to continue to live in a place where a dead body was found. But the police have to ensure this happens, this responsibility is not on the Talwars.

Hemraj’s body was also found only a day later.

They said that terrace door was not opened because the Talwars couldn’t find the key. Why didn’t they break open the door? The policeman who was there said, “Mein bhool gaya (I forgot).” That’s his explanation. Now that blame was also put on the Talwars saying they were trying to hide his body. How long were they going to hide the body? Isn’t that simply bizarre?

What do you think happened on the night of May 16, 2008?

The alternative theory stems from the fact that a purple colour pillowcase was recovered from Krishna’s room. On June 14, 2008, the day after Krishna was arrested a blood-stained khukri and a blood-stained pillowcase was recovered from his premises. The two items were sent to a forensic lab in Delhi and the lab confirmed that the khukri, as well as pillowcase, had human blood on them but they could not determine the DNA. For some inexplicable reason, the khukri was not sent but the pillow cover is sent to Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad. The CDFD gave their detailed report in November. We were able to access it only after Nupur and Rajesh are summoned. In the conclusions made by CDFD, a very crucial finding made was that the blood on the pillow cover matched Hemraj’s DNA. In this whole fairy tale, if there was one credible piece of information, it was this and nobody picked it up.

We pointed it out when we got these documents. The CBI immediately panicked and AGL Kaul himself goes to Hyderabad and suddenly starts claiming that there was a typographical error because of which Hemraj’s pillow cover (which was also sent) got interchanged with Krishna’s pillow cover. He expressed this to the CDFD Hyderabad in a letter not just questioning if there was an error but clearly telling them what the error was. He was leading them to say something he wanted them to. After receiving the letter, CDFC responded within 5 days saying that there are typographical errors in the given exhibits. And suddenly what was staggering evidence was immediately silenced and made inconsequential. Today’s judgment clearly states how Kaul wasn’t questioning the CDFD but was demanding that they endorse this.

Until today, the CDFD was never able to explain at what stage the error occurred because at every stage the exhibits are registered and coded.

This judgment has clearly pointed out that this exercise was taken up by Kaul along with the CDFD Hyderabad to remove from the record any evidence which was in consonance with the innocence of the appellants. This is fabrication of the highest order.

So what happens next because Rajesh and Nupur are released only on the basis of ‘benefit of doubt’? They still haven’t been proved innocent beyond reasonable doubt, have they?

This is again a nonsensical piece of information that has been floating around. Nobody is ever declared ‘innocent’ in our system. You’re either acquitted or there is a conviction.

In this case, every single allegation put forth by the prosecution has been condemned by the high court. The high court nowhere says that they’re giving the Talwars the ‘benefit of doubt’. This is false news that the media has been spreading. After giving the judgment, the second judge gave a four-page lecture to the trial court questioning them on the mess they’ve created. He also went on to say that this has all been a creation of a ‘fictional animation of events’. The judgment clearly says ‘not proved’ and at many instances even claims not believe the prosecution. This kind of false information is what happens when we debate on television these days.

How do you think the media has influenced this case?

I don’t question the right of the media to report or even report some cases more than others. It becomes problematic when the reporting is one-sided or the media becomes an agency which prints the handouts of investigating agencies. Unless the CBI had given them the story, there is no way that Hindustan Times could have carried that report in 2013 claiming that the killers wore gloves. This is a massive PR exercise. We have such unfailing faith in the investigating agency even when we know they’re rogues. I think it becomes very dangerous when there is a public trial like this, before an actual trial. Right now, we’re looking at a serious miscarriage of justice when you have this kind of unrelenting focus on a case. Somewhere, boundaries have to be drawn.

Do you think Indian media needs to be guided by a code of ethics?

Absolutely, there has to be some ethical lines for sure. This shows what an unequal battle it was. As a criminal defence lawyer, I don’t care who is innocent or not. For me, it is simply that every individual has the constitutional right to a fair trial. The media takes away this right when they make such a public drama of cases.

Actually, I even blame ordinary citizens who were so consumed by all this gossip surrounding this case. Nobody bothered to question it. The narratives simply got deeply embedded in ones’ subconscious mind.

And what do you think that reflects on our society?

It reflects poorly on us.  Unless one is in the situation that the Talwars have been in, you will not be able to understand the incalculable harm this case has done to civil liberties, to basic human rights. Because yesterday it was the Talwars, today it could any one of us.  It just takes one night for everything to spiral out of control and for everyone to turn their backs on you.

How does this change the way you see the legal system?

There has been a lot of disappointment because we weren’t given the relief that anybody else in our place would have got. Simply because it was the Talwar case, thanks to the media, the courts had shut their minds and their files. In the end, what have we got? A verdict which questions the CBI and a couple who’ve lost their child and a huge part of their life.

Have you seen them change as a couple through this process?

Yes, they’ve become quieter people.

Was prison harsh to them?

Yes, of course, prison was brutal. But I do know that they didn’t face any physical violence. They set up dental clinics in the prison and worked almost all the time.

This is such a complex case and given that cinema is such a huge influencer, do you think the movie Talvar should have been made?

In a fair world, while the appeal is still in due process, the movie should not have been made. Simply because it could have prejudiced people about the case.

Are you now looking forward to meeting them?

Yes, absolutely. But more than anything, I hope they just go home and have some quiet time unto themselves. I hope they don’t meet anyone, not even me until they’re really ready to. Rajesh hasn’t had a break for four years. I hope they get to grieve for Aarushi, sleep in their own beds and sit with their family. With me, they still have a formal relationship. If I were their friend, I couldn’t have fought this battle for them.

But now would you become friends with them?

Nothing stops me. As a woman, I admire Nupur immensely.