GUEST COLUMN: Talwars and trial by CBI through media

talwars-rajesh-nupur Benefit of doubt, not one but many, saved the parents of Aarushi who were found guilty by Special Court in 2013 after CBI linked 26 circumstances to weave the crime story

The Aarushi-Hemraj murder case assumed notoriety for contradictory investigations, character assassinating leaks and ‘trial by media’, and the actual trial became “imagination to infinity rendering the whole exercise mockery of law”.

The CBI and police deny millions of RTI requests on the excuse that ‘investigation is pending’ but disclose bits and pieces facilitating media and people to infer as per their whims and fancies, unmindful of the reputation and privacy of accused or victims. What cannot be compensated is character assassination and incarceration faced by the Talwars.

Ultimately the benefit of doubt, not one but many, saved the parents of Aarushi who were found guilty by Special Court in 2013 after CBI linked 26 circumstances to weave the crime story. But the High Court was convinced by none and said there was neither clinching evidence nor irresistible conclusion leading to guilt of Talwars.

If they are killers, why do they hand over key evidence of murder and why oppose the closure report by CBI. The first CBI team named three others as accused, and cleared Talwars of suspicion and then wanted to close the case as they could not further secure evidence against compounder Krishna, Rajkumar and Vijay Mandal and domestic servants. Second CBI team charged Talwars despite the different advice by seniors. 84 witnesses and forensic reports failed to convince High Court to hold them guilty. Absence of clear cut motive, incomplete understanding of the sequence of events and non-recovery of weapon of offence and their linking to either the servants or parents were the reasons for closure report of CBI, which are endorsed by High Court now. Second CBI team relied on ‘no possibility of outsider entering house’, but the defence raised that possibility.

When the trial court is convinced with CBI’s contention, why was the HC unconvinced?  The answer lies in the final paragraphs of the HC’s order:

It is apparent that the trial Judge was unmindful of the basic tenets of law and its applicability to the given facts and circumstances of the case and failed to properly appraise facts and evaluate evidence and analyze various circumstances of this case. It can by no means be denied that the trial Judge, perhaps out of extra zeal and enthusiasm and on the basis of self perception adopted partial and parochial approach in giving vent to his own emotional belief and conviction and thus tried to give concrete shape to his own imagination stripped of just evaluation of evidence and facts of this case.

While appreciating evidence vis-a-vis facts, it was incumbent on the trial Judge to have angled things from a common platform and would not have deviated from that platform as and when the evidence took another turn. May be, that the witnesses of fact testified one way and may be that the Investigating officer conducted the investigation other way but unnecessarily coherence should not be brought in between the two incongruous objectives as that would be a fallacy which the trial Judge has committed in this case.

Pointer is that the trial Judge should evaluate evidence in its existing form, should not tinge it with his passionate reasoning so as to give a different construction than the one which is naturally reflected and forthcoming. Caution enjoins on the trial Judge that he should exercise self-restraint from deliberately twisting facts in arbitrary manner and should refrain from recording finding on strength of wrong premise by virulent and meandering reasoning. The entire judgment is on the whole creation of fanciful reasoning with pick and choose presuming facts with indomitable obstinacy and taking things for granted, thus, basing conclusion on unfounded evidence. The trial Judge is supposed to be fair and transparent and should act as a man of ordinary prudence and he should not stretch his imagination to infinity – rendering the whole exercise mockery of law.”

Our adversarial criminal justice system is blamed as ‘accused-centric’. In a predominantly corrupt system, this adversarial system alone works. Cases like Aarushi kill credibility of entire system. It is difficult to investigate a case without autonomy and high probity.

The UP Police had initial advantage of securing clues from the scene of offence, had experts reached earliest. They failed and handed over to CBI, which closed investigation without identifying the culprits. Parents demanded several bloody prints on the terrace to be sent to foreign laboratories for purpose of touch DNA analysis. Though initially agreed, CBI decided against. Advocate Rebecca John questioned: If Talwars are involved, why did they oppose the closure and wanted thorough investigation? Rebecca blamed investigation as dishonest and in support, she pointed out that police found a pillow cover with blood stains in domestic servant Krishna’s bedroom and Hyderabad DNA Fingerprinting and Diagnostics CDFD found that the DNA of Hemraj (who was also killed) matched the blood on that pillow.

Investigators should not target people and collect evidence; evidence should lead to accused. It is a herculean task to prove guilt beyond reasonable doubt, while it is comparatively an easy exercise to raise reasonable doubts that benefit the accused. Besides, parallel trial through press conferences and leakages by police continue. The court trial and media trial is also engineered by police. Now, added is social media trial. In the process, innocent’s image is tarnished and character assassinated, truth being ultimate casualty. Real criminal hides behind this hype. Aarushi is a typical example.

When an innocent is frequently framed, the value of ‘accused-centric system’ is realised. The high standard of proof, keeping onus on prosecution and giving benefit of doubt to the accused are essential characteristics and established practices in jurisprudences universally. The recommendation of Mallimath Committee to shift burden to accused, if followed, would have ended in gallows for Talwars. Even if culprits are not caught, innocents should not be penalised.

We do not know who fired the fourth bullet into Mahatma Gandhi, where are the three absconding accused and who the other culprits are. Aarushi or Gandhi, only an objective and independent investigation takes the real culprits to jail. Two questions remain unanswered: Who will compensate Talwars for their wrongful and long incarceration and who will catch the real killers of Aarushi?

(Sridhar Acharyulu is a law professor and a member of the Central Information Commission. Views are personal)

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