Aarushi Talwar verdict rightly cautions lower judiciary on conduct of criminal trials

Much has been written to suggest that the investigation in this case was shoddy to say the least. The CBI in fact had filed a closure report suggesting there was no sufficient evidence available to recommend trial. Of course, this report was rejected. A shoddy investigation resulted in the lack of evidence and the CBI Judge proceeded to find the Talwars guilty on the basis of conjectures and surmises.

Written by Govind Manoharan | Updated: October 13, 2017 3:09:08 pm
aarushi murder case, aarushi hemraj murder case, 2008 Noida double murder case, rajesh talwar, nupur talwar, Dasna jail, Allahabad High Court, aarushi hemraj case, indian express news Aarushi Talwar’s parents were acquitted by the court giving benefit of doubt on Thursday. (File)

On October 12, the Allahabad High Court delivered a judgment in the appeals filed by Rajesh and Nupur Talwar against the orders of conviction and sentence meted out to them by a Special CBI Judge in 2013. The appeals were allowed and the Talwars were acquitted after suffering a jail term of more than four years.

From a legal viewpoint, the judgment of the High Court is neither path-breaking, nor does it make any forays into unchartered territory in criminal jurisprudence. It is a classic case of acquittal based on a well-known principle in criminal law — benefit of doubt. The two honourable judges of the High Court who heard the appeal, have delivered separate, concurring judgments, however, it is the short opinion of Honourable Justice Arvind Kumar Mishra that deserves greater notice. After completely agreeing with the conclusions of his brother judge, Justice Mishra records certain observations on the judgment delivered by the CBI Judge.

There was a great deal of analysis (as there should be) of the findings of the CBI Judge by lawyers, journalists, and hangers-on alike, who participated with varying degrees of expertise. However, rightly in appeal, Justice Mishra has commented that the CBI Judge has, “prejudged things in his own fashion, drawn conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning.”

Justice Mishra further observed, that the CBI Judge, “took evidence and the circumstances of the case for granted and tried to solve it like a mathematical puzzle when one solves a given question and then takes something for granted in order to solve that puzzle and question.”

There are far more scathing castigations in the five-page opinion delivered by Justice Mishra, which ends with a cautionary note to the lower judiciary on conducting criminal trials. The appropriateness and proportionality of these remarks and whether they will be required to be expunged, is a question best left to the Supreme Court in case the judgment is appealed. As the history of this case has revealed, there will be occasion for great debate on Justice Mishra’s opinion as well.

Justice Narayan who delivered the lead opinion—which runs into more than 250 pages—has extended the benefit of doubt to the Talwars. Justice Narayan holds in his concluding paragraphs of the opinion that, “[T]he circumstances of this case upon being collectively considered do not lead to the irresistible conclusion that the appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the appellants; and the other to their innocence and in view of the principles expounded by the Apex Court in the case of Kali Ram (supra), we propose to adopt the view which is favourable to the appellants”.

There cannot be a quarrel with this proposition that if two views are possible, the one favourable to accused must be adopted. However, the upshot of this torrid nine-year-old affair as it stands today, is that there is a crime involving the murder of two individuals, however, there is no offender(s). As far as the Talwars are concerned, after a hard-fought legal battle, they have been acquitted in this case after going through much suffering of having been arrayed as accused for the murder of their daughter, and thereafter, enduring substantial jail term for the crime. That leaves us with the question of truth.

For Aarushi Talwar’s friends, verdict provides closure: Read

The job of a criminal trial court at the first instance, once the gears of administration of justice have been set into motion, is to provide a fair trial to the accused and finally, on the basis of evidence adduced in the trial, enter a finding on guilt. The criminal court is not called upon to enter a finding on the innocence of the accused.

This flows from the established notion in criminal law of presumption of innocence until proven guilty. The effect of this oft-quoted line is to put the burden on the prosecution to establish a clear and convincing case backed by evidence in order to prove beyond reasonable doubt, that the accused is guilty. Our criminal procedure extends to the accused the benefit of not leading any evidence in favour of their innocence, and as a result, the accused is entitled to avail of the benefit of doubt. This could mean one of two things: that the accused is innocent, or that the prosecution cannot establish on the basis of the evidence adduced that the accused is guilty.

The assistance provided to a criminal court in the administration of justice, starts with the investigating agency. Establishing a case beyond reasonable doubt necessitates that there ought to be no glitches in the investigation. Much has been written in the context of this case to suggest that the investigation was shoddy to say the least. The CBI in fact had filed a closure report suggesting that there was no sufficient evidence available to recommend trial in the case. Of course, this report was rejected.

A shoddy investigation in this case resulted in the lack of evidence in support of the case of the prosecution, and as rightly observed by the High Court, the CBI Judge had proceeded to enter a finding of guilt of the Talwars on the basis of conjectures and surmises.

Today, the question of obtaining justice for the deceased in this case is being flung around by the media, however, its role as an impediment cannot be ignored. Various conclusions during the investigations, at the time of the trial and upon the pronouncement of the judgment by the CBI Court, were advanced by the media. There was a great amount of speculation surrounding this case right from the beginning, largely fuelled by the fourth pillar.

Let me not be understood to suggest that the media must remain mum in reporting crimes and the conduct of the trials, however, the alacrity with which the media followed this story and supplied surmises on the basis of possible leaks from the investigating authorities, impinges on the criminal justice process. Although Justice Mishra pins the erroneous appreciation of the evidence and “passionate reasoning” by the CBI Judge as a possible outcome of the Judge’s “self-perception”, it is difficult to ignore the potential adverse impact the media has had on this trial.

A well-known defence lawyer once told me that a criminal trial is often not about finding the truth. A version propounded by the prosecution is tested by a court of law on the basis of evidence, and in the absence of eye-witnesses, the trial is conducted on the basis of circumstantial evidence. Two individuals who verily knew the truth of the events that transpired on that fateful night of May 2008 in Flat L 32, Jalvayu Vihar, are not alive today.

The versions before the courts were perceptions of the truth which required to be tested on the anvil of strict evidentiary appreciation. Due deference to this established process of administration of justice has been found lacking in this case, and we are left staring at the collective failings of institutions. While I write this, there are news reports that the CBI is contemplating an appeal to the Supreme Court of India–where admission of petitions for hearing is a great impediment in itself. However, an end to the speculation and discussions surrounding this matter is unlikely to happen in the near future.

Govind Manoharan is an advocate practicing at the Supreme Court of India.

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