The curtain has nearly come down on the 2008 murder of Aarushi Talwar and Hemraj. In turning down the Sessions Court ruling of November 2013 that convicted her parents for life, the Allahabad High Court last week appeared to have gone by the fundamentals of the law of evidence, and gave the dentist couple the benefit of doubt . An essential lesson here for criminal justice agencies is that a sound knowledge of law backed by adherence to prescribed procedure would save them from such admonition by superior courts.
CBI helplessness
We must remember that the Central Bureau of Investigation (CBI) did not want to take the case to court with a charge sheet. It wanted a closure because of the inadequacy of evidence available. The agency was overruled by a well-meaning and possibly overenthusiastic trial judge.
In contrast to the trial court finding the Talwars guilty, the High Court has obviously played by the book and acquitted the couple. The judgment indicates anguish over a senior judge ignoring the fundamental requirement of ‘conclusive proof’ in such cases of bodily harm and going solely by facts, which had many gaps. The principal lesson for trial judges is that one cannot go by presumptions and assumptions.
One striking feature of the whole episode is the revelation that that there could be three differing perspectives — of the investigating officer, the trial judge and the High Court — on a single occurrence.
The truth seems to lie somewhere in between. This candid approach by established criminal justice agencies to a sensational crime, that rocked almost the whole nation is, however, most welcome. Or else the outcome in many instances could lead to a miscarriage of justice.
Competence of investigators
The Aarushi case demonstrates that investigators cannot be expected to achieve the humanly impossible task of ferreting out all the hidden facts in respect of a crime. There will always be gaps to fill, and you cannot lambast an investigator for not getting all facts to the table. Only dishonest suppression of facts is culpable.
But what stands out here is the judiciary’s predilection to exerting enormous pressure on investigating agencies. This may not be illegal, but is certainly extralegal, as, for instance, a direction to the former to arrest an accused. In my view, the decision with regard to arresting an accused must be solely at the discretion of the investigating officer, unless one can prove mala fide on the latter’s part.
I am worried about the possible impact of the tenor of the High Court judgment in the case on trial judges in the rest of the country. Is there a prospect that they may play it safe when confronted by similar circumstances? There is already a tendency to delay judgments or avoid writing them during one’s tenure. This predilection could grow in the days to come in respect of tricky cases like Aarushi’s.
Police inadequacies
Some blatant mistakes were in fact committed by the U.P. Police, which did the first investigation before handing it over to the CBI. The most serious of these was the failure to protect the scene of crime, and allowing free access to it to all and sundry. A few heads should roll.
The episode reveals the police’s inadequacy in investigation work. There are very few takers for this branch of policing because it calls for a thorough knowledge of procedural law and familiarity with advances in technology. Also called for is abundant perseverance. The beeline in the police these days is invariably to law and order, where there is the lure of pomp and money. The situation is nearly beyond redemption, because no direct recruitment to crime branches is possible without a grounding in the area of law and order maintenance. Many officers prefer to get stuck in the law and order division.
Takeaway for the CBI
It is on record that three successive CBI Directors oversaw the case. When the heat was turned on the first investigator, another team was formed and strenuous efforts were made subsequently to get to the bottom of the mystery. The closure report was the product of intense labour and application of several sharp minds. To shred it as shabby and unreliable is not going to motivate future investigators. Despite all this, the CBI may have to reflect on what impelled the High Court to make harsh observations. If the court is correct on facts, then there is a need to reflect on restructuring procedures. Otherwise there is a case for going back on a revision. Not doing anything further in the matter will not be acceptable to public opinion.
At the end of all this, we are not an inch closer to the truth. Can we allow the matter to rest here? Can we reconcile ourselves to the liquidation of two innocent lives without identifying the killer? That would amount to negating all that we look for in a civilised society.
R.K. Raghavan is a former CBI Director
