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Lapses in the Aarushi Murder Case

By Abha Singh

The time-honoured Blackstone's Formulation, "Better that ten guilty persons escape than that one innocent suffer", once again appeared to manifest itself with the acquittals of Rajesh and Nupur Talwar in the double murders of their daughter, Aarushi and servant Hemraj. By giving the prime accused the benefit of doubt, the Allahabad High Court overturned the guilty verdict of the special CBI court and acquitted the Accused. It also castigated the CBI Special Judge as being unaware of his solemn duty cast by law and dealing with "the entire case in style - a finesse."

Abha Singh

At the outset, the High Court's chastisement of the CBI judge is clearly uncalled for. The powers of an Appellate Court are provided under Section 386 of the Code of Criminal Procedure, 1973. In an appeal from conviction, the High Court may reverse the finding and acquit the Accused, direct a retrial or dismiss it, maintaining the sentence. Nowhere does the law provide any means to cast personal aspersions on the character or integrity of the subordinate judge.

Thus, the High Court, at the very outset, overstepped the mandate of 386 Cr.P.C. The trial-judges are after all, constitute the prime machinery of the criminal justice system. Such adverse observations may even impact the CBI judge's prospects of career advancement. It is imperative that these statements be expunged forthwith.

Another issue that formed the bone of contention was the inability of the UP Police to secure the crime scene after the murder, as a result of which critical evidence was destroyed. What is less discussed however, is the fact that even before the police arrived, the crime scene was under the exclusive possession and control of Rajesh and Nupur Talwar. This gave the accused precious time to clean up the scene and hide the murder weapon, which remains untraceable till today. Further several objects at the crime scene were neatly arranged with traces of a clean-up job. In its 2010 Closure Report, the CBI had itself stated that the golf sticks, which were the alleged murder weapon, were cleaned so thoroughly that not a trace of blood could be found on them. Clearly, the killer had the time to set things right before he fled. Further, even the terrace on which Hemraj's body was found was inaccessible to the Police till the very next day as Mr. Talwar claimed not to be in possession of the keys. In both situations, the crime scene appeared to be in the control of the Accused and when finally accessed, key evidence was missing, breaking the chain of causation which is necessary for circumstantial evidence.

It is a matter of fact that in the present case, there was no direct evidence, only circumstantial. The High Court quoted several Supreme Court rulings which state that the circumstantial evidence on record must establish the entire chain of causation of events which establish the link between the crime and the guilt of the Accused. It relied upon the Supreme Court judgments in Sharad Birdhi Chand Sarda vs. State of Maharashtra and Sujit Biswas vs. State of Assam to hold that the circumstantial evidence must be so strong that it must only lead to one conclusion, i.e. the guilt of the Accused. If it leads to another possibility, then the Accused may be given the benefit of doubt.

The CBI must now go in appeal against the Allahabad High Court order so that not only it clears its reputation but also presses the importance of circumstantial evidence in conviction of murder cases. As it is conviction in murder cases in India is barely 50 per cent and if such anomalies are not removed, the truth will remain hidden, justice to the departed families will be denied and the killers roam scot free. It is so surprising that the scene of crime was not preserved. Media and general public were allowed to roam all over. In contrast to this, in the Sunanda Pushkar case, the Delhi High Court had to pull up the Delhi Police to expedite the investigation. Delhi Police had sealed the room of Leela Hotel where Sunanda's dead body was found. As far as collection and preservation of forensic evidence is concerned, the NOIDA Police failed miserably. The advantage is for all to see.

A consistent feature in several criminal cases, ranging from the Salman Khan case to the Aarushi-Hemraj murder case, are recurring lapses in investigation. In the Salman Khan case, the Mumbai Police admitted to 16 lapses in the investigation, as a result of which Salman got acquitted. Since the Indian judicial system abides by Blackstone's Formulation, a tainted investigation is sufficient to ensure acquittal. This has been misused, time and again, by several powerful entities who have conspired with the Police and Investigating agencies to weaken the case, as a result which they got away scot-free. Thus, the time has come to hold the Investigating Officer accountable for any lapses that tarnish the investigation. This will deter interference by senior officers and political big-wigs and will greatly enhance criminal justice delivery in the country.

(Abha Singh, Advocate, Bombay High Court)

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