A bold order

AARUSHI TALWAR, WHO was found murdered in her house in Noida in May 2008. - PTI

The Judicial Magistrate's order in the Aarushi-Hemraj murder case, directing the parents of the victim to stand trial, is an interesting departure from convention.

A RELATIVELY inexperienced Uttar Pradesh Judicial Magistrate will go down in the history of criminal justice as an officer who dared to depart from convention and go beyond the normal rules of evidence, mainly in pursuance of justice for a teenager who was murdered in her own home under mysterious circumstances nearly three years ago. By directing parents of the victim, Aarushi Talwar, to stand trial for the dastardly act, Preeti Singh, the Magistrate, has sent the signal to potential offenders that no crime will go without judicial cognisance or unpunished just because nobody witnessed it.

In her order of February 9, the Magistrate refused to accept the Central Bureau of Investigation's (CBI) closure report because she felt that there was enough evidence to suggest that Aarushi's parents, Drs Rajesh Talwar and Nupur Talwar, had had a role in the ghastly end to a promising life. The move is highly controversial because such action, on the face of it, goes counter to the time-honoured judicial dictum that criminal guilt is established solely by conclusive evidence. Where there has been the slightest inconsistency in the evidence let in by the prosecution, the courts have always let off the accused by giving them the benefit of the doubt.

Talking of inconsistencies, there were several in the Aarushi case first handled by the Uttar Pradesh Police and later by the CBI which had led to the feeling that the case was doomed forever. It is satisfying that the Magistrate had other revolutionary ideas that may startle many of us steeped in tradition. There is a similarity here to the Priyadarshini Mattoo case that rocked the nation a decade ago. Both cases suffered initial mishandling by the local police and later went to the CBI, which had to bear the cross for the deficiencies noticed in the Delhi Police investigation in the hours immediately after the crime was reported.

Gratifyingly, the Priyadarshini case ultimately ended with the conviction of Santosh Kumar Singh, a college-mate of the victim, who had stalked her for a while. It will be preposterous to predict the conclusion to the Aarushi case: whether one or both parents will be found guilty, and for what offence, murder or concealment/destruction of evidence. The alleged cleaning up of the girl's body and the disappearance of a golf club, the suspected murder weapon, are cited here as factors that are relevant to the case. I understand the CBI is more or less convinced that no one other than the parents, the victim and the three servants were in the house that night. There was also no evidence of any forced entry into the building, a fact that ruled out the hand of an outsider, such as a professional burglar looking for property to steal. It is my belief that Section 106 of the Indian Evidence Act persuaded the Magistrate to act the way she did. The Section says: Burden of proving fact specially within knowledge: When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

This bizarre case requires the utmost sensitivity on the part of everyone, including commentators like me. The same note of caution applies to the media. This is because we are concerned here with the murder of a teenage girl. The temptation is to play up the element of sleaze that, unfortunately, goes with it. One needs to steer clear of this pitfall. It is just possible that there was a relationship between the girl and the domestic servant Hemraj, and this suspicion was the basis for the speculation that the two were surprised on that fateful night by the Talwars, who, in a fit of rage, inflicted violence on them. In sum, this is touted as an honour killing by two outraged parents. This is a matter of conjecture, which may never be confirmed as true or false. No other motive for the crime has until now been aired, either by the public or the investigating agency, especially in the context of the nearly proved fact that no outsider had come into the Talwar home on that fateful night.

The Talwars are rightly incensed and have lashed out against the system (read CBI and the Magistrate). It will be extremely unkind to be critical of them. They have lost their precious child and their personal reputation is also at stake. Hence the need for abundant circumspection in whatever we say. They should, however, derive comfort from the fact that they will receive a fair trial. Also, they possibly have the resources to hire the best legal brains to defend them.

There have been several twists in the investigation. Among them, an unfortunate statement by the Inspector General of Police (IGP) in the State concerned, when he went to town proclaiming the guilt of the parents. This was condemned by all, including the media. He might only have talked too soon and with a lack of finesse. Nothing that happened since then has suggested that the IGP was rash or that he was speaking out of any malice. Recent events go to show that the officer was not totally off the mark. He was possibly overzealous and undiplomatic. This demonstrates, once again, the irrefutable fact that training in media handling for Indian Police Service (IPS) officers is either inadequate or ineffective. I know it for a fact that the National Police Academy (NPA) has been labouring on this front.

I must commend the CBI for its candour in admitting that it had not been able to crack the case. Elsewhere in the world one may not have been surprised by this level of honesty. In India, however, we are not used to this kind of truth emanating from a police agency. It is unfortunate that some misinformed persons have berated the CBI for this, instead of complimenting it. Several crimes go undetected, however uncomplicated the facts surrounding them might be. This is the experience the world over.

One must encourage investigators to be as transparent as the CBI has been. Or else, they will continue to fudge records, only to prove that they had tried hard, even when they had not. I welcome this trend in the CBI's endeavours to solve crime. I do not, however, want to be seen as giving a clean chit to the CBI investigators. The apparent contradictions in the findings of the first and second teams do raise misgivings. This is for the organisation's top brass to look into and initiate appropriate remedial action so that such a situation does not arise in the future.

The Aarushi case confirms that our investigators, especially in the State Police, are novices in handling scientific evidence, understanding such evidence and placing it before courts in a manner that is convincing to the judges. This is despite all claims of the Indian Police being more science and technology savvy than before.

The need of the hour is, therefore, professionalism, and the alibi of political interference in achieving this is unconvincing. Also at issue is how to ensure a seamless transfer of cases from the State Police to the CBI. In both the Mattoo and Aarushi cases the drill was unsatisfactory. This could be a matter that could be discussed at the annual conference of Directors General of Police in Delhi. We have some brilliant minds in the IPS and the forensic laboratories in the country. Together they can solve this problem by reviewing procedures and arriving at a clear-cut drill, which allows no room for deviation. We owe this to future victims and their near and dear ones. Until this is done, we will continue to be dogged by controversies.