Aarushi Talwar murder case: Of swinging Talwars on all of our heads

The entire case of the Talwars has caused discomfort in the pit of my stomach from day one. The horrendous murder of a 14-year-old girl in the comfort of her own home was just the beginning. 

This case is probably the last in recent history to have such public outcry for the accused. It was incredible to see the investigative journalism machinery digging high and low for material which would exculpate the accused, while the Central Bureau of Investigation (CBI) – by all means an overworked institution, originally meant to look into cases of corruption by public servants – was fighting tooth and nail to seek the conviction of persons against whom it had admitted there was “insufficient evidence”. 

A closure report came to be filed, which as a then-practitioner of criminal litigation, I could never quite understand. It sought to close the case as one which was “true, but undetected” – it gave a “clean chit” to everyone but the parents, but even then stated that in its opinion, they could not be prosecuted. In my opinion, back then, a trial was really the only way to get to the bottom of things, whichever way you looked at it. Why the CBI wanted to file a closure report was beyond me; chargesheets on flimsier grounds have made their way to trial, surely.

I’m not quite sure I agree with the decision of the Talwars to challenge the closure report, which so obviously named them as the only possible perpetrators, in the mistaken belief that an order from a magistrate for reinvestigation might just miraculously convince the CBI to completely change its point of view. No argument with the magistrate though, who read the closure report and ordered trial to commence against the Talwars.

Now while we are all so appalled with the abysmal rates of conviction in India and about how our judicial system is “so pro-accused”, we sometimes forget how loopholes work both ways. I present to you, Section 106 of the Indian Evidence Act: 

“106. Burden of proving fact especially within knowledge – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations:

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A person is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Section 106 is the not-so-secret weapon of all Indian prosecutors when dealing with cases of circumstantial evidence. Did the murder happen inside a car? If the accused was proved to be in that car, he is supposed to explain – nay, prove – how the person died, if not by his hand. A woman ended up dead an hour after she left a restaurant with you. If you are accused of the murder, you need to prove where you parted ways while she was still alive. In short – the prosecution must prove everything in the chain of circumstances of evidence – except what can only be proved (or rather, disproved) by an accused. 

So what can an accused do? He or she can present alternate evidence which causes the chain of circumstances to break. Once the prosecution finishes its case, all incriminating evidence is placed before the accused to explain. This is not done on oath, and the accused can say what they think best explains the circumstance, or admit or deny it. After that, they have the option of examining defence witnesses, which may even include themselves, by forsaking the constitutionally guaranteed right against self incrimination. 

The Talwars sought to reexamine the evidence which was set forth against them, and perhaps produce all the interesting facts brought to light by various journalists. And it was here that they encountered yet another reason why the criminal procedure isn’t as accused friendly as it is commonly believed to be. 

While prosecutors are supposed to be officers of the court, nothing in the code of criminal procedure actually says that the prosecution is obliged to disclose all evidence collected in a case. It is only required to produce those documents which it seeks to rely upon at the stage of trial. In the United States, the Brady clause states that failure to disclose favourable material evidence to an accused is a violation of due process clause. In such circumstances, the right of the accused to produce possible assistive material is important. Unlike the unbridled right of the prosecution to produce documents and evidence, however, the right of the accused to do so is subject to the permission of the court. Similarly the monopoly over government forensic laboratories exists mainly with the prosecution, and it is only in limited cases, especially under the drugs and narcotics laws, that the accused can take second opinions on lab tests.

In this case, right up to the Supreme Court, applications made by the accused to examine defence witnesses, reexamine forensic material or requisition documents have been rejected, mainly on the grounds of excess time being taken to do so (in a case which has already been in progress for 5 years, mind you). While the point of possible “vexatious proceedings” is well taken, the maxim of ensuring that justice must not only be done, but must be seen to be done, is also extremely important. If the court's view of wasting time is the issue here, let’s remember that we've already spent all this time and taxpayer’s money on a case which the investigative authorities themselves wanted to close. 

This isn’t trying to solve the whodunit, but rather the angst of a moviegoer, exiting a theatre, not quite convinced of the ending. I take some comfort in the fact that this case proves a point to those arguing for reversal of the burden of proof, speedy trials and the like when talking about reforming the criminal justice system. This is an anomaly of a case where no one except the Hon’ble Sessions Judge actually believes that the accused are guilty. Where an accused has no public sympathy and no one in the media wishes to uncover the “other side of the story” – are we sure we are really doing the right thing?

(Amba Salelkar is a lawyer, who moved into disability law and policy after six years in criminal litigation. She works withwww.inclusiveplanet.org.in. She tweets at @mumbaicentral )