Closure and the Talwars

January 28, 2011 § 4 Comments

So NDTV has uploaded the Aarushi Talwar closure report filed before the Magistrate’s Court at Noida. You can read it here: http://bit.ly/fAharB

Aarushi Talwar, her Facebook feed, her virginity (or rather the lack of it) and her weeping parents were all over our TV screens a few years ago. The coverage was so overwhelming (and plain pissing off) that I switched off mentally and didn’t bother following up on all the conspiracy theories and new material that kept resurfacing as the years went by. I recollect that her father was discharged, the various servants who were hunted down were also given a clean chit from the cops, and ultimately this Case remained a “whodunnit”. The CBI, who had taken over the investigation, decided to end things by filing a closure report, which the Talwars were upset about. When @saffrontrail posted the Closure Report link, my first reaction was a “Meh” when she asked me for my opinion on DM. I wound up reading it, and the bizareness of the whole situation came forth. As I usually do, I spilt my reactions on Twitter, and I was accosted with links to an Open Magazine Article which you can read here: http://openthemagazine.com/article/nation/worse-than-a-daughter-s-death

Now while I am all for freedom of the press, I draw a HUGE line in a permanent marker when it comes to possible Trial by Medias. I don’t care if it’s pro the Victim (Jessica Lal) or the Accused (Rajesh Talwar), I think it’s too risky a precedent to set in a Country which, by the way, just was bombed by the whole “press bazaar” revelations of Nira Radia and the gang. I appreciate the awesome work put in for the Jessica Lal case, the point is, we can’t have the Media passing judgment on what is right and what is wrong, especially in the context of a matter that is under trial.

When a First Information Report is filed (FIR), the Police has to investigate. Sometimes, the Police cannot find the person who did it. Sometimes, the case is just plain false. Sometimes, the case is actually a Civil dispute. In such circumstances, the Police can file a closure, or summary report. Now, it’s not obligatory for the Court to accept this. The Court can just as well reject it and tell the Police to continue the investigation. The Court can even direct the Police to file whatever material they have as a Chargesheet against the Accused.

From my reading of the Closure Report, Rajesh Talwar should be made to stand trial. This is my opinion. Apparently there are two reactions to this:

1. The Media reports that the evidence was fabricated: One, back to my original point about the trial by media, I don’t think anyone is in a position to say that the evidence is doctored except the Court. When evidence is produced, the Accused has a defence lawyer who gets paid big bucks to demolish this evidence. On that basis, the Court can conclude that the evidence was planted, the witnesses were tutored, forensic evidence was tampered with. Remember, the onus is on the Prosecution, and not the defence. Secondly, even if the evidence was fabricated, that is all the more reason to have a trial and get this exposed. Nothing can be done on the basis of a closure report. If Dr. Talwar is acquitted, he can prosecute the Police for Malicious Prosecution. Right now, he has no remedy.

2. The lack of motive: I think people give way too much importance to motive, probably thanks to popular culture. Courts have well recognized that people are strange. If people behaved the way they should, there would be a lot less cases and heinous crimes to deal with. What I find amusing is that while the papers are filled with stories of fathers killing daughters, daughters killing mothers, brothers killing sisters every day, there is so much “how can she slap” type outrage at the possibility of a Father killing his daughter in this particular case. The only difference is that while the earlier instances involve families who are basically slumdwellers, this is an educated family who have internet access and live in an independent house in an upmarket area. In Criminal Law, motive is just yet another link in a chain of circumstantial evidence.

3. Adequacy of evidence: In particular, the lack of the murder weapon, or rather, its late recovery under rather suspicious circumstances. Again, whether or not this would hamper a conviction is not our call to take, unless one of you has suddenly found yourself to be a Sessions Judge. While the media is spouting various provisions of the CrPC while covering this Closure Report, everyone seems to have ignored Sec. 106, Indian Evidence Act:

106. 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. 

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 is charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him.

 

There are several pieces of information relating to this case solely within the knowledge of the Talwars, since it happened in their house in a locked room. There were not one, but two dead bodies found in a house, which implies that two murders took place within the span of one hour. Someone has some explaining to do.
As for the soppyness of the Open Magazine Article written by a chap who was painfully explaining how he was related to practically everyone concerned with the case, the Criminal Procedure Code specifies a time and place for everything, and the time and place for the defence of the Accused, if any, is not at the stage of the Chargesheet. It is only after the Prosecution adduces all its evidence than the Court will call upon the Accused to enter into his defence.
I do feel however that the focus on the victim’s social networking and her exposure to sexual activity attracted a lot of unwanted attention. At least in death, we should accord some dignity to this girl who no one could protect in her lifetime. These are serious aberrations and the Officers responsible for these lapses should and must face the music. Whichever side of the debate you are on, a trial, based on the material collected, is really the only way to ensure that some kind of justice is done.

 

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