Aarushi Talwar’s Parents: Choices Before Them

First published on 02.01.2011

Assumption
Aarushi’s parents are not guilty, and the CBI’s suspicion in the closure report is unwarranted.

I am making the above assumption because balance of convenience lies in favour of this assumption; that is, a wrong report of the CBI does more harm to Aarushi’s parents than a correct report does good to the society.

However, having made the above assumption, I am scared about the security needs of the people in this country. The only reason for the formation of government over anarchy is to secure the lower level security needs of the people, so that they may focus more on thier higher level needs, especially when they are well-educated and have created enough resources in terms of money and knowledge. The CBI’s reason for closing down investigation is their not being able to attribute any motive to the Talwars. Of course, the CBI is correct: sans motive, circumstantial evidence do not have much value as motive is itself an important circumstance. But, the murderer, whoever he is, definitely had some motive to kill Aarushi; what could have been the motive?

Was the motive to teach lesson to the Talwars? That is, to make them recognize that they were incapable of protecting their minor child? And, not only that but also to make them realize that they are also completely incapable of protecting their reputation? Was it because the Talwars at some point of time resisted the attacks on the person of Aarushi in terms of subjecting her to ridicule, exploitation and contempt? Answer to my last question only the Talwars would know, and I respect their silence.

However, Aarushi’s case, more than highlighting the failure of investigating machinery in India, highlights the insecurity under which the educated class of India is living. If it were anarchy, the educated class had faced more challenges in terms of satisfying even their very basic needs, thus it had never felt secured without gaining control over a variety of resources, not just knowledge and money, to gain power enough to protect the person, property and reputation of themselves and their dependents. The state has a responsibility to ensure that those who have been allocated duties under law do perform their duties because that’s its promise to the educated class, who chose the state over anarchy and utilized their skills and knowledge for higher pursuits. However, as the things are emerging from Aarushi’s case, it seems the state not only failed in performance of its promise but also helped those who killed Aarushi, both before and after the murder of Aarushi. This makes me believe that it is actually the state who killed Aarushi, either directly or, at least, in partnership with those non-state actors who killed Aarushi. This is a really serious issue because it seems, in India, the satisfaction of security needs of the people is more difficult than it is in anarchy, and the people don’t even know about it.

But, what are the choices before those who realize the truth all of a sudden, but, in the process, end up losing their loved ones and/or their self-esteem? Or, in other words, what are the choices before the parents of Aarushi? Before the public disclosure of CBI’s closure report, Aarushi’s parents still seemed hopeful and desired to bring in changes in the system. But, what now when their own credibility is at stake? Will the system allow them the liberty to change it? I don’t think so. Well, I think the choices before Aarushi’s parent are two: the first choice is to maintain trust in the system and fight out the attack on their own reputation and that on the person and reputation of Aarushi by knocking the doors of law and society; however, this time after breaking their silence; the second choice is to continue maintaining their silence, stop giving these media interviews if there are no further attacks on their person, and start again and wait for the right opportunity. The selection of the first choice depends upon their own objective assessment of their legal position, esp. after breaking their silence, and upon their faith in the Judiciary and in the instruments of the society esp. the Media. Unfortunately, changing the system is just not a choice before them; they will have to live with it.

Comment Dt. 25.01.2011
The today’s attack on the Talwar needs to be seen in the following context:
– Why Utsav Sharma was not under surveillance after the attack on Rathore?
– Now, Utsav Sharma’s father coolly says that he will have to keep him in confinement. What was he doing till now? Wasn’t Utsav supposed to be in his custody? If not, why not? Who was looking after him?
– How come he has been able to inflict such grievous injuries this time when he couldn’t do so the last time with Rathore? Where did he source his weapon from?
– Why the police is saying that Utsav Sharma seems to be normal?
– Has Utsav Sharma read any portion of the closure report to form any opinion about Talwars? Or, in other words, what was the motivation for attack?
– Is Utsav Sharma’s attack part of a larger conspiracy? Are there some people wanting to put Rathore and Talwar on the same scale while using Utsav Sharma as a tool? Given all conspiracies are hatched in Gujarat these days, does Utsav Sharma’s undergoing treatment in Ahmedabad has something to do with it?

This attack is abhorrent; somebody really needs to get to the root of it.

Comment Dt. 10.02.2011
I have reached a conclusion, and I am sure the conclusion reached by me as an individual, as part of the general public, can not influence the courts conducting the trials, so there is no contempt of court by me; nevertheless, my apologies to the courts; I can’t wait for years to make my conclusions. The conclusion reached by me is that the above assumption of mine is correct. The reason for the same are as under:
– Leaks to the media by the investigators. They ordinarily do it only when it helps in investigation. The disclosure of the investigators in this case, however, was not to help the investigation. Especially, the disclosures by the UP police point to only one thing: the motive was to malign Talwars by giving stories to the Media, which the Media played and overplayed irresponsibly, or, should I say, with utmost responsibility to their patrons who wanted it done.
– Utsav Sharma’s attack on Rajesh Talwar. It is the most unexplained element, and it points to a conspiracy to malign Talwars.
– The attack of the conservatives on the Talwars. This seems to me to be an ideological attack of the conservatives on the liberals. The past shows that the conservatives make personal attacks avoiding logical debates in order to hide the truth; the attacks are often made on the private sexual lives of people. Such attacks have been made in the present case as well.
– Convincing prima-facie rebuttal of all the circumstantial evidence by the Talwars and their lawyers in the media debates, especially the counter-allegations made against the CBI including the unexplained u-turn in the investigation.
-The lack of motive for the Talwars to kill their daughter; in absence of which, the circumstantial evidence carry not much value. And also, the investigators have not been able to account for the swapping of the vaginal swabs.

I think this trial is better conducted in media because the people have been condemned in media. For me, the trial is over, and the Talwars have come out clear of the accusations made against them. Now, the investigators have to use all technology available to account for the murders.

I have a conspiracy theory. All this started at a time when lots of “honour killings” were taking place in the conservative sections of society, and the conservatives were taking the brunt. Thus, they planned it all to show that even the liberals do the same things when faced with family honor, and, in the process, ended up taking innocent lives. The Talwars really need to speak up if there is something of this sort. These conservative animals can’t be allowed to take people’s lives like this. They need to be sent behind cages.

Comment Dt. 11.02.2011
I hear Mr. K.T. S. Tulsi, a senior advocate, saying that under Sec. 106 of the Indian Evidence Act, the onus lies on the Talwars to prove the facts especially within their knowledge. Also, the media is reporting that the onus has now been shifted on the Talwars to prove their innocence. Not having read the order/judgment of the CBI court, I don’t know what exactly has the court asked the Talwars to explain. Nonetheless, going by the CBI closure report, I don’t think there is much explanation required from the Talwars: Most of the things have already been explained in the report (copies of the report are available on various websites, I also recommend Tehalka’s article on this case). Also, there are strong circumstantial evidence of the presence of intruders. The CBI’s conclusion on this aspect is completely wrong, and, if so considered, the Talwars will be left with nothing to explain. I don’t know whether the CBI court has considered the protest petition filed by the Talwars. If not, this would be a gross error of judgment, which, but for the legal immunity provided to the judicial officers, would have made me think otherwise.

Comment Dt. 13.02.2011
Now, I have read the order of the CBI Court. The CBI court reached the opinion that there were four options before the court:
1. To take cognizance against the prima facie accused as emerging from case diary and investigation (Sec 190(1)(b) CrPC).
2. To order further investigation (Sec 173(8) and 156(3) CrPC).
3. To consider protest petition as a complaint (Sec 200 CrPC).
4. To accept the closure report (Sec 190(1)(b) CrPC).

The Court reached the opinion on the basis of a referred case law 2001 AIR 2721. In the said judgment of the Supreme Court, the reference has been made to another Supreme Court Judgment, i.e. 1985(2) SCC 537, wherein the under-quoted has been mentioned:

In  Bhagwant Singh vs. Commissioner of Police and anr. {1985(2) SCC 537} a three-Judge Bench of this Court has said, though in a slightly different context, that three options are open to the court on receipt of a report under Section 173(2) of the Code, when such report states that no offence has been committed by the persons accused in the complaint.  They are:
(1) The court may accept and drop the proceedings; or
(2) The court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or
(3) The court may direct further investigation to be made by the police.

The Court has taken cognizance against Rajesh Talwar on the basis of the closure report, which is the first option. Other than that, the court has also taken cognizance against Nupur Talwar; this seems to have been done under Sec 190(1)(c) CrPC as she was not mentioned as a suspect in the closure report; though the court, in its order, has stated that the cognizance has been taken under Sec 190(1)(b) CrPC, but then it would be an erroneous interpretation of the above quoted SC judgment. The power of the court to accept the closure report is deemed to be available under Sec 190(1)(b) CrPC as the magistrates don’t have any inherent powers, which means the court could have also considered the protest petition under Sec 190(1)(c) CrPC to not to take cognizance against the Talwars. Let us see whether the court has done that.

The contents of the protest petition have been described in the order, so I will assume that the protest petition has been taken on record; however, while passing the order, the reasoning has been limited to the discussion of the circumstantial evidence available against the Talwars, not the protest petition filed by them. The court, in its order, was not only taking cognizance against the Talwars but also dealing with the question whether, on the basis of the information available before it (including the protest petition), the Talwars had discharged their onus (if any) under Sec 106, the Indian Evidence Act, and whether the CBI was required to carry out any further investigation. From the reading of the order, it doesn’t look like that the court has considered all the information before it; i.e., the protest petition has not been considered. It is so because the reasoning forwarded by the court has been comprehensively rebutted in the protest petition. The court has laid lots of stress on the witness of Shauhrat with respect to the attempt to the destruction of evidence, not the destruction of evidence, by the Talwars. A simple reading of the order shows that Shauhrat was earlier paid Rs 25,000 for polishing, not painting, the “wooden partition” in the form of a brick wall. The court has taken cognizance for the offense of destruction of evidence, not for attempt to destruction of evidence, thus the evidence of Shauhrat is irrelevant; the only relevant evidence is the sound test done by the earlier CBI team, which has been mentioned in the protest petition, but it has not been considered by the court. Moreover, the onus to disprove the destruction of evidence (if any) can’t be placed on the Talwars in view of the serious doubts raised in the protest petition wrt the non-involvement of intruder/s, which aspect has not been considered by the court. Another strong circumstance has been highlighted by the court wrt the inability of the Talwars to account for the keys of Aarushi’s room. This is only a circumstance: in a secure environment of a home, one can allow oneself to be careless; one doesn’t have to act with military finickiness. The testimony of Talwars, cross-checked in the scientific tests at four occasions, is enough to account for the unfavorable circumstance. The Talwars’ testimony has been mentioned in the protest petition, and, I think, the report of the scientific tests was also made available to the court, which the court, it seems, has not considered. In the protest petition, the Talwars have also very strongly rebutted the alibi of the servants, which again the court has not considered. Another circumstance going against the Talwars is the locking of the terrace door for the first time on the night of the murder combined with the murderer, instead of escaping through the adjacent linked terraces, coming back downstairs after leaving the dead body on the terrace, thus pointing to the involvement of the insiders. This circumstance only points towards the presence of person/s acquainted with the place, not towards the involvement of the house-dwellers. Other points, raised by the Judge, have also been rebutted in the protest petition. Moreover, many of the points raised by the Judge are based on the consideration of the CBI closure report. In the protest petition, there is substantial information which raises strong doubts about the authenticity of the report filed by the CBI, which aspect, it seems, has not been considered by the court.

In the above circumstances, I think, the court has failed to consider the protest petition filed by the Talwars, and this is a gross error. The Talwars should immediately rush to the High Court and file a petition under Section 397 and 482 CrPC seeking relief for modification of the CBI court’s order by quashing the cognizance taken against them and for further investigation by the CBI. They don’t deserve to go through the trial.

Comment dt. 07.06.2012
The order of the SC passed in the review petition filed by Nupur Talwar reasons that the evidence of the defence can’t be considered at the stage of issuance of process as the accused has no role in the proceedings prior to the issuance of process. Well, the reasoning forwarded by the SC is an error apparent on the face of the record. Rajesh Talwar and Nupur Talwar were not appearing as accused before the Trial Court, but as protestants: The duo had not been named as accused in the closure report filed by the CBI; in fact, Nupur Talwar was not even named as a suspect. Now comes the question whether the protest petition can be considered for arriving at a decision with respect to the issuance of process. Of course, the answer is yes, else there is no use of the protest petition. In the present case, there was no case of the prosecution against the Talwars. The case has been made out suo moto by the Trial Court on the basis of the relevant material placed before it. The protest petition ordinarily would be considered as a private complaint, and the cognizance, if any, against the accused would be taken under Sec 190(1)(a) CrPC. But, here in the present case, the cognizance has been taken against Nupur Talwar, who was not even a suspect in the closure report, which can be done only under Sec190(1)(c) CrPC. The CBI had raised arguments before the Trial Court that even though they have filed a closure report, the cognizance can, nevertheless, be taken u/s Sec 190(1)(c) CrPC. The Trial Court however took cognizance both against Nupur Talwar and Rajesh Talwar u/s Sec 190(1)(b) CrPC relying upon 1985(2) SCC 537 (quoted above). The reliance is completely erroneous with respect to Nupur Talwar because she was not a suspect in the closure report filed by the CBI, so the cognizance against Nupur Talwar is deemed to have been taken u/s 190(1)(c) CrPC (else the Judge faces 7 year imprisonment for passing a grossly erroneous order at law). Now, if the cognizance has been taken u/s 190(1)(c) CrPC, why shouldn’t the material produced by Talwars in their protest petition be also considered u/s 190(1)(c) CrPC? Why should any preferable treatment be given to the material produced by the CBI?

After reading Justice Khehar’s order, I am made to believe that the case has not been handled well enough by the lawyers of the Talwars: First, they didn’t seek a prayer for further investigation; secondly, they didn’t make out a strong technical ground for review; thirdly, they didn’t make out a strong ground in the SLP even. The cognizance against Nupur Talwar is completely erroneous in law; they ought to have pointed it out.

Curative petition is an exceptional remedy granted under only two circumstances: denial of natural justice for not being heard and denial of natural justice because of bias. The bias ground is completely ruled out here. Denial of natural justice for not being heard certainly happened before the trial court, but, before the HC and SC, well, I am not sure. However, I feel the interest of justice demands that denial of NJ even because of the error of the counsels should be a good ground in a curative petition. The remedy has been created as a last resort for getting justice, and the interest of justice demands that at least the cognizance against Nupur Talwar be quashed. And, of course, as already stated, there is also an error apparent in the SC order dt. 07.06.2012 passed in the review petition.

So, I would recommend filing of a curative petition irrespective of the negative opinions expressed by the SC in its order dt. 07.06.2012 because the said opinions are based on an error apparent. Also, now Dr Rajesh Talwar should file a revision petition against the order dt. 09.06.2012 seeking further investigation with an application for condonation of delay.

You are not defeated till the time you accept defeat.

©2011-2012 Ankur Mutreja

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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