Aarushi case: Why CBI is reluctant to handover DNA evidence to Talwars

Last Updated: Thu, Sep 12, 2013 04:37 hrs

In the way that lay people understand the workings of the judiciary, the rejection of an application by a court is a defeat for the party making the prayer. But the law is much more complex than that. On Wednesday, the Allahabad High Court rejected an application filed by Rajesh and Nupur Talwar asking the court to clarify an order it had passed in July. That judgment, said the court, was "very clear". There was nothing to clarify. Application rejected.

But Aarushi Talwar's parents, accused of the 2008 murders of their daughter and servant Hemraj, got what they wanted: the court's reiteration that its earlier order was comprehensive and clear, and that non-compliance could be met with further judicial action.

The Talwars are often forced to challenge the orders of the fast track CBI court in Ghaziabad where they are being tried: this is why the scene shifts frequently between Ghaziabad and Allahabad, with occasional stops at the Supreme Court. Some months ago, they had approached the High Court challenging a trial court order that, among other things, denied them access to the full record of the DNA testing conducted in the case.

In July, the High Court provided a voluminous judgment, more than five pages of which was devoted to explaining what kind of DNA testing-related documents the defence had the right to access and why.

Quoting from a landmark judgment in the UK, (the 1997 Gary Adams case), the court explained how it was sensible to apply the basic instruction from it to the Indian context. Fundamentally, the court said this: the defence (in this case the Talwars) had the right to all data that formed the basis of the opinion provided by the CBI's forensic expert. The judge made it clear that in the interest of a fair trial, the Talwars could take the raw data to their own expert and seek a second opinion. In the High Court's view, the trial court's rejection of this right was a "patent illegality", which it corrected.

It is baffling as to why the CBI doesn't want to part with the data. Instead, it has provided the Talwars with its expert's final reports. This is significantly different from providing raw data. For example, the reports are often in the form of graphs, which are renderings of a complex set of numbers and codes, stored in special files. The DNA expert needs these files for any worthwhile analysis. They haven't been provided. And in some cases, neither have final graphs: where no DNA is detected, the agency claims, there is no data; you get blank sheets. (This is absurd.)

When the Talwars asked the trial court to ask the CBI to provide the documents as directed by the High Court, the trial court ruled once again in the CBI's favour. This is why the need for the latest application to clarify the July order came up.

And even as the court rejected the application, it said that the Talwars' prayer for the documents was granted "without any reservation". And that: "the kinds of documents referred have also been discussed therein and I have no manner of doubt that the authorities concerned have to read the entire judgement in conformity with every aspect".

The "have to read" is the giveaway. It means the authorities haven't read the judgment as it should be read, even though it is clear enough. On the evidence of this case, this is a lot to ask of the CBI. The Talwars may well be forced to file for non-compliance against them.

Read more:
CBI counsel's questions baffle even the judge

Aarushi's neck was likely cut using khukri: Expert

Is CBI ignoring evidence against Krishna?

The Talwars try to prove their version in court

Avirook Sen has been a journalist and writer for over 20 years. A former resident editor of Hindustan Times (Mumbai) and editor of Mid-Day, he has written with passion and insight on subjects as varied as sport and terrorism for top publications across the world. His first book, Looking for America, was published in 2010 to enthusiastic reviews. You can write to him at avirook@gmail.com

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