Aarushi Trial: How the court works

Last Updated: Mon, Sep 24, 2012 10:15 hrs

The best time to observe how the lower judiciary works, is when it isn’t working. On Friday, the special court hearing the Aarushi-Hemraj murder trial suspended proceedings because of (yet another) death in the Ghaziabad legal fraternity.

The deceased was a former vice president of the Ghaziabad bar association. He was traveling to Allahabad and suffered a heart attack on a train on Thursday night. This meant ‘condolence ho gaya’ on Friday in Ghaziabad.

The CBI, which has been instructed by the Supreme Court to find and examine two “untraceable” witnesses, hasn’t yet found either the security guard or the domestic servant they have been looking for. Instead, they had summoned Sanjay Thakur, an assistant at the dental clinic of the accused, Dr Rajesh Talwar.

Thakur was there when Dr Talwar handed over a set of 12 golf clubs and a golf bag to the CBI: his signature is on the 30 October 2010 seizure memo. This is his only connection to the case, recorded in single paragraph in the documents the CBI is relying upon.

Thakur worked at Rajesh Talwar’s clinic in South Delhi’s Hauz Khas. One of the golf clubs is the weapon with which the Talwars allegedly killed their daughter Aarushi and servant Hemraj in their NOIDA flat in May 2008.

Thakur had been summoned, yes. But he did not appear. According to defence counsel Manoj Sisodia, the prosecution told the court first thing in the morning that the summons could not be served. According to the CBI counsel, R.K. Saini, nothing could take place in court because of “condolence”.

The news of the unfortunate demise of the former vice-president of the Ghaziabad bar association came at approximately 11.30 am; i.e., after the court had heard the witness wasn’t turning up.

In sum, a witness who was supposed to appear did not—which is something of an anomaly in this trial. Usually, the defence—or the media—doesn’t know who will appear next until they turn up in court on the morning of their testimony.

Frustrated by the daily surprises being sprung on them, the Talwars pleaded with the court several times to direct the prosecution to let them know which witness would be examined on the next date. Giving the other side this information isn’t just a matter of form, they argued, it impacted preparation for cross-examination. The prosecution never did this—even via a telephone call. In late July, the court directed the CBI to give the defence adequate notice.

This was to no avail: the defence was never given the names of the witnesses, and almost every hearing since then has begun with the same recriminations. Which brings us to the question: how were the dozen-and-a-half-odd witnesses examined so far summoned in the first place?

The answer to this is in a set of certified copies of summons issued by the court to these witnesses. After proceedings are over for the day, the CBI takes filled out summons forms to the judge. The forms contain the name of the witness and the date on which he/she needs to appear. (In some cases—as with the important witness Bharti Mandal, the Talwars’ maid—the summons were ready days in advance.) This meant the prosecution knew who would appear. The judge signed the summons, so the court knew as well. The only interested party left in the dark was the defence.

This is how it works.

More on Aarushi trial:

Trial games set to intensify as Nupur gets bail

Peculiar development stumps CBI

CBI's loss is Talwars' gain

Friends of the Talwars give testimony

Killer's palm print lost due to a cop's negligence?

The mystery of the bloodstained, locked terrace door

CBI's Teacher's Day

Currently a visiting fellow at INSEAD, France, 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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