Aarushi Trial: Independent expert to re-examine DNA evidence

Last Updated: Fri, Jul 19, 2013 22:57 hrs

"It was a peculiar case where both the parties, namely, the complainant as also the investigating agency, were pleading insufficient evidence though the ultimate prayer of both was different"

This is what the Allahabad High Court observed on Friday, passing an order on an application filed by Rajesh and Nupur Talwar, the dentist couple who are on trial for the 2008 murders of their daughter Aarushi and servant Hemraj.

That sentence in the order goes directly to the heart of this case.

In 2010, the CBI had filed a closure report which was full of insinuations, but, by the agency's own admission, well short of evidence to convict the Talwars.

The Talwars rejected the report, protested; asked for a reinvestigation, and almost as a consequence, found themselves on trial. At the time, they were pleading that the evidence collected be attentively examined, but this was never done.

At the Allahabad High Court, last month, have been at the receiving end of multiple rejections, the accused argued that an independent expert be allowed to re-examine the only hard evidence there is in this case: the DNA documents.

On Friday, the High Court passed a far-reaching order. In essence, it says that the DNA reports by state-sponsored labs (the CBI's Central Forensic Science Laboratory is the primary one) cannot be the final word on such scientific tests. Independent experts must be allowed to go through the records and procedures to ascertain whether everything was kosher.

This takes away the 'finality' that is usually associated with DNA reports in India, and reaffirms that this kind of testing requires skill and competence.

There are about a dozen reasons to question the competence of the CFSL in the Aarushi case, and one of them appears more than half a dozen times in the reports: The scientist has found traces of blood, but inexplicably cannot find DNA. This is true of the once suspected murder weapon, a khukri; a bloody palm print on a wall, and a number of other samples collected from a crime scene filled with blood.

The CFSL scientist who did all the testing in the case is a diminutive gentleman by the name of Dr B.K. Mahapatra. In court, he suddenly forgot where and how he had collected samples from the crime scene. He also submitted reports in which he found blood of non-human origin, but couldn't identify the species whence the stains may have come.

NOIDA, the Delhi suburb where the Talwars lived isn't exactly Madagasacar.

Friday's High Court order is detailed and lengthy. It relies upon not just the wisdom of the Supreme Court of India, but in the case of the right of the accused to DNA documents, relies on judgments from the UK.

The court rejected Talwars' plea to admit the narco of the three servants once suspected of the crime: these weren't admissible and neither were associated witnesses (such as the scientists who conducted the tests) relevant as witnesses, it said.

The Talwars have repeatedly been accused of trying to delay the trial (or, as the CBI sees it, the inevitable).

But the trial court has taken one word from an earlier Supreme Court order on the case rather seriously. That word is "expeditiously".  For instance, the trial court did not wait for Friday's order, the examination of defence witnesses continued as it was in the works, even though the list may now change.

The High Court observed: "The Trial Court has to be extremely cautious, careful and vigilant so that in the process of expeditiousness, element of fairness, due opportunity and justice is not sacrificed. The right of accused to put his best evidence can/should not be defeated in the name of expeditious trial. It is for this reason a Trial Court, while proceeding expeditiously, must have a proper balance so that simultaneously both the things may be maintained i.e. without deviating valuable right of defence to the accused."

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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