CBI judge’s ap­proach draws flak

The Times of India (New Delhi edition) - - TIMES CITY | AARUSHI VERDICT - Ab­hi­nav.Garg@ times­group.com

New Delhi: While over­turn­ing the CBI court’s con­vic­tion of Ra­jesh and Nupur Tal­war for the mur­der of their daugh­ter Aarushi and do­mes­tic help Hem­raj Ban­jade, Al­la­habad high court was highly crit­i­cal of CBI judge Shyam Lal and de­voted a sep­a­rate opin­ion to com­ment upon his “style and ap­proach”. The high court said that the judge had “as­sumed fic­tional an­i­ma­tion of in­ci­dent as to what ac­tu­ally took place inside and out­side Flat L 32, Jal­vayu Vi­har”, in which the mur­ders had taken place.

The bench listed the se­ries of er­rors, mis­steps and “fan­ci­ful whim” of the trial judge in a sep­a­rate10-page opin­ion writ­ten by Jus­tice A K Mishra as part of the 273-page judg­ment de­liv­ered on Thurs­day. The high court stressed that a trial judge “is sup­posed to be fair and trans­par­ent and should act as a man of or­di­nary pru­dence and he should not stretch his imag­i­na­tion to in­fin­ity ren­der­ing the whole ex­er­cise mock­ery of law”.

And yet, the court said, judge Lal had “pre­judged things in his own fash­ion, drawn con­clu­sion by em­bark­ing on er­ro­neous anal­ogy con­jec­tur­ing to the brim on ap­par­ent facts telling a dif­fer­ent story pro­pelled by vit­ri­olic rea­son­ing”.

Jus­tice Mishra com­pared the CBI judge to a film direc­tor for try­ing to “thrust co­her­ence amongst facts in­alien­ably scat­tered here and there but not giv­ing any co­her­ence to the idea as to what in fact hap­pened”. The 10-page opin­ion also likened judge Lal to a math­e­mat­ics teacher solv­ing a prob­lem. “The learned trial judge took ev­i­dence and cir­cum­stances for granted and tried to solve it like a math­e­mat­i­cal puz­zle when one solves a given ques­tion and then takes some­thing for granted in or­der to solve that puz­zle and ques­tion,” the opin­ion noted.

The high court bench held the cir­cum­stan­tial ev­i­dence against the Tal­wars was in­suf­fi­cient to hold them guilty, and that they should have been given the ben­e­fit of doubt. Jus­tice Mishra said the trial judge con­victed them with­out con­sid­er­ing that in cases re­lated to cir­cum­stan­tial ev­i­dence, "things can­not be pre­sumed and stuffed in a man­ner like the present one by ad­her­ing to self-cre­ated pos­tu­lates then to roam inside the cir­cle with all fan­ci­ful whim".

Jus­tice Mishra pointed out that in all crim­i­nal tri­als, the analo­gies had to be drawn and con­fined within the do­main and realm of the ev­i­dence avail­able, and said the trial judge had been “un­mind­ful” of the ba­sic tenets of law and its ap­pli­ca­bil­ity, and had, there­fore, “failed” to prop­erly ap­praise facts and eval­u­ate ev­i­dence.

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