Vandiperiyar Rape & Murder Of Minor Girl : Kerala Court Acquits Sole Accused Citing Lack Of Evidence, Defects In Investigation

The Court found that the prosecution case was entirely based on circumstantial evidence and they were unable to establish circumstances to prove the guilt of the accused. It also pointed out defects in the investigation of the case.

Noting that the prosecution failed to prove the case against the accused, Kattappana POCSO Court, Special Judge Manju V. found the accused not guilty and acquitted him.

“In the result, the accused is found not guilty for the offences punishable u/s.449, 376(2)(n), 377, 376A, 376AB, 302 of Indian Penal Code and u/s.5(i), (j)(iv), (l) and (m) r/w s.6 of Protection of Children from Sexual Offences Act and he is acquitted u/s.235 Cr.P.C.”

BACKGROUND FACTS

The prosecution allegation was that the accused on several days sexually assaulted the minor victim at her residence. On 30^th June 2021, it was alleged that the accused criminally trespassed into her residence and committed penetrative and carnal sexual assault on the victim. It was alleged that as the victim became unconscious, out of fear that she would reveal the incident, the accused using a shawl hanged her and thereby committed murder.

On the other hand, the defence case was that the death of the child was accidental which occurred due to playing with the shawl. It was alleged that the accused was falsely implicated by the police.

The family of the victim were Estate workers in Vandiperiyar, Idukki who lived in a lane building and the accused also resided in an adjacent room in a nearby lane building.

The accused was charged under Section 449 (house trespass to commit offence punishable with death), 376(2)(n) (punishment for committing rape repeatedly on same woman), 377 (unnatural offences), 376A (punishment for causing death by rape), 376AB (punishment for rape on woman under 12 years of age), 302 (punishment for murder) of the Indian Penal Code and under Section 5 (aggravated penetrative sexual assault) r/w Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act.

The Court ruled out the possibility of suicidal hanging and held that the victim who was of such a tender age cannot think of committing suicide. It further held that the injury on the private parts of the victim proved recent sexual assault and stated that the prosecution proved that the death of the victim as homicidal.

CIRCUMSTANTIAL EVIDENCE AND OBSERVATIONS OF COURT

It noted that the prosecution has entirely relied upon circumstantial evidence to prove their case. The various circumstances meted out were as follows:-

(i) Accused lured the victim using chocolates and by giving his mobile phone to play games

(ii) Statements given to police and subsequent discovery

(iii) Scientific evidence

(iv) Previous and subsequent conduct of the accused

The Court found that the prosecution could not prove that the accused purchased chocolates to give to the victim on the alleged day of the incident. It noted that the statement of the accused did not lead to the discovery of new facts admissible under Section 27 of the Evidence Act. The Court noted that scientific evidence collected in the case was not sufficient to prove the guilt of the accused.

The Court stated that mere statements made by the accused to the prosecution witnesses would not amount to relevant conduct under Section 8 of the Evidence Act. It noted that the conduct of the accused was not sufficient to show guilt to prove that he committed the alleged crime. The Court stated, “Thus the conduct of the accused in the above case by itself is not a ground to find the accused guilty of the offences alleged against him”.

The court stated that there were no eyewitnesses and that the prosecution case was completely based on circumstantial evidence. Relying upon the Apex Court decision in Sharad Birdhichand Sarda v. State of Maharashtra (1984) and the Kerala High Court decision in Ubaidu v. State of Kerala (2015), the Court held that the prosecution failed to establish the guilt of the accused based on circumstantial evidence.

“Thus in case resting on circumstantial evidence, the prosecution must establish a chain of unbroken events unerringly pointing to the guilt of the accused and none other. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. Taking all the circumstances into account discussed above, I came to the finding that in this case the prosecution failed to establish all the circumstances which are consistent with the guilt of the accused and inconsistent with his innocence.”, the Court stated.

DEFECTS IN INVESTIGATION

The Court also pointed out various defects in the investigation of the case and stated that the investigating officer failed to reach the residence of the victim to collect first-hand evidence without delay.

“This is a case in which a small child aged below 6 years was cruelly done to death and the wrongdoer has to be booked for the injustice done to the child and her family. In cases of unnatural death, it is the bounden duty of the investigating officer to reach the place of occurrence without any delay and to inspect the premises and to collect all evidence and notice every minute details with care and caution till the mystery is unravelled.”

It pointed out many defects committed by the investigating officer during the investigation of the case including failure to collect important evidence from the scene of occurrence. It noted that the investigating officer did not collect chance fingerprints from the victim's residence which was a serious lapse in the investigation. The Court also noted that the investigating officer collected material objects in an unpacked and unsealed condition which could lead to tampering with the evidence. It held thus:

“Thus I find that adopting lethargic attitude throughout the investigation and unscientific way of collecting of evidence without showing the shrewdness and intelligence reasonably expected from an investigating officer, seriously affected the prompt and timely collection of evidence in the case.”

Further, the Court also noted that the investigating officer did not investigate all possible angles available in the case. Accordingly, the Court found that the accused was not guilty and acquitted him.

Counsel for the complainant: Special Public Prosecutor M Sunilkumar

Counsel for the accused: Advocates S. K. Adhithyan, V. Jyothi Sagar, Keerthi S. Jyothi, Diveena Sasidharan

Case title: State of Kerala v Arjun

Case number: Sessions Case No: 474/2021

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