Walayar Rape Deaths : Reasons Stated By POCSO Court For Acquitting The Other 3 Accused [Read Judgments]

The copies of the judgment pronounced by the First Additional Sessions Court, Palakkad on October 25 acquitting three accused in the rape-deaths of Walayar sisters was released on Friday.

The case pertained to death of two sisters, who were subjected to sexual offences. The elder sister, aged 13, was found hanging in her one-room house on January 13, 2017. Two months later, the younger sister, aged 9, was found hanging in her house on March 4, 2017.

According to the police, the girls committed suicide due to intolerable sexual assault by the accused persons.

There were five accused in the case, including a juvenile. 

In the case of first sister, the police had filed chargesheet against all the accused - Pradeep Kumar, Valiya Madhu, Kutty Madhu, Shibu and the juvenile 

Three out of them - Pradeep Kumar, Valiya Madhu and the juvenile - were chargesheeted in the case of second sister. Separate proceeding against the juvenile accused is pending before the Juvenile Justice Board.

Pradeep Kumar was acquitted in both the cases by the trial court as per judgments delivered on September 30.(Reports about those judgments may be read here and here).

The reasons cited by the Sessions Court for acquitting the remaining accused are mentioned below.

Valiya Madhu in the case of first sister

The accused in this case was chargesheeted for abetment of suicide and unnatural sex without consent under Indian Penal Code and penetrative sexual assault under POCSO Act

To establish that the accused had sexually abused the girl, the prosecution relied on the following evidences :

• The step father of the girl, who was examined as PW5, testified that one day he saw the accused committing unnatural sex on the girl.
• The mother of the girl, who was examined as PW6, testified that one day she saw the accused molesting the girl.
• Grandmother of the girl, who was examined as PW7, said that she saw the accused misbehaving with the girl (But she turned hostile during trial)
• A friend of the girl, who was examined as PW8, deposed that she had told her about the accused abusing her.

The Court however disbelieved the eye witness accounts of the step-father and mother of the victim.  In their initial statements given to police, they had not mentioned about them witnessing the sexual abuse of the victim by the accused. According to the judge, it was only in the statements recorded by the new investigating officer, who took over the probe after the death of second girl in March 2017, that they mentioned about the sexual abuse by the accused.

The Court did not take into account their explanation that they had suppressed the incident out of concern for the welfare of the girl. 

"If PW5 and 6 are really bothered about the welfare of the daughter, definitely they would have taken action against the accused, at least after the death of the victim", judge Muralee Krishna S noted in the judgment.

The Court also said that there were contradictions in their statements regarding the time of witnessing the sexual abuse by the accused.

The Court expressed that there were possibilities for manipulation of their witness statements after the investigation was taken over by DySP M J Sojan.

The evidence of PW8 was discarded by court as hearsay evidence. The Court said that the principle of res gestae under Section 6 of the Indian Evidence Act was not applicable to her evidence, as the disclosure by the victim was not contemporaneous with her death. The disclosure made by the victim girl to PW8 is not admissible as dying declaration under Section 32, as the statement was not made in anticipation of death, the Court said.

The statement made by the doctor who conducted the post-mortem in the cross-examination that the anal injuries of the girl need not be necessarily caused by penetration but also could be due to piles infection titled the balance in favour of the accused.

The Court also observed that there was no scientific evidence to connect the accused to the crime.

Click here to read the judgment in this case

Kutti Madhu in the case of elder sister

The accused in this case was chargesheeted for abetment of suicide and sexual assault.

Kutti Madhu was a relative of the mother of the girl. 

The mother of the girl, as PW4, deposed that the accused had stayed at their home one night after the birthday celebration of the younger sister. That night, when she woke up hearing some noises, she happened to see he attempting to disrobe the elder sister. She immediately beat him up with a broom and ousted him from home.

The step father of the girl, as PW3, told the Court that he had seen his wife beating the accused with broom that day. When enquired about the reason, his wife told him about the perverted act of the accused.

The Court however discarded their evidence. It said that these incidents were not found in their statements given to the first investigating officer. 

"The evidence given by the investigating officers and the contradictions admittedly there in the statements of PW3 and P4 in the form of material omissions would show that they have made substantial improvements in their depositions before the court and that creates a serious doubt about the truthfulness and credibility of these witnesses", the Court said.

The Court also said that the cross-examinations of the witnesses showed that even after the death of the first daughter, PW3 and 4 used to keep close contact with the accused.

The circumstances created doubts regarding the genuineness of the belated statements given by them to police, said the Court. 

"A criminal case cannot be decided on the basis of probabilities. There should be cogent evidence, which unerringly pointing towards the guilt of the accused. Such evidence either by way of direct evidence or by way of circumstantial evidence is absent in this case", the trial Court observed.

Click here to read the judgment in this case

Shibu in the case of elder sister.

Shibu was accused of abetment of suicide and sexual assault of the girl.

The main evidence relied on by the prosecution was the confession stated to have been made by the accused to the step-father about having sexually assaulted the girl. This confession was stated to have been made after the accused consumed alcohol along with the step father on a day after the death of the second daughter.

The Court however did not gave value to this testimony. The Court said that the step-father did not mention about this confession to the first investigating officer. 

Therefore, the Court held that the extra-judicial confession was not believable and acceptable.

Click here to read the judgment in this case

Valiya Madhu in the case of younger sister

Valiya Madhu, a relative of the victim's mother, was an accused in the case of the elder sister as well.

In the case of younger sister, the doctor had opined in the postmortem report that the possibility of homicidal suicide cannot be ruled out, considering the age of the victim and her height.

However, the police investigation did not explore this angle, and the case was chargesheeted as one of suicide.

The Court observed that the girl might have used the broken chair or wooden cot in the room to fix the ligature from the rafter of the house.

Prosecution relied on the evidence of mother and father of the victim to argue that since their elder daughter was sexually abused by the accused,  there is a possibility of commission of such an offence against the younger daughter also.

The Court did not accept this argument, as it felt that the witnesses were not credible. The chances of witnesses being manipulated after the investigation was taken over by the new investigating officer are also there, observed the Court.

"It is clear that in the chain of circumstances only two circumstances are proved by the prosecution. First one is that the accused is a relative of the victim girl and the second one is that the accused had an opportunity to commit the offence against the victim girl, either when she had visited the house or when the accused visited the house of the girl. But there is absence of any other circumstance to link the accused with the commission of the alleged offences. Therefore, I have no hesitation to hold that the prosecution has miserably failed to prove the alleged offences against the accused beyond reasonable doubt", concluded the Court

Click here to download the judgment in this case

Read the judgment in the case of V Madhu 

Read the judgment in the case of Shibu

Read the judgment in the case of K Madhu

Read the judgment in the case of V Madhu in the case of younger sister