Walayar Rape-Death Cases : Kerala High Court Sets Aside Trial Court Judgment Acquitting Accused; Orders Re-Trial

The Kerala High Court on Monday ordered re-trial in the case relating to the rape-death of two minor girls of Dalit community in Walayar, Palakkad district.

Allowing the appeals of the State Government, a division bench comprising Justices A Hariprasad and MR Anita set aside the acquittal of the accused.  The accused have been asked to surrender before the trial court on January 20. The HC has also given liberty to the prosecution to seek further investigation in the case. One of the four accused, Pradeep Kumar, had died last year in a suspected suicide. Valiya Madhu, Kutty Madhu and Shibu are the remaining three accused.

The Court directed the trial judge to permit the parties to adduce additional evidence.

The High Court observed that there were lapses in the investigation, prosecution and also in adjudication.

"We are constrained to observe that the initial part of the investigation in the cases was utterly disgusting. The investigating officer, who was deputed to investigate these cases almost a week after the younger girl's death, failed to gather any proper scientific evidence", the HC judgment said.

Perfunctory initial investigation, unskilled prosecution, lack of involvement by trial judge

"...we are fully convinced that the perfunctory initial investigation and cursory, desultory and unskilled prosecution coupled with the lack of involvement by the trial Judge resulted in miscarriage of justice and the consequential unmerited acquittals in all these cases. Certainly, the fact situations in these cases reveal extraordinary circumstances requiring extraordinary remedies. Therefore, we have no hesitation to hold that trial in all the above Sessions Cases have been lowered to the level of mock trials", the court said.

The material witnesses who deviated from their previous statements were not effectively cross-examined.

"Although in some cases the prosecutor had put some vague questions under Section154 of the Evidence Act with the permission of the court, we find that the prosecutor miserably failed to confront the witnesses with their previous statements", the judgment authored by Justice Hariprasad noted.

Judges handling POCSO cases must be given training

The Court also noted that the trial judge did not show active involvement in the case. Therefore, the HC has given a direction to the The Director, Kerala Judicial Academy shall to periodically arrange special training programmes for the Additional Sessions Judges handling POCSO cases in order to guide and sensitize them on the legal,social and psychological aspects involved in such cases.

"We are disheartened to note the manner in which the learned Judge conducted the trial. He failed to perform a proactive role at the time of taking evidence", the judgment stated.

Criticizes trend of appointing prosecutors on political considerations

The Court also directed that the judgment should be forwarded to the Chief Secretary of the Government of Kerala to avoid such serious flaws in investigation and prosecution.

The Court lamented that prosecutors are often selected on political considerations overlooking merit.

"Notoriously well known is the fact that the successive Governments make appointments to the posts of public prosecutor and additional public prosecutor mainly considering their political leanings and affinity towards the ruling dispensation. It is a matter of concern that no effective consultation with the District and Sessions Judges happen before appointing public prosecutors for the District Judiciary. Many a time, suitability, integrity and merit are not regarded as the prime considerations. Appointments of Government pleaders and public prosecutors,including the special public prosecutors, can never be regarded as part of any social welfare scheme of the State Government so as to benefit a particular class of advocates disregarding their suitability, merit, integrity and capability.In other words, such posts are not intended to provide employment to the favourites of the ruling dispensation on extraneous considerations. State Government is a constitutional entity and it is duty bound to remember that they are appointing Government pleaders and public prosecutors to discharge their constitutional obligations to maintain law and order".

Case Background

In October 2019, a Special POCSO Court at Palakkad had acquitted four persons who were accused of rape and murder to two sisters, aged 13 and 9. The acquittal verdict had caused much outrage in the Kerala civil society, with serious criticism of miscarriage of justice during trial.

The elder sister, aged 13, was found hanging in her house on January 13, 2017. Within two months, the younger sister, aged 9, was also found hanging in her house on March 4, 2017. Both of them belonged to Scheduled Caste community. As per the postmortem reports, both the girls were subjected to sexual assault. The autopsy report in the case of the younger girl even suggested the possibility of homicidal hanging.

The police however did not explore the angle of murder, and final report was submitted against four accused - V Madhu, M Madhu, Shibu and Pradeep Kumar- for offences of abetment of suicide, rape and unnatural sex under the Indian Penal Code and penetrative sexual assault under the POCSO Act. According to the police, the girls committed suicide due to intolerable sexual assault by the accused persons.

The trial court observed that the prosecution "miserably failed" to prove the offences against the accused. It was held that there was no "direct evidence of sexual abuse". The trial court also held that there was no evidence to conclude that the deaths were homicidal(Detailed reports about the trial court judgment may be read here, here and here).

Pradeep Kumar, one of the accused who was acquitted by the trial court, was found dead in his house last November, in a suspected case of suicide.

Also Read : Walayar Rape-Death Cases : When Criminal Justice System Failed To Deliver

Terming the trial court's judgment "absolutely perverse and unsustainable", the Government in appeal has contended that the court erred in disbelieving the eyewitness accounts of the parents of the victims regarding the accused committing unnatural sex on the girls.

"The lower court seriously erred in disbelieving the eyewitness accounts of the parents of the victims and even disbelieved the testimony of the girls' mother.", the appeal stated.

"The trial court ignored the fact that the unfortunate parents of the victims were mere rustic witnesses belonging to the scheduled caste community and their testimonies should have been tested on the touch stone of their illiteracy".

The appeal has also mentioned that the "prosecution could establish the guilt of the accused beyond reasonable doubt by clinching evidence of prosecution witnesses, including the parents of the girl." The trial court also did not take into account Section 29 of the POCSO Act, which calls upon the court to draw a presumption of guilt against accused in child sex abuse cases.

The appeal also criticized the Sessions Court for playing a passive role in the trial.

"The learned Sessions Judge ought to have noticed the lapses of the Special Prosecutor during the trial instead of acting as a mere spectator and has to elicit facts from the witnesses".

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