KOCHI: The Kerala High Court on Wednesday set aside the order of Palakkad Special Court acquitting all the accused in the case relating to the death of two minor Dalit siblings at Walayar in Palakkad. The cases are remanded to the Special Court for re-trial and disposal.
The court directed the accused to appear before the trial court on January 20.
The case involved the death of two girls, aged 13 and nine, who were found hanging inside their one-room home 52 days apart -- elder girl on January 13, 2017. The post-mortem examinations had confirmed that the minors were subjected to sexual assault before their deaths.
While allowing the appeal filed by the state government and the mother of the victim to challenge the special court order, the Bench comprising Justice A Hariprasad and Justice MR Anitha held that the prosecution can file an application before the Special Court under section 173 (8) of CrPC, if required.
The trial Judge should, in all cases, permit the prosecution and if sought for the defence also, to cite fresh evidence in the form of oral or documentary evidence. The Director of Kerala Judicial Academy shall 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, held the court.
The court observed that abhorrent child abuses and inexcusable indifference to the crime are some of the gravest social evils prevalent in the present society. "A child can be abused in many ways. Mental, physical and sexual abuses are some of them. Multi-dimensional complexities of human life, misuse of social media platforms and changed socio-economic conditions expose the children to new and different forms of abuse. It includes causing mental and physical injuries, neglecting, blaming, forced sexual serfdom, incest exploitation, etc. Child abuses take place in their homes, schools, orphanages and residential care facilities. Even on the streets, in workplaces and in prisons to such violations occur. Violence in any form will cause a deep impact and leave an indelible scar in the mind of the child. Child abuse results in real or potential harm to the child's health, personality development and dignity," the court noted.
The sob story unfolded from the records in these cases utterly shock our conscience. It ought to have been so for the investigator, the prosecutor and the trial court too. "Unfortunately, two tender aged girl children, who are uterine sisters, departed from this world unavenged for the inexpiable sins done to them by those who should have been taking care of them," the court said.
The mother of two minor girls had submitted that the court acquitted that accused persons, who were charge-sheeted for rape and abetment of suicide, disbelieving the eye witness accounts. The trial court dealt with the case in a most casual manner and it failed to take an active role in the trial process to ensure that a fair trial was conducted. Though this was a real case of murder, the investigating agency had to succumb to the political pressure and obey its political masters to pave the escape route for their members.
"We are constrained to observe that the initial part of the investigation in these cases was utterly disgusting. Despite a reasonably good job done by the Dy.S.P., the investigating officer, who was deputed to investigate these cases almost a week after the younger girl's death, he could not gather any proper scientific evidence. Materials on record clearly indicate that the poor girls were living in an unsafe family environment. We are able to visualize the predicament in which the unfortunate children could have been placed. Whom to be trusted?" the court said.
"An incompetent and insincere police officer is a disgrace to the whole police force in the State. It is high time for the political and bureaucratic executive to understand that inexcusable flaws in the investigation into serious offences will only bring disrepute to the administrative setup," the order said.
"We are disheartened to note the manner in which the Special Judge conducted the trial. He failed to perform a proactive role at the time of taking evidence. We deem it fit to remind the investigating and prosecuting agencies that their failure to such a magnitude will be a travesty of justice," observed the court.
There were five accused in the case and a separate charge sheet had been filed against each accused. However, all the accused were acquitted by the trial court. Madhu alias Valya Madhu, Madhu alias Kutti Madhu, Shibu and Pradeep Kumar are the accused in the case. However, Pradeep died by suicide when the case is pending before the High Court.
In the appeal, the state submitted that it was crystal clear that there was no coordination between the investigating agency and the prosecutor to have a successful prosecution. Though the forensic surgeon who conducted the postmortem examination of the elder girl opined that the chance of homicide has to be ruled out, the investigating officer has not made any serious effort for completely ruling out such possibility. "It is to be noted that one of the accused in the series of cases has even complained the police expressing doubt that the death of the victim was a homicide," pointed out by the government.
The trial conducted before the trial court was extremely erroneous and perverse. The statement of key witnesses has recorded under section 164 of CrPC during the investigation stage and produced before the trial court. But none of those statements was used by the prosecutor with oblique motive, to contradict the hostile witnesses or to corroborate the supporting witnesses.
Timeline of Walayar case: