A Division Bench comprising Justices A. Hariprasad and M.R Anitha has overturned the acquittal order of the accused persons in the case relating to the rape and suicide of two minor girls of the Dalit community in Walayar, Palakkad district, Kerala. The Bench has also ordered for a retrial.

It said, “Judgments passed by the 1st Additional Sessions Judge (Special Judge), Palakkad in S.C.Nos.396 of 2017, 397 of 2017, 399 of 2017 and 400 of 2017 are hereby set aside. The cases are remanded to the above Court for retrial and disposal.” The accused persons have been asked to surrender before the trial court by January 20, 2021.

The Bench was hearing an appeal filed by the State Government against the acquittal order of the Trial Court resulting in the Bench observing the lapses in the investigation. They were also “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, according to the High Court.

The judgment read: “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 Deputy 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.

“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 set up. It is high time that the State Government take up serious steps to educate and sensitize the Station House Officers to deal with such cases when reported directly to them. It is because the initial flaws may destabilize the whole case. It is a common experience that most likely the victims may approach them at the first instance.”

The Bench noted that the public prosecutor and the Judge egregiously failed to perform their duties. It said, “Faulty initial investigation and slipshod prosecution throughout are the established reasons prompting us to find that the trial was an empty formality”. Besides, lack of involvement by the trial Judge also contributed to a great extent in not digging out the true facts reducing the trial court proceedings to a “sham trial”, according to the court.

The Bench further observed that some material witnesses who deviated from their previous statements were not effectively cross-examined. “The witnesses who refused to support the prosecution case were not effectively cross-examined and their previous statements were not put in order to confront them. We find that the prosecutor miserably failed to confront the witnesses with their previous statements”, held the court.

The High Court took critical note of the trial judge’s failure to exercise his powers under Section 165 of the Evidence Act to discover or to obtain proper proof of relevant facts. Section 165 empowers the judge to ask any question he/she pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document.

“..it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished, but a Judge also presides to see that a guilty man who does not escape has been approved by the apex Court in many decisions”, said the court.

To improve judge’s capabilities to handle POCSO cases, the Division Bench also directed the Director, Kerala Judicial Academy to periodically arrange special training programmes for the Additional Sessions Judges handling POCSO cases in order to guide and sensitise them on the legal, social and psychological aspects involved in such cases.

The court also noted the politics involved in appointing prosecutors. It took the opportunity to remind the investigating and prosecuting agencies that their failures could lead to travesty of justice. It said, “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 happens before appointing public prosecutors for the District Judiciary. Many a time, suitability, integrity and merit are not regarded as the prime considerations.”

The judgment also reminded the State Government that they are a constitutional entity and that they are duty bound to appoint Government pleaders and public prosecutors in order to discharge their constitutional obligations to maintain law and order.

On January 13, 2017, a minor 12-year-old girl in Palakkad district’s Walayar was found hanging at her home. Later after 52 days, her 9-year-old younger sister was also found hanging. The autopsy reports revealed that the girls had been sexually assaulted multiple times and it was the prosecution’s story that the repeated torment led them to die by suicide.

The four accused (one of whom died last year in a suspected suicide case) were booked under charges of rape, abetment of suicide, unnatural sex under the Indian Penal Code and penetrative sexual assault under the POCSO Act. The Additional Sessions Judge had acquitted all accused as, in his opinion, the prosecution had failed to prove the offences and that there was no “direct evidence of sexual assault”.

A copy of the High Court judgment has also been marked to the Chief Secretary to the State of Kerala so that steps are taken to counter the concerns flagged by the Court over investigation and prosecution of such cases.

The judgment may be read here:

Related:

A Look into Kerala’s Double POCSO-Suicide Abetment Case
India Unsafe: The escalating heinous crimes against women

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Image: Jayshankar Menon

In a bid to fix quick responsibility following any acts of “terror”, the law enforcing agencies abduct persons deemed suspicious (the testimonies specifically point out to kidnapping or abduction by the police and not arrest), what follows is a media trial wherein the fourth estate act as faithful stenographers of the state. Thus public memory remains prejudiced and fixed onto that moment of televised castigation of people even before the trial has been concluded.

The media, investigating agency or the judiciary have no fear of any consequences and therefore they are able to implicate the innocent through the systematic abrogation of the criminal justice system. In institutionalising impunity, those who keep guard to defend the state from its ostensible predefined enemy continue to remain outside the purview of law even after a series of acquittals. Thus, the arbitrariness and lawlessness of those responsible for enforcing law gets exposed to show the inherent bias and throws light on routinisation of “wrongful prosecution” as a means to portray that the rule of law is being adhered to, even in extraordinary cases of terrorism. As opposed to the spectacle of arrest of an alleged terrorist, their discharge following a number of years, sometimes decades, is not considered a matter of importance. Their struggle largely remains invisibilised.

Taking cognizance of the above, India’s first People’s Tribunal on Acquitted Innocents was organized on October 2 at the Constitution Club of India to call attention to unrepresented and unheard voices of those wronged by the system. The Tribunal consisted of a jury headed by a retired judge, AP Shah along with other distinguished members from the legal fraternity as well as the larger civil society. This event was facilitated by Innocence Network India, which is an all India network of individuals and organisations facilitated and supported by JTSA, Quill Foundation, Peoples’ Campaign against Politics of Terror, Association for Protection of Civil Rights, Aman Biradari, Karvaan and others.

All testimonies revealed a sordid ordeal of brutal torture, the duress under which a confession is obtained, plantation and fabrication of evidence, long-drawn legal proceedings, hostility of jail inmates, constant humiliation and helplessness. The stigma of belonging to the family of a “terrorist” affected their families in ways which iis difficult to reverse. Their little kids were rebuked in school, their elderly parents had to arrange for their legal assistance despite their ailing health. The long wait to see their loved ones walk free took a toll on them.

Md. Nisaruddin was falsely implicated in 1994 and spent 23 years in jail before he was acquitted. His brother, Zahiruddin, who was accused in the same case, spent 14 years in jail. In their absence, their father, “passed away in distress, mother went into depression and the society shunned them.” This is not a one-off case of wrongful prosecution; there are others like them who have spent years languishing in jails, only to be acquitted later for the want of evidence. Senior journalist Iftikhar Geelani, Dr. Faarog Makhdoomi from Malegaon, Shoeb Jagirdar from Jalna, Md. Aamir Khan from Delhi, Dr. Md. Yunus, Haji Md. Salees, Syed Wasuf Haider from Kanpur, Sanauddin from Karnataka, Abdul Wahid and Zubair Ahmed from Maharashtra, who participated in the Peoples’ Tribunal, had similar heart-wrenching stories of abduction, torture, castigation and acquittal to tell.

In the Aurangabad Arms Haul Case, the main accused Adbul Wahid was a driver by profession. He was called to the police station for questioning and was later produced before the media as the man who drove the terrorists around in the city. It still surprised Abdul Azim that the policemen asked him to “rise up to the occasion and do something for his country”. When he resisted, his women relatives were brought to the police station and were threatened of sexual assault in his presence to obtain his signature on his “confession”. In most of the cases, the confession formed bulk of evidence against the accused which was obtained through custodial torture. Victims were subjected to numerous third degree methods of physical harm like electric shocks on private parts, water boarding, gassing, beatings, stretching of legs for a prolonged period of time.

Image: Jayshankar Menon

The narration of every case, brought out persisting struggle of everyday life which is spent amidst social isolation and continuous surveillance. The livid experiences of spending a number of years in incarceration takes a toll on victims and their families. Loss of livelihood opportunities accompanied by shrunken avenues of employment, loss of prime of their youth, multi-layered psychological effects of staying away from their families make it difficult for them to blend easily with the mainstream. The trials run into years and some of the accused have languished in jail for as long as 23 years; before they were acquitted. Their acquittal doesn’t mean a return to normalcy. Since there is no acknowledgement and recognition of the wrong done, their lives are caught in the interminable cobweb of suspicion and enduring struggles to build their lives and support their families.

Everyone present in the hall was moved during the tribunal by these personal accounts. In their preliminary observations, the jury emphasised on the need to fix criminal culpability on investigative officers for wrongful prosecution and that this provision must be made to supersede Section 197 of the CrPC that requires sanction from government departments before a case can be registered. Further, they also pointed out to the systematic ways in which, the entire prosecution process is oriented towards implicating persons from a minority community. They stressed upon the urgency for creating a legislative framework in consonance with India's commitment to ICCPR's article 14 (6) which states that:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

Impunity is not only political and legal, but also moral. The public at large remains detached from the outcome of these cases which contributes to the continuing ostracisation of the victims. Knowledge and public recognition of what happened is important for individual closure. The Tribunal was an effort to publically acknowledge the innocence of these men who were at the receiving end of systematic and institutional prejudice. Through recognising the harm done, the Tribunal sought to make not only the state accountable, but also put onus on the society to orient themselves towards shaping their lives in a holistic manner. It brought out that by dusting off their responsibility of rehabilitation, reparation and fixing culpability for wrongful prosecution, the state and its agencies are wanting to keep a community in the shade of criminalisation.
 
(Surya Ghildiyal completed her MA in Conflict and Peace Studies from Jamia Millia Islamia in 2014 and currently works in the development sector. 

Preetika Nanda completed her MA in Conflict and Peace Studies from Jamia Millia Islamia in 2014. She is currently researching and documenting mass enforced disappearances during the decade-long conflict in Punjab.)

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