Walayar rape case: Kerala HC sets aside Trial Court’s acquittal order

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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: