No just society can allow unnatural deaths, especially of two young girls found to have been sexually abused, to remain a mystery. Yet the agencies—the entire system—responsible to protect and provide justice, failed them. REJIMON KUTTAPPAN reports from Thiruvananthapuram on the Kerala High Court taking them to task.
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“[The] sob story [that] 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.”
With these words begins the scathing verdict of the Kerala High Court delivered on Wednesday, in which Justices A Hariprasad and MR Anitha ordered a retrial of the shocking 2017 Walayar rape-deaths. The court has asked the [alleged] culprits to surrender before the [special] trial court on 20 January.
Justice A. Hariprasad and Justice M. R. Anitha.Unsparing in their criticism of the entire policing and justice machinery, the judges have held that the Kerala Police conducted a “faulty initial investigation and slipshod prosecution” ever since the deaths came to light. These glaring failures are so apparent from the record of evidence and proceedings that the judges have termed the trial an “empty formality”.
Even the trial court judge, the High Court has held, contributed to the miscarriage of justice to “a great extent”.
The crimes that took Conscience
In early 2017, in two incidents separated by 52 days, two sisters aged 13 and nine belonging to a Dalit family, who were sexually abused, were found hanging in their makeshift home in Walayar, a Tamil Nadu-Kerala border town located in Palakkad district in Kerala.
It was the younger sister who found her sibling hanging on 13 January 2017. Even though the post-mortem report of the older sister mentioned that she had been sexually abused, the file was “closed”, stating the cause of death as suicide.
Two years later, in October 2019, the Dalit parents of the children were dealt another blow when the Protection of Children from Sexual Offences (POCSO) court in Palakkad acquitted the accuse. The court held the prosecution was unable to prove the accused had committed the heinous crimes.
Initially, there were seven accused in the case. Four were acquitted. The third was freed due to lack of evidence on 30 September 2019. A few days later, three of them were released from judicial custody.
On Wednesday, the High Court pulled up the investigating team, the prosecutor and even the judge of the POCSO court.
Egregious, inexcusable derelictions
In the words of the High Court judges, two important functionaries in the criminal trial egregiously failed to perform their duties: the investigating agency and the prosecution team, while the trial judge also failed to draw conclusions from the evidence placed before it.
On the role of the police officers responsible for the investigation, Justices Hariprasad and Anitha said, “[The] Deputy Superintendent of Police, the investigating officer who was deputed to investigate these cases almost a week after the younger girl’s death [in March 2017], could not gather any proper scientific evidence.”
We don’t believe that four daily-wage workers, the culprits, have the power to influence the prosecution, investigating officer and the trial court judge. We suspect a bigger conspiracy. We doubt the Deputy Superintendent of Police’s sincerity
The judges said, “Materials on record indicate that the poor girls were living in an unsafe family environment. We can visualise the predicament…[of] the unfortunate children… An incompetent and insincere police officer is a disgrace to the whole police force in the state.”
The court held the political and bureaucratic executive to account as well, saying it is “high time” they address the inexcusable flaws that permeate investigations, even of serious offences, and which brings “disrepute” to the administration. “It is high time that the state government takes up serious steps to educate and sensitise the Station House Officers to deal with such cases when reported directly to them. It is because the initial flaws may destabilise the whole case. It is a common experience that, most likely, the victims may approach them at the first instance,” the judges added.
Prosecution failures
The judges said that the appellate court cannot shirk its responsibility to intervene to set things right once it is established that those responsible to conduct a criminal trial unjustly failed to perform their assigned roles. “We have no hesitation to hold in the facts and circumstances of the cases, as borne out from the records, that the accused cannot be clinging on to the unmerited acquittals in sham trials,” they said.
Additionally, the judges said that they are “in complete agreement with the prosecution case that utter failure on the part of the trial prosecutor to adduce proper evidence has resulted in unmerited acquittals, making justice a casualty.”
Further, the High Court reminded the trial court judge 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 does not escape”, as the apex court has ruled many times over.
“The government has said it will stand with us, but it gave the [same] Deputy Superintendent of Police who failed [to investigate the deaths properly] a promotion. We need a CBI probe in the case. We will fight for it,” said the victims’ mother.
Concluding their verdict, the judges reminded the investigating and prosecuting agencies that a failure of such magnitude is “a travesty of justice”. They said it is the “bounden duty” of a welfare state to see that the rule of law prevails. “It is the unshirkable responsibility of the state government to establish and maintain honest, efficient, effective, and skillful investigative machinery and prosecuting agency. They shall be committed to truth alone.”
CBI probe
Meanwhile, Prem Babu, a social activist who has been fighting for justice for the Walayar children along with other like-minded people, said they are not going to end their fight here. “We don’t believe that four daily-wage workers, the culprits, have the power to influence the prosecution, investigating officer and the trial court judge. We suspect a bigger conspiracy. We doubt the Deputy Superintendent of Police’s sincerity,” Prem told The Leaflet, adding that a CBI investigation should be done under the supervision of the Kerala High Court.
Prem and other like-minded people, under the “Justice for Walayar Kids Forum”, had carried out a 200-day march and sit-in at the Kerala Secretariat in 2019 and 2020 seeking proper investigation and trial into the two deaths.
Talking to The Leaflet, CR Neelakantan, another campaigner fighting for justice for the young girls, said that the mother of the victims would soon approach the court for reinvestigating the rape-murders. The victims’ mother told the media she does not trust the Kerala government will provide justice.
“The government has said it will stand with us, but it gave the [same] Deputy Superintendent of Police who failed [to investigate the deaths properly] a promotion. We need a CBI probe in the case. We will fight for it,” said the victims’ mother.
Since 2016, POCSO cases have been on the rise in Kerala. Statistics show 2,122 cases under the provisions of the Act in 2016, but the incidence rose to 2,697 in 2017. There was a further uptick to 3,179 in 2018 and 3,602 in 2019. And, according to Kerala Police data, 1,746 POCSO cases were registered in the state till July 2020.
(Rejimon Kuttappan is an author and independent journalist based in Thiruvananthapuram. The views are personal.)
