[Walayar Rape] Faulty investigation, slipshod prosecution, sham trial resulted in unmerited acquittal of accused: Kerala High Court

The Court has now overturned the acquittal of all three living accused in the case, which involves the sexual assault and suicide of two minor sisters from Walayar, Kerala.
[Walayar Rape] Faulty investigation, slipshod prosecution, sham trial resulted in unmerited acquittal of accused: Kerala High Court
Justice A Hariprasad and MR Anitha

Mincing no words about the utter failure of the prosecution and the sham trial undertaken by the trial court, the Kerala High Court on Wednesday quashed the acquittal of all the men accused in the Walayar rape case which involved the sexual assault and suicide of two minor sisters (State of Kerala v. Madhyu @ Kutti Madhu and ors).

Justices A Hariprasad and MR Anitha further underscored that cases involving the sexual assault of children of tender age, more so when they hail from socially and economically weaker classes, should be handled with utmost care and caution. Child abuse and inexcusable indifference to the crime are among the gravest social evils in society, the Court added.

In this case, the Court was aghast to find that both the trial prosecutor and judge had "egregiously failed to perform their duties", reducing the trial court proceedings to a sham trial.

"... 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 High Court opined.

The Court found that the trial prosecutor had utterly failed in adducing proper evidence, which resulted in "unmerited acquittals making justice a casualty." She gave up on her witnesses without applying her mind and was half-hearted and insincere in the conduct of the case, the Bench remarked.

Further, the 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.

"... 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 does not escape have been approved by the apex Court in many decisions," the Court said.

The Court proceeded to set aside the trial court's acquittal against the accused in this case, pointing out that the acquittal of the accused persons cannot be said to be solely due to want of adequate evidence but was mainly because of the dereliction of solemn duty bestowed on the functionaries in the trial process.

Invoking its powers under Section 386 of the Code of Criminal Procedure, the Bench directed a re-trial of all the cases, to which end the accused are to surrender before the trial court on January 20.

"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 Court added that the prosecution can adduce additional evidence in the matter, if required, for the effective and meaningful conduct of the trials.

Notoriously well known that prosecutors are appointed considering their political leanings

Before parting with the matter, the High Court also took the opportunity to remind the investigating and prosecuting agencies that their failures could entail a travesty of justice.

The Court proceeded to emphasise that the State government has an unshirkable responsibility to maintain honest, efficient and skilful investigative and prosecuting agencies. In this backdrop, the Court also expressed its reservations over the appointment of prosecutors based on their political leanings.

"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", reads the judgment.
Such posts (of prosecutors) are not intended to provide employment to the favourites of the ruling dispensation on extraneous considerations.
Kerala High Court

The Court 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 sensitize them on the legal, social and psychological aspects involved in such cases.

The Bench added that police officers, particularly Station House Officers, must be senstitised on how to handle such cases, given that victims first approach these officers and initial flaws may destabilize the whole case.

A copy of the judgment was also marked to the Chief Secretary to the State of Kerala so that steps may be taken to counter the concerns flagged by the Court when it comes to the investigation and prosecution of such cases.

[Read Judgment]

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