On Wednesday, the Kerala High Court delivered judgement in a child sexual abuse case that utterly shocked the court. The judgment focused on the graveness of the crime and the importance of adequate functioning of public machinery in cases of child sexual abuse.
Two sisters aged 13 and 9, committed suicide at the beginning of the year 2017. The elder girl was born from her mother’s first marriage; after which she remarried Shaji, her second husband, and the younger girl was a result of this marriage.
The 13-year-old was found hanging on 13th of January 2017, from the roof of their shed where they lived in Palakkad District. The matter was reported by her cousin on the same day and a F.I.S was registered. After a preliminary investigation, the body was sent for postmortem. Three months later, on 4th February 2017, the younger girl also committed suicide in the same manner as her sister; and another F.I.R was registered upon the incident being reported by the neighbours.
After a massive public outcry, the Additional Director General of Police took over the investigation, two days after the death of the younger girl. Until then, there was no meaningful investigation in the death of the elder child.
Thereafter, four separate crimes were registered implicating four accused persons, namely, Valiya Madhu, Shibu, Kittu Madhu and Pradeep Kumar held under various sections of IPC and POCSO Act. Along with that, accused 2 and 4 (Shibu and Kumar respectively) were also held under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act). The crimes were like that of sexual offences such as rape, unnatural offences, aggravated sexual assault; house trespassing and abetment in suicide.
The Special Court tried all the cases separately and all four accused were acquitted by separate judgements. It was noteworthy that all the judgments were pronounced on the same day. Aggrieved by the decisions of the Special Court, the State along with the mother of the victims, appealed to the HC of Kerala in 2019.
However, accused 4 (i.e Kumar) died during the pendency of the appeals and thus, the appeals against his acquittal were abetted.
Both cases revealed that the death was indeed due to hanging by suicide. However, evidence of forced sexual assault and carnal (anal) intercourse was found on both bodies. It was clear from infection on the private areas of the victims that both had been subjected to severe sexual abuse.
Proceedings before the Court:
1. Submissions by the Prosecutors:
The learned counsel appearing before the court on behalf of the State/Respondent submitted that the Special Court had committed a gross miscarriage of justice. This was due to shortcomings from the investigators, prosecutors and lack of concern by the court in handling the case.
The earlier prosecutor had played a perfunctory role on her part in such a grave case. The trial court had failed on its part by remaining as a “mute spectator”. They prayed for setting aside the acquittal judgements and remanding the cases for fresh trials, after affording the investigating agency to conduct a deeper probe in the cases.
2. Counsel for the accused:
The counsel strongly advocated against granting a fair trial, by stating that the failure of taking proper evidence by the previous prosecutor cannot be taken as a reason. It would also go against the right of accused to maintain order of acquittal.
3. To further understand the shortcoming of the previous court, the HC examined all facts and proceedings in the Special Court for each case separately. Since the similarity in evidence and question of laws, the court decided to depose all cases in a common judgement. The court found the following:’
- The parents did not report the abuse earlier when they found out about it due to the age of the girls and the mentality of the society. This was considered wrongly by the trial court.
- Various episodes of sexual abuse were cited, ranging from inappropriate touch to penetrative abuse. However, all depositions had been done in slipshod manner.
- The judge also clubbed various points together, which seemed to have caused confusion resulting in an acquittal. Also wrong appreciation of evidence, inadequacies of the prosecutor resulted in an unmerited acquittal of the accused.
The Court viewed that two important functions of the criminal trial had largely failed to perform their duties. Faulty investigation and prosecution found the trial to be an empty formality. The trial court must do its duty and the accused cannot cling to acquittal.
The court set aside all judgements by the Special Court and allowed a full retrial along with any needed investigation in the matters.
“Most importantly, the cases under the POCSO Act, especially perpetrated against children of tender age, that too hailing from socially and economically weaker classes, should be handled with utmost care and caution. We are constrained to observe that the initial part of the investigation in these cases was utterly disgusting. 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 also ordered the State to conduct educational sessions of handling such serious offences to public officials as well as trial court judges.
Story by Sai Kulkarni-Intern