Holding that there was "miscarriage of justice", the Kerala High Court on Wednesday directed a retrial in the sensational Walayar case in which two minor sisters were found dead in their hut in 2017 after allegedly being sexually assaulted. A division bench, comprising Justices A Hariprasad and MR Anitha, allowed appeals filed by the state government and the mother of the children and set aside a special Protection of Children from Sexual Offences (POCSO) court order acquitting five accused in the case.
Observing that there were serious lapses in the investigation and that the entire matter needs a fresh consideration, the high court directed the accused to appear before the trial court on January 20. "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 acquittal," the bench said.
The judges observed that they have no hesitation in holdingthat trial had been "lowered to the level of mock trials". It also allowed the prosecution to seek permission from the trial court for further probe into the matter.
The bench observed thatthe initial part of the investigation in the case was "utterly disgusting". Reacting to the order, the mother of the children, who met the media, said the case should be handover to the CBI, a stand echoed by the opposition Congress also.
The eldest of the siblings aged 13 was found hanging inside the hut on January 13, 2017 and the younger sister (9) on March 4. Both were allegedly sexually assaulted. However, a special POCSO court in Palakkad had, in October 2019, acquitted the five accused for want for evidence.
Public outcry and protests had erupted in the state then, seeking justice to the family of the girls. The state government had on November 18, 2019 removed the Public Prosecutor who handled the case.
Later, the government filed an appeal in the high court, challenging the acquittal, saying the lower court verdict was "absolutely perverse and wholly unsustainable." The high court in its order on Wednesday said the probe officer, who was deputed to investigate this case had failed to gather any proper scientific evidence even after a week of the death of the younger girl. The judges also reminded the investigating and prosecuting agencies that their failure of such a magnitude will be a "travesty of justice".
"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," the court observed.
Expressing dissatisfaction in the manner the trial was conducted by the POCSO court, the judges pointed out the need for special training for the POCSO court judges. "The Director, Kerala Judicial Academy shall 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 high court said.
The court also held that it was the unshirkable responsibility of the state government to establish and maintain honest, efficient, effective and skillful investigating machinery and prosecuting agencies should be committed to truth alone. Meanwhile, Opposition Congress leader Ramesh Chennithala welcomed the high court order and said the judgement shows that serious lapses in the investigation and the manner in which the trial was conducted by the prosecution.
Supporting the demand of the mother of the victim children for a CBI probe, he said it was not right to allow the Kerala police, which had already made serious lapses in the cases, to re-investigate the matter. "It's not right to handover the reprobe of the case to the Kerala police which is already under heavy criticism for a shoddy probe in the matter. The demand of the victims mother for a CBI probe should be considered" Chennithala said.