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'No Evidence For Homicidal Death Of Younger Sister' : POCSO Court In Walayar Rape-Death Case [Read Judgment]

30 Oct 2019 1:46 PM GMT
No Evidence For Homicidal Death Of Younger Sister : POCSO Court In Walayar Rape-Death Case [Read Judgment]
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The judgment dated September 30 of the First Additional Sessions Court, Palakkad, acquitting one of accused Pradeep Kumar in the rape-death of the younger sister in Walayar (Kerala) is out. 

In the judgment, the Court holds that there is no evidence to hold that the death of the nine year old girl was homicidal.

It is relevant to note that the Police Surgeon Dr P B Gujaral who conducted the postmortem of the young girl had opined that the possibility of her homicidal death cannot be ruled out. On the basis of the age of the girl and her height, the doctor suggested that "the possibility for homicidal hanging needs to be ruled out by correlating with measurements at the scene of occurrence and through investigation."

The doctor opined that there was evidence suggestive of unnatural sexual offence on the girl in the form of multiple episodes of anal penetrations in the past.

As per the police version, the girl committed suicide by hanging on March 4, 2017. The intolerable pain due to continuous sexual assault by five accused persons had driven the nine year old to suicide, alleged the FIR. Her elder sister, aged 13,  was found hanging in her single room house about two months ago on January 13, 2017.

According to the scene mahazar, the height of the room was 260 centimeters. The girl was found hanging from the rafter of the shed, which was at a height of 246 centimeters from the floor.

The defence counsel pointed out that police has not investigated how the girl who is having a height of only 131 cm as per the inquest report could fix the ligature on the rafter for hanging.

The Court held that there was no evidence to suggest homicidal death of the girl. The Forensic Surgeon had not noted any injuries in the body which correlate with homicidal death, observed the Court.

"During investigation, no other reason was found by the investigating officer to say that the girl died other than by way of suicide. None of the prosecution witnesses have a case that the death of the girl is a homicide", said Judge Muralee Krishna S in the judgment.

The Court surmised that the girl would have used either the broken chair or wooden cot, which were stated to have been in the room as per the scene mahazar, for fixing the ligature.

"The failure on the part of the investigating officer to clarify this point is not a ground to disbelieve the other evidences regarding the death of the girl tendered by the prosecution witnesses. Therefore, from the available evidence it can be concluded that the victim in this case, who is aged only nine years committed suicide by hanging herself by making use of a lungi as the ligature, in the one room shed wherein she was residing with her family", the court said in its 42 page judgment.

'Prosecution Miserably Failed To Prove Offence' : POCSO Court Acquits Accused In Walayar Rape-Death Case [Read Judgment]

No direct evidence for sexual abuse

There was no direct evidence in the case for proving sexual abuse by the accused.

The prosecution had cited two witnesses - one Sumathi and Akhil Prasad - for proving that the accused had sexually abused the girl. Sumathi, who was examined as PW5, was a relative of the girl. Akhil Prasad, who was examined as PW6, was her friend. In the statements given to the police, they said that the girl had told them about the misbehavior by the accused.

But during trial, they turned hostile and disowned their statements given to police. 

"PWs 5 and 6, who are examined by the prosecution to prove that the victim girl had disclosed about the bad behaviour of the accused to them, turned hostile to the prosecution and denied their statements allegedly made to the police. Hence, there is no evidence either direct or substantial to say that the accused committed rape and carnal intercourse against the victim girl as alleged by the prosecution is the argument of the learned defence counsel", observed the Court.

The prosecution tried to discredit PW 5 and 6 by confronting them with their statements given to police. But the Court said that "even if it is proved that PWs 5 and 6 are deposing falsehood with a view to help the accused, there is nothing to rely in their evidence to say that the accused has committed sexual offence against the victim girl".

The Court also noted that there was no scientific evidence to connect the accused with the alleged offence.

"On analysing the entire evidence adduced by the prosecution as discussed above, it is clear that in the chain of circumstances only two circumstances are proved by the prosecution. First one is that the accused had been residing near to the house of the victim girl in a rented house and the second one is that the accused had an opportunity to commit an offence against the victim girl when she had visited his house either for playing or for obtaining tuition.

But there is absence of any other circumstance to link the accused with the commission of the alleged offences. Therefore, I have no hesitation to hold that prosecution has miserably failed to prove the alleged offences against the accused beyond reasonable doubt", the Court concluded while acquitting Pradeep Kumar of offences under Section 376(2) (i) and (n), 377, 305 and 354 of IPC and Section 5(1) read with 6 and Section 7 read with 8 of POCSO Act and Sections 3(1)(w)(i) and 3(2)(v)(a) of the SC/ST Prevention of Atrocities Act.

Pradeep Kumar was also accused of committing sexual offences on the elder sister, who was found dead on January 13, 2017. The Court had acquitted him in that case on September 30, after a separate trial, observing that the prosecution miserably failed to prove the offence.

There were three more accused in both the cases- V Madhu, M Madhu and Shibu. They were acquitted by the Court on October 25. Copy of that judgment is awaited.

There is one more accused, who is a juvenile, and separate proceedings against him are going in Juvenile Justice Board.

Massive outrage is building up in Kerala following the acquittal of all accused persons in the gruesome rape-death of the girls from Walayar, who belonged to Scheduled Caste community.

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