Reading the judgment: How justice for Walayar sisters was let down by a shoddy probe

In this story, we inspect the judgment from September 30, 2019, acquitting one of the accused named Pradeep Kumar.

Delve Justice

It was sometime in the afternoon of January 13, 2017 that a 13-year-old was found dead in the one-room house, where she lived with her parents and her sister in Walayar in Palakkad district of Kerala. Fifty-two days later, her sister, a nine-year-old was found dead in the evening of March 4 in the same house. In both cases, the Walayar police station filed a case under the Code of Criminal Procedure (CrPC) 174, or a case of unnatural death.

Following the younger sister’s death, there was much furore, and as distressed people hit the roads in protest, the police added provisions of rape and assault. By then, a postmortem report by Dr PB Gujaral, senior surgeon and an expert in forensic medicine, had said that the younger sister had been sexually assaulted. The police who had overlooked the medical report in the case of the older sister – which had also suggested sexual assault – could no longer sit idle.

In the days to come, five people, including a juvenile, were arrested and charged with various sections including rape, sexual assault and abetment of suicide. More than two years later, all the four men have been acquitted by the First Additional Sessions Judge (Special POCSO Court). At a time when the entire state is reacting with shock and disbelief, a look at the judgment in one of the cases reveals how shoddy investigation botched up the case.

The first child’s death and the postmortem

A few hours after the elder sister’s death, at 8.44 pm, a First Information Report (FIR) was registered under CrPC section 174 or a case of unnatural death. The next day, a postmortem report prepared by Dr Priyatha V concluded that the ‘death was by hanging’. The postmortem report mentioned no injuries in the genitals, however it noted, ‘anal orifice appeared stretched with multiple mucosal erosions at margins with pustular areas at places’.

Even if the police personnel at Walayar police station had missed this line or not understood it, what remains surprising is that they did not pursue a case of rape and sexual assault despite the doctor’s deposition to the police after she submitted the post mortem report. The doctor in fact told the police two days after the child’s death, and later the court, that the tears or abrasions and pus collection could have been because of anal penetration, or a result of infection in the region or piles in the region. The postmortem mentions that the doctor had sent blood, viscera and vaginal swabs for chemical analysis. However, there is no mention of whether the doctor took anal swabs, and Dr Priyatha told TNM that she did not wish to speak about the case.

In the second week of January, the police rounded up a few men who allegedly worked with the parents, who are daily wage labourers, and used to drink with the father of the girls. These men were soon released and no case was registered against any of them. From here on, there was no further investigation into the case. This despite the younger child telling the police when she discovered the body, she had seen two men running out of the house.

The second child’s death

On March 5, 2017, a day after the second child died, the postmortem by Dr PB Gujaral clearly mentioned two things. The doctor suggested that the nine-year-old may not have hanged herself and the police had to investigate if it was a murder. However, a few months later, the police ruled out murder. The doctor also said that there is evidence to suggest ‘unnatural sexual offense in the form of multiple episodes of anal penetrations in the past’. With the doctor making it clear in the report that the child could have been sexually assaulted multiple times, the police added more sections to the FIR. Unlike the postmortem report of the older sister, the younger sibling’s autopsy report noted that both anal and vaginal swabs were sent for chemical analysis.

Within a few days, the police arrested five people, all of them known to the sisters’ family. V Madhu and M Madhu are the girls’ mother’s close relatives; Shibu, a former co-worker of the parents, had been living with the family for eight years. Pradeep Kumar lived in the same locality. The fifth accused, a juvenile, was their neighbour. The court is yet to pronounce its verdict on the fifth accused.

In this story, we inspect the judgment from September 30, 2019, acquitting one of the accused named Pradeep Kumar in the case of the elder child.

The prosecution’s case

The prosecution did not have any scientific evidence in Pradeep Kumar’s case.

The case was primarily based on circumstantial evidence - on statements given by three young women who knew the elder sister and the father of the two victims. The judge ruled that the three women were not credible witnesses, thereby ruling out the circumstantial evidence against Pradeep. A reading of the judgement also makes it clear that the judge believed that the police only had accounts of people who believed Pradeep harassed the victim, but they could not gather or show any proof directly linking him to the crime.

Pradeep, an unemployed man, was a neighbour and lived around 100 metres away from the sisters’ home. While his wife was away at work, he used to give tuition classes for the two girls and these are facts established in the trial.

The father, told court that he had seen one of the accused, V Madhu sexually assaulting the elder child. In Pradeep’s case, he said that two women had told him that Pradeep had exhibited nudity (stripped naked) to the elder sister. However, since his statement was based on hearsay, the court did not give it too much prominence.

Prosecution witnesses 9, 10 and 12 were young women who told the court that they had gone with the elder sister for election work.

Prosecution witness number 9 said that while she was out on election work, the eldest sister confided in her that she was scared of sitting alone at home. On the way back, they had met Pradeep Kumar and upon seeing him, the victim had hidden herself behind her and told her that he was ‘not a good man’. Upon cross questioning by the prosecution, the witness admitted that she had told the police that Pradeep had exhibited nudity to the victim.

Witness number 10 told the court that the victim was scared upon seeing Pradeep. However, she denied that she ever gave a statement to the police claiming that the accused had exhibited nudity to the girl.

Witness number 12 told the court that she and three others had gone for election work for her mother who was contesting in elections. She alleged that Pradeep locked his door and gave the victim a mobile phone, he then exhibited nudity and asked her to click pictures. According to Witness no 12, the victim told her that he opened the door when she shouted aloud.

In the judgment, the judge notes that prosecution witness 10 had turned hostile. However, this witness told the court that they had been doing election work for a student organisation while prosecution witness number 12 said that it was for the panchayat election in which her mother contested

“The learned defence counsel at this juncture highlighted the contradictions in the evidence of PWs 9, 10 and 12 and argued that they are not creditworthy witnesses and are deposing falsehood with a view to help the prosecution,” the judge noted about the defence’s stand.

The judge then says that ‘serious doubts have been raised regarding the truthfulness of the depositions’. According to the judgment, witness number 12 had never mentioned about the mobile phone to the police and therefore there was a contradiction in her statement. The court also noted that panchayat elections happened sometime in 2015 or 2014 and not in 2016 or 2017. Pradeep had moved into the house only in 2016 and therefore the judge concluded that the statements of all these witnesses were falsified to prove the prosecution’s case.

While dismissing the circumstantial evidence, the judge also wrote about the lack of scientific evidence. Additional Sessions court judge Muralee Krishna S noted, “no semen or spermatozoa could be collected either from the specimen collected from the deceased girl or from the dresses of the accused. There is absolute absence of scientific evidence to connect the accused with the alleged offence.”

He also said that Dr Priyatha’s opinion that the injuries noted in the anal canal of the girl could be due to anal penetration, and her alternative opinion that it could be because of infection in the region, is not conclusive proof to say that the girl was sexually assaulted.

In Pradeep’s case, the police investigation clearly had no other angles, witnesses or scientific evidence. It is unclear why one of the witnesses turned hostile. But for the parents who had been hoping for justice, the judgment comes as a big blow, simply on account of the poor evidence building by the prosecution.

Inputs by Sanyukta Dharmadhikari