Kerala: Acquittal of accused in 6-yr-old's rape and murder raises concern

V Manju, the special judge for POCSO cases, acquitted a 21-year-old accused Arjun in a rape and murder case at the fast-track court in Kattappana but not before criticising the tardy investigation and the lack of incriminating evidence presented by the investigation team.

The incident occurred in June 2021 in Kattappana, Idukki district, where a six-year-old girl was found dead in her residence. She was living with her parents in a settlement hut on a tea estate in Idukki district. Subsequently, the police arrested Arjun on charges of rape and murder under the POCSO Act.

Defects in investigation

In her judgment, the special judge pointed out the shoddy way the investigation was carried out, stating that she found it necessary to comment since a small child below 6 years was cruelly done to death and the wrongdoer had to be booked for the injustice done to the child and her family.

“In cases of hanging, the presence of blood, faeces, urine etc., in the scene of occurrence are very important factors to be noted and such important details must find a place in the investigation records and that was not done by the investigating officer. The investigating officer inspected the place of occurrence only on the next day of the incident at noon and hence failed to collect all first-hand evidence available on the spot,” noted the judge in the order.

Further, the judgment said that despite the prosecution knowing that the ligature material was taken from the almirah found in the middle room of the victim's house, the investigating officer failed to inspect the almirah and its surroundings, and missed out on chancing upon fingerprints.

Although the investigating officer inspected the place of occurrence twice in two days, the evidence was not properly. “I find that early collection of material objects from the place of occurrence in a proper manner would have surely saved important pieces of evidence in the case,” observed the judge.

The role of the investigating officer

Further, the judgment questioned the evidence the investigating officer offered regarding a window through which the accused had escaped. When he had visited the place of occurrence on July 1, 2021, the investigating officer had noticed the particular window through which the accused had escaped was locked.

Thereafter, someone was made a witness to prove the particular window was lying slightly open after the incident. The investigating officer did not explain this discrepancy, which affected his credibility, said the order.

Further, the judgment pulled up the investigating officer for not taking adequate steps to get the fingerprints of the accused.

“The evidence of the investigating officer shows that he did not take any steps to cause the fingerprint expert to examine the place of occurrence for collecting the chance prints. He is trying to escape from such a serious lapse on his part by merely giving an evasive reason that the fingerprint expert told him that there is no chance of obtaining chance fingerprints from the place of occurrence.”

In effect, the judgment squarely blamed the investigation team for their “lethargic attitude” during the investigation and the “unscientific way” of collecting evidence. Also, the judgement added that they had not displayed "shrewdness and intelligence" reasonably expected from investigating officers.

This seriously affected the prompt and timely collection of evidence in the case, stated the judgment.

POCSO court judgement

However, lawyers have strongly disagreed with the POCSO court judgment in this case.

PM Athira, a Kozhikode-based lawyer, who had been a government pleader until recently said, “Given that the accused has no concrete alibi and no other significant suspect was present, circumstantial evidence which was available in this case was more than enough for a conviction."

The victim’s proximity with the accused and other scientific evidences like presence of his pubic hair on the scene were good enough ground for a conviction, said Athira, adding that “these kind of judgments in cases of this nature does not help the cause of justice”.

“I think the case has been sabotaged, by the local political leadership. I have reasons to believe the investigation was influenced by the ruling party. The parents of the girl are incapable of resisting the political power and they may have succumbed to pressure,” alleged T B Mini, a Kerala High Court lawyer.

POCSO cases

Similarly, in 2019, in Palakkad district, a special POCSO court had acquitted three accused in a 2017 rape case, involving two minor Dalit sisters from Walayar, a region on the Kerala-Tamil Nadu border.

Another accused had been declared not guilty in a prior judgment related to the case. The tragic incident involved two girls, aged 13 and nine, who were found hanging in their one-room home.

Post-mortem examinations confirmed that both minors had experienced sexual assault before their untimely deaths. The judgments, acquitting the accused, have sparked widespread protests in the state, with civil society organisations and Opposition parties expressing concern about the police investigation and alleging political interference in the case.

Later, the Kerala High Court ordered a retrial in the case in January 2021, observing that there were ‘serious lapses’ in the investigation. The high court had also set aside the October 2019 order of the POCSO Court. Later the case was handed over to the CBI, on the insistence of the state government, but the central agency also filed a chargesheet stating that the girls committed suicide after repeatedly being sexually exploited by the accused.

SC order on acquittals

In the Kishanbhai v state of Gujarat judgment in 2014, the Supreme Court (SC) had made it clear that the investigating or prosecuting officials who are responsible for such acquittals should be held accountable.

“On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability,” said the judgement by Justice Jagdish Singh Khehar.

The SC had clearly directed the home department of every state government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers, which was also given effect within 6 months on January 7, 2014.

According to Athira, the POCSO court in Arjun's case has not made any "clear-cut points against the investigating or prosecuting officers for any kind of action to be taken against them”. However, the state government has decided to file an appeal in the high court, while Opposition parties are demanding a reinvestigation by a central agency like the CBI.