On December 14, 2023, Sreelatha* could barely hear the judge of the Special Fast Track court in Kerala’s Idukki district when she said that Arjun Sundar–the accused in the rape and murder of her five-and-a-half-year-old daughter – was acquitted. She had a meltdown as soon as the verdict was conveyed to her and began wailing uncontrollably in the court hall saying the accused killed her precious daughter whom she birthed after a wait of 14 long years. It was difficult for her family to calm her down as she blamed the justice system, asking the judge if she would give the same verdict had the victim been her own child. “I couldn’t believe it. I broke down because we expected justice from the court,” Sreelatha told TNM, seated on the verandah of their lane house in Vandiperiyar, a month after the verdict.
Sreelatha and her husband are tea plantation labourers, and they continue to live in the very same house where their child was raped and murdered, pinning their hopes on the Kerala High Court to reverse the judgement in their appeal. “Arjun was our neighbour and we have known him since he was born. At first, we did not think he could have done this to our child. We want justice,” Sreelatha said.
It was on June 30, 2021, that the child, belonging to the Paraya Scheduled Caste (SC), was found dead in the pooja room of their residence. Initially, the family thought that the death was accidental, but the post-mortem revealed that the child had been raped and murdered. Arjun first said that he had not seen the child on the day of her death, but when his aunt said that he was seen with the child, he changed track and claimed that he had forgotten this. Initially, Arjun also admitted to the police that he had committed the crime. The chargesheet said that he even demonstrated how he jumped out of the window of the victim’s house after committing the crime. But a confession before the police was inadmissible in court and two years later, the trial court acquitted 23-year-old Arjun, who is also a local worker of the Democratic Youth Federation of India (DYFI) which is aligned with the ruling CPI(M) party, for lack of sufficient evidence.
The news of the acquittal sent shock waves across Kerala and the judgement is significant for two reasons. One, it confirms that the death was a homicide and that the child was sexually assaulted. And two, the judgement vehemently criticises the defects in the police investigation which led to serious lapses in collecting and preserving evidence. Though the court placed on record that the child was raped and murdered, the circumstantial evidence pointing towards Arjun was considered insufficient to prove his guilt.
After the verdict became a point of public discussion, parallels were also drawn between this case and the rape and murder of two minor Dalit girls, both sisters, in Walayar of Kerala’s Palakkad district. The crime took place in 2017, and in that case too, the three men accused were acquitted in October 2019 citing a lack of evidence. The court had criticised the investigating officer and the prosecution for not being able to establish the guilt of the accused beyond doubt.
In many such sensitive cases, it can be observed that courts often point out the lapses in investigation, yet the officers who are responsible for it go scott-free. An analysis of the judgement in the Vandiperiyar child’s case too reveals that the police made irreversible blunders that backfired on the prosecution in court.
“I find that adopting a lethargic attitude throughout the investigation and unscientific way of collecting evidence without showing the shrewdness and intelligence reasonably expected from an investigating officer, seriously affected the prompt and timely collection of evidence in the case,” reads the Vandiperiyar case judgement. This underlines that in a case of sexual assault, where scientific evidence is crucial, the investigating officer let things slide.
Though the immediate cause of death was identified as a crack in the neck due to ligation, the court concluded that the vaginal injuries of the child and the widened state of her anus confirmed sexual assault. This was the conclusion in the post-mortem report as well, but the police neither collected scientific evidence with caution nor preserved it carefully. For example, the bedsheet on the bed where the sexual assault happened, had traces of semen and a strand of pubic hair. Though the post-mortem established rape, the police only collected the bedsheet from the scene of the crime on July 3, two days after the child’s death. In fact, the police did not even visit the child’s home until a day after the whole incident. Even after collecting these crucial pieces of evidence, the investigating officer stored them in unsealed covers, exposing them to tampering.
Similarly, samples from the child’s palms and fingers had fibres similar to those on the accused’s underwear and pants. Her nail clippings also had similar fibres, but the cellophane pressings of her palms or fingers did not have fibres similar to the shawl and plastic ropes from which she was found hanging. Further, the investigating officer did not check the almirah in the child’s house from where the shawl was taken for fingerprints.
Though the collected evidence was sent for forensic analysis, no DNA profiling could be done because the quantity of semen, pubic hair, and other evidence was insufficient. But the important finding here was that the pubic hair found on the bed of the victim was similar to that of the accused. The similarity here means a chance that it could have genetically belonged to the accused, but since there was not enough sample, DNA profiling could not be done to say if it was his. Though the defense said that the culprit could be any other man present there, the police did not collect the DNA samples of anybody else to verify if this similarity in pubic hair sample was unique to Arjun or not. Doing this would have tightened the evidence, leaving fewer holes in concluding whether or not Arjun was guilty.
The defense argued that the scarring on the child’s vagina was due to itching and that the child had complained of discomfort during the Covid pandemic itself, for which no medical intervention was made. But the child’s father told TNM that they took her to the doctor, and since social distancing was the norm, the doctor diagnosed it as a vaginal and urinary tract infection without physically examining the child. This was not specifically recorded by the police, and neither was this fact investigated further. With the discovery of the sexual assault on their child in the post-mortem, the parents now suspect that she wasn’t suffering from an infection but from her body being violated.
“The accused was very close to us and he lived just a wall away. He would always buy chocolates for my child and play with her. We had no idea that she was being abused all along even after my child developed vaginal bruises and discomfort,” the father said.
Advocate Rajesh Menon, a senior lawyer who has also been advising the child’s family in the case, told TNM that in sensitive cases like these, especially when the POCSO ( Protection Of Children from Sexual Offences) Act is involved, there are specific guidelines and standard operating procedures to be followed by the investigator. “But unfortunately, none of this is adhered to. It is mandatory for higher officials to monitor the investigation in such cases, but nothing of the sort happened here, allowing the investigating officer to go without accountability,” he said.
Rajesh further pointed out that in the Walayar double rape and murder also, the court pointed out the insufficiencies in the investigation, and the case was referred for a judicial enquiry and a de novo trial – a fresh trial from the beginning. “In this case also, if such a judicial enquiry comes, we will surely see many observations about the lackadaisical attitude of the investigating officer,” he added.
The point here is not whether we believe Arjun is guilty or not, because the trial court has already passed a verdict on that and the family has filed an appeal. What is significant is how the investigating officer did not ensure that there was no room for doubt in the procedure. It is the trial court’s critique of the investigation that leads one to ponder whether the accused was favoured by the investigator’s omissions.
It is to be noted here that both in the case of the child in Vandiperiyar, and the minor girls in Walayar, as well as cases like that of the lynching and murder of a young tribal man named Madhu (in which Rajesh was the prosecutor), lapses in investigation are constantly pointed out. In all these cases, the victims and their families are from marginalised backgrounds. Senior lawyer and rights activist Sandhya Raju said that when victims do not have financial, social, or political capital, investigating officers often adopt a hostile attitude.
“When the investigation starts on the wrong foot, there is no strong case against the accused. Everything is heavily dependent on the investigating officer and in most cases, officers try to settle the case by negotiating money, or by threatening the victims and families with consequences of prolonged litigation,” she said. Sandhya also pointed out that a lack of sufficient witness protection mechanisms also further exposes victims to violence and humiliation. “Though bodies like the State Commission for Protection of Child Rights are supposed to oversee the progress of cases involving minors, quite a lot are just let to slide,” she added.
Another important aspect of the Vandiperiyar case is that despite the child belonging to the SC community, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was not invoked. The essence of the Act is that an offence must be committed by a person who does not belong to a Scheduled Caste/Scheduled Tribe against a person belonging to a Scheduled Caste/Scheduled Tribe with the knowledge that such person is a member of Scheduled Caste/Scheduled Tribe.
The child’s parents contended that the accused’s father had converted to Christianity before he met his wife, and their marriage was solemnised according to Christian rites, recorded in the Church register. They also produced a certificate from the Peerumedu Tahsildar which confirms that the accused is a Christian. However, the defense lawyer cited a series of documents including the accused’s school leaving certificate which says he is a Hindu Paraya (categorised as SC). The court did not go into the veracity of the accused’s caste but ruled that the SC/ST Act could not be invoked as there was nothing to prove that the accused raped and murdered the child because she was from the SC community.
“The preliminary investigating officer has not investigated the caste of the accused. In such a case, the court can do little. When the caste of the accused is disputed, the state should ideally challenge it before the SC/ST Board, but that has not happened here either,” Rajesh elaborated.
Therefore, though guidelines exist for investigating officers, the court’s criticism of the police in the judgement and an analysis of the procedural lapses in this case show how these guidelines mostly remain unfollowed. There is little fixing of accountability on investigating officers who slack at their work and this results in the denial of justice to victims in courts for lack of sufficient recorded evidence.
Advocate Adhithyan SK, Arjun’s lawyer in the Vandiperiyar case, told TNM that he does not believe his client was acquitted solely for the lack of scientific evidence. “The police sure have committed lapses as pointed out by the respected court, but Arjun was targeted. If we look at the circumstances of the case, there were many boys present at the time during which the crime happened, but Arjun was the only person who was not related to the victim, and it was perhaps easier to pin the blame on him,” he said.
Rajesh explained that rape is a crime where there are usually no witnesses, especially when the victim passes away. So it is the duty of the investigating officer to ensure that he investigates all circumstances to ensure that there is a tight case that clearly either establishes the guilt of the accused or points towards his innocence. But here, Arjun confessed before the police, and the police stopped there. It is common knowledge for an investigator that a confession before the police is not admissible in court because there is a presumption that the accused may have confessed under threat of intimidation. Despite this, the police simply took Arjun’s statement on record and did not bother to look for additional evidence or investigate other probable culprits.
“It is quite perplexing that there was no investigation into how a pubic hair similar to that of the accused Arjun was found in the victim’s house, on her bed, on the day of her death. Let the hair not be identical, but what explains the similarity? Was Arjun’s the only strand of hair that was similar to the one found in the child’s bed? Even if the victim played with the accused regularly, how did the fibre pressing on her hand become similar to the accused’s undergarment on the day she died?” he asked, pointing out how shaky the whole process looked.
When asked about why such lapses on the part of the police go unpunished, Rajesh said that the Criminal Procedure Code offers protection to officers for what they do in the course of disposing of their duties. “I believe this protection should be removed so that we can ensure that we pin responsibility,” he said.
He also pointed out that apart from Assistant Public Prosecutors who are selected through a competitive exam, most Public Prosecutors in Sessions courts are politically appointed, often putting their experience and expertise under questionable light. “This is a systemic problem that impairs the integrity of the prosecution in such situations because there is no common benchmark to gauge the professional acumen of the prosecutor. This must be addressed,” he said.
India is also a country that allows for judicial activism, wherein the Supreme Court itself has said that the court is not a mere spectator. It is the court’s duty to intervene when inconsistencies are noted during the trial. “Though a court can only pronounce a verdict on the basis of what is presented before it, the judge must intervene when necessary. But how many judges do this is the question,” he added.
When it comes to improving the preliminary investigation procedures, Sandhya said that it is the investigating officers who must first be given awareness and sensitisation. “Nobody is trained on how to collect evidence or how to behave with victims. This does not absolve them from doing a half-baked job, but it is also true that lack of consequences when clubbed with a lack of awareness ultimately derails justice. We have all the rules on paper, but none of it is followed and additionally, no ramifications befall the police,” she added.
Though in the Vandiperiyar case, the family did not initially know that it was rape, it remains a fact that most commoners have no idea how the law works to ensure that evidence is recorded properly. When it comes to understanding how to report a sexual crime or preserve bodily evidence, Sandhya pointed out that the state must ensure that awareness is built among people, so that they are not in the dark about investigation procedures. “This lack of awareness costs victims in court, and that must not happen,” she said.
Whether Arjun was innocent or not is now for the High Court to decide, and Sreelatha and her family are in preparation for their appeal. But it is important to underline that courts have time and again criticised the police for faulty investigation, and many families like Sreelatha’s are bogged down by such systemic lapses, making justice seem like an elusive dream. As a result, many cases get transferred to higher investigating agencies, but the fact remains that preliminary investigation is the foundation of any case, and unless that process is conducted with integrity and accountability, there can be no semblance of justice.