TW: Details of sexual assault
Twenty-three-year-old Arjun, the lone accused in the sexual assault and murder of a six-year-old girl in Kerala’s Vandiperiyar, was acquitted by a fast track court on Thursday, December 14. Special Judge V Manju of the Special Court for the trial of offences under the Protection of Children from Sexual Offences (POCSO) Act in Kattappana, pronounced him not guilty after finding the prosecution’s case weak. The court also criticised the investigating officer for serious lapses in the investigation, such as failing to collect fingerprints, leaving crucial evidence uncollected for days, and leaving it open to tampering. The court also questioned the credibility of the investigating officer for discrepancies in his statements about the crime scene.
Criticising the “lethargic attitude” of the investigation officers and the “unscientific way of collecting evidence,” the court also directed the Thodupuzha District Legal Services Authority (DLSA) to pay adequate compensation to the biological parents of the child after conducting due enquiry. Though the prosecution produced 48 witnesses and over 69 documents, the court found the circumstantial evidence not strong enough to prove Arjun’s guilt.
Judge Manju observed that the prosecution – in the absence of eyewitnesses – relied entirely on circumstantial evidence to prove Arjun’s guilt. “The prosecution must establish a chain of unbroken events unerringly pointing to the guilt of the accused and none other. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than the guilt of the accused,” she said. The judge also said the prosecution failed to establish all the circumstances consistent with the guilt of the accused and inconsistent with his innocence.
The deceased child was five-and-a-half years old and lived with her foster parents—both labourers in Idukki district. She was adopted at the age of six months and was raised by her biological father’s brother. On June 30, 2021, she was found dead in her home by her elder brother. The prosecution presented a case saying she was sexually assaulted by the family’s neighbour, Arjun, multiple times from 2019. On the day of the incident, Arjun allegedly raped and murdered the child. Arjun was the local Democratic Youth Federation of India (DYFI) worker. He was arrested nearly a week later and charged with the rape and murder of the six-year-old.
Doctors at the Idukki Medical College, who performed her autopsy, confirmed the child was sexually assaulted before being strangled. The court said that the prosecution had succeeded in proving that the child’s death was a case of homicide and not suicidal hanging but that the prosecution had failed to prove its case.
Read: Fear and anger in Vandiperiyar village after rape and murder of 6-yr-old girl
Circumstantial evidence produced by prosecution
The court observed that the prosecution entirely relied on circumstantial evidence to prove the guilt of the accused in the case and went into detail about four pieces of evidence produced by the prosecution:
Arjun earned the trust of the child by giving his mobile phone and chocolates to her, and sexually abused her. On the day of the incident, he bought chocolates and gave them to the child.
Statement given by Arjun to Inspector of Vandiperiyar TD Sunil Kumar while under custody.
Scientific evidence
Previous and subsequent conduct of the accused.
The prosecution had produced the statements of the biological parents and shopkeepers who sold chocolates to Arjun. The biological parents had deposed before the court that Arjun came to their house around six to eight months before the incident with chocolates and “became very upset” upon seeing them inside the house. Observing that the investigating officer (IO) did not prove the father’s statement and that his statements had “inconsistent versions as to whether he had seen the accused giving chocolates to the victim,” the court said that the evidence was not reliable.
Secondly, the shopkeepers’ statement that Arjun had been purchasing chocolates and cakes for three years from their shop was also disregarded stating that the prosecution did not have any evidence to prove that Arjun gave the chocolates he purchased on June 30, 2021, to the child. The court also added that the IO did not conduct any investigation about the chocolates, and the accused did not disclose what he did with the chocolates during questioning. “So I find that the story of the prosecution regarding giving chocolates to the victim by the accused on June 30, 2021, is false,” Judge Manju noted.
The court noted that Arjun’s statements to the police did not lead to the discovery of any incriminating facts or new facts admissible under section 27 (how much information received from the accused may be proved) of the Evidence Act. The judge was referring to Arjun’s statement that he jumped out of a window after committing the offence.
However, the court accepted the clothes discovered by the police as evidence.
Further, noting that there was a discrepancy in the IO’s statement regarding whether the window was opened or closed, the court pulled up the prosecution for not explaining the discrepancy which was a “crucial factor in deciding the credibility of the prosecution case” and ruled that the prosecution’s case lost its ‘genuineness’ at this point.
The Forensic Science Laboratory (FSL) report showed that the nail clippings of the child and the cellophane pressings of her right palm had fibres similar to those present in Arjun’s trouser; the cellophane pressings of her left palm contained fibres similar to that of Arjun's underwear; and fibres similar to the shawl or rope in which the child was hanging were not found in her palm. No semen or sperm were found in the swabs collected from the child. The DNA profiling revealed that not enough sperm sample was found in the bedsheet used by Arjun to do the test. However, the pubic hair found on the bedsheet was found to be that of Arjun.
The court observed that the bedsheet was not taken into evidence on the day of the incident but on July 3, 2021; and it was kept in an unsealed condition by the IO till July 7, 2021. “It is the bounden duty of the prosecution to rule out all probabilities of tampering with the evidence and that was not done by the prosecution in this case,” the court said and ruled that the FSL report that showed similar hair strands and fibres were of no consequence in proving the guilt of the accused.
A senior civil police officer attached to the Idukki cyber police station had deposed that he examined the phone of the accused on July 5, 2021, and found links to porn sites, including child porn websites sent to Arjun via Telegram. He had also found two photographs of the girl in a hidden folder that was password-protected. The police officer added that the phone was not in a sealed condition when it was given to him. Following his examination, it was sealed and sent to the cyber forensic division of FSL.
According to the FSL report, there were three photos of Arjun and the girl, and several pornographic images and videos. There were as many as 19 images of the girl that were taken on his phone during different periods between 2017 and 2021. The report also found that the file path of pornographic content showed that Arjun viewed the videos.
Citing a Kerala High Court judgement on steps to be followed by police officers when collecting a mobile phone that might have been used for a crime, Judge Manju said that none of it was followed, including sealing the device to avoid tampering with evidence. Further, the court also ruled that the girl’s photos in his phone could not be viewed with suspicion as they were neighbours and close to each other.
Though the prosecution had argued that the presence of pornographic content along with the photos was proof of the crime, the court refuted this by saying that it could not be considered evidence in the absence of proof of his guilt. “Moreover, there is no evidence to show that the accused had browsed or downloaded child pornographic material to make out any offence u/s 67B of the Information Technology Act,” the court said. Section 67B pertains to punishment for publishing or transmitting material depicting children in sexually explicit act, etc, in electronic form.
The prosecution had contended that though there might be an absence of scientific evidence, the “previous and subsequent conduct” of Arjun was relevant as circumstantial evidence to prove his guilt. The prosecution listed several statements made by Arjun at different points after the child’s body was found as proof of his guilt, including his multiple questions about how a case can be registered as the child “died by suicide.” However, the court ruled that Arjun’s conduct by itself could not be used as a ground to find him guilty.
Defects in the investigation
Stating that it was a case of the brutal assault and murder of a small child, she said that it was the “bounden duty” of the IO to reach the crime scene without delay and collect all evidence and notice every minute details with care and caution. She then pointed out eight defects in the investigation:
> In cases of hanging, the presence of blood, faeces, urine etc. in the scene of occurrence are very important factors. Such details were not included by the IO in the investigation record.
> The IO 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.
> The prosecution argued that the material used to kill the child was taken from the almirah kept in the middle room of the girl’s house. But the prosecution evidence revealed that the IO did not inspect the said almirah and its surroundings, the arrangement of clothes and the availability of chance fingerprints from therein. Chance fingerprints or latent fingerprints are invisible fingerprints left at the crime scene or the objects present there. It can only be analysed forensically with the use of chemicals or other methods by experts.
> Observing that several materials from the crime scene, including a towel, bedsheet and knife were not recovered on the first day, the judge said that early collection of material objects from the place of occurrence in the proper manner will surely save important pieces of evidence in the case.
> The evidence of the investigating officer showed that he had collected all material objects in unsealed condition without caring for the possibility of tampering with the same.
> IO’s evidence showed that he did not take any steps to cause the fingerprint expert to examine the place of occurrence for collecting chance fingerprints. He was trying to escape from such a serious lapse that happened on his part by merely giving an evasive reason that the fingerprint expert told him that there was no chance of obtaining chance fingerprints from the place of occurrence.
> The IO had initially said that the window in the room the child was found in was closed. Later, a witness was produced to show that the window was slightly open after the incident. The judge said that this discrepancy was not explained by the IO which affected his credibility.
> The IO did not investigate the probability that Arjun could have left through the back door easily and why he had to jump through the window.
“Thus, I find that adopting a lethargic attitude throughout the investigation and an 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,” the judge ruled.
Arjun was booked under sections 449 (house-trespass to commit offence punishable with death), 376(2)(n) (punishment for repeated rape on a woman), 377 (unnatural offences), 376A (punishment for causing death or resulting in persistent vegetative state of victim), 376AB (punishment for rape on woman under 12 years of age) and 302 (punishment for murder) of the Indian Penal Code (IPC) and section 5(i), (j)(iv), (1) and (m) (aggravated penetrative sexual assault) read with section 6 (punishment for aggravated penetrative sexual assault) of Protection of Children from Sexual Offences (POCSO) Act.
Also Read: Rape and murder of 6-yr-old in Kerala has eerie similarities to Hasini murder in Chennai