An appeal can be filed in the High Court against the acquittal of the accused in the Walayar rape and suicide case of minor sisters by admitting the lapses on the part of the investigation and the prosecution. The points which the trial court has not appreciated as in the case of prosecution witness 8, who was a member of the SIT and witnessed the production of C.D. containing the videographs prepared at the time of inquest of the victim, can be brought to the notice of high court. If the case is remanded for retrial, the lapses can be rectified.
A new investigation must revisit the possibility of murder. The investigation team needs to do further consultations with the surgeon before ruling out the possibility of homicide as he had suggested in his post mortem report of the younger sister.
It is evident from the available records that the investigation team has not followed up on the recommendation of the surgeon. She can stretch up to a maximum of 151 cm, and need to reach up to the rafter of the shed on which the ligature/lungi was fixed at a height of 247 cm, to commit suicide. The judge has noted that "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…" One needs to check the mahazar and find out the position and measurements of the cot and the chair which is said to have been placed on the cot by which the special investigation team claims that the girl may have managed to fix the ligature for hanging.
The possibility of a retrial is more if the higher court can be convinced about the possibility of murder in the case.
The contention of the defense lawyers that the statements against the accused implicating them in the case were recorded from the witness by the SIT head M.J. Sojan soon after he took charge and no such statements were collected by the CI and SI who conducted the investigation before can be countered. The CI had investigated the case only for a few days and the SI of the Walayar Police Station P C Chacko is an officer who was suspended for the lapses in the investigation. The PR minutes file which shows department-level action was taken against him and the punishment awarded to Chacko, the then SI should be brought into evidence to discredit him.
In my view, there was no need for the SI to be made a prosecution witness. The lapses on his part can be pointed out for the reason for the delay in recording the statements of the witnesses which say that the minor sisters were subjected to unnatural sex by the accused persons. The new special public prosecutor (SPP) needs to present such aspects convincingly.
The High Court can give the nod for a retrial if finds it necessary; and as per Article 142, the Supreme Court has the powers to order a reinvestigation if it finds merit in the plea seeking the same.
As told to Nidhin T.R
(Mr Unniraja retired as Superintendent of Police (Crime Branch)