With the complete judgement copy acquitting all the accused in the Walayar sisters death case now made public, it is evident that the lack of circumstantial and direct evidence and crucial witnesses like the grandmother of the children turning hostile contributed to the case becoming weak
The Palakkad sessions court while acquitting four of five accused - Pradeep Kumar, Valiya Madhu, Kutti Madhu and Shibu- in the death of the 13-year-old and nine-year-old sisters, has also said that there was no evidence to prove whether the deaths were a case of homicide.
All accused were known to the victims and their family — Pradeep Kumar, who lived near the victim’s house, used to give the tuition to the girls; 28-year-old Valiya Madhu is a cousin of the victims’ mother; 26-year-old Kutti Madhu is the nephew of the victims’ mother; and 45-year-old Shibu used to live in the victims’ house.
In the case against Valiya Madhu, pertaining to the death of the 13-year-old elder sister, there were 30 witnesses. The girl’s stepfather, mother and maternal grandmother are the key witnesses.
However, the grandmother, who had earlier given a statement to the police stating that she saw Valiya Madhu taking the girls to his house and misbehaving with them, turned hostile.
Eight other witnesses had stated that they saw V Madhu visiting the sisters’ house and vice versa. Among them, one Sreekrishnan told the police that he got to know from the younger sister and a 15-year-old boy (a witness who used to play with the 13-year-old) that V Madhu had come to the house on the day of the girl’s death. He, however, turned hostile, and so did the 15-year-old witness.
Besides, barring the father and the mother, none of the witnesses saw the accused alone with the victims in their house.
Another witness, a woman, who knew the victim from her childhood, was privy to the sexual assault. One month prior to her death, the 13-year-old girl had confided in the woman that Valiya Madhu did something to her that she was suffering pain in a rectal area.
Incidentally, the woman’s oral evidence is hearsay evidence, which is admissible only under section 6 and 32 of the Indian Evidence Act. But to be accepted under section 6 as 'res gestae' (the events, circumstances or remarks that constitute as admissible evidence in a court), the incident should have been disclosed to her at the time of occurrence or immediately before or after the incident.
However, the woman did not approach the police, and it was only after the Deputy Superintendent of Police (Narcotic Cell, Palakkad) took over the investigation on March 9, 2017, and after the death of the younger sister, that the woman disclosed the facts known to her. Thus, the evidence of the woman was not accepted as ‘res gestae’ or admissible evidence ruled the court.
Delay in reporting by parents weakens evidence
The father and mother were aware of the sexual assault against the 13-year-old. However, the father did not file a complaint against V Madhu, allegedly thinking about the future of the girl. It was only after the death of the younger girl that he told these facts to the police and at the court notes the judgement.
According to the prosecution, in 2016, the stepfather, who was laid up in the house due to a fracture at the time, saw V Madhu sexually assaulting the 13-year-old girl. On seeing the father, V Madhu ran out. The girl told the father that the V Madhu threatened her that if she disclosed the incident, he would kill her. The father and mother warned Madhu off.
However, as per the evidence submitted in court, the father did not reveal this after the elder daughter's death.
“If the parents are really bothered about the welfare of the daughter, definitely they would have taken action against V Madhu, at least after the death of the victim,” the judge said.
This further weakened the evidence to prove the sexual assault against the 13-year-old.
No scientific evidence
Although the Assistant Surgeon of Forensic Department, who conducted the postmortem examination of the 13-year-old’s body, stated that the injuries noted in the anal canal of the girl could be due to penetration, she also gave an alternative opinion, that it could be due to an infection in the region.
Besides, no semen or spermatozoa could be collected from the specimen from the victim.
Hence, in the absence of direct evidence, circumstantial evidence or chain of circumstances that would incriminate the accused, the Palakkad sessions court acquitted the four accused of all offences against them.
The trial of the fifth accused, who is a juvenile, is yet to commence.