Kerala High Court
Sr. Sephy vs Union Of India on 1 January, 2009
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7311 of 2008()
1. SR. SEPHY, ST. PIOUS XTH CONVENT
... Petitioner
Vs
1. UNION OF INDIA, REP. BY THE
... Respondent
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.
The Hon'ble MRS. Justice K.HEMA
Dated :01/01/2009
O R D E R
K. HEMA, J.
----------------------------------------------------------------
Bail Appl. Nos. 7311, 7508 & 7551 of 2008
---------------------------------------------------------------
Dated this the 1st day of January, 2009.
ORDER
About one-and-half decades ago, dead body of a nun, Sr. Abhaya, who is an inmate of Pious Xth Convent Hostel was extricated from a well situated in the hostel-compound. The hostel is a ladies' hostel run by the nuns. There were altogether 123 inmates in the hostel who include, 20 nuns. The third accused is a nun, and she was residing in the hostel on the ground floor(basement/cellar region where kitchen, dining hall, etc., are situated). She was assisting Sr. Helen who was in charge of the mess/kitchen in the hostel and both of them were occupying the same room allotted to them in the hostel. On the crucial day, Sr.Helen was not present in the hostel.
2. Third accused was allegedly having clandestine affair with two Christian priests who were teaching in a college. The first accused was teaching in Psychology and the second accused, in Malayalam. On the crucial day, on 27.3.1992, since Sr. Abhaya was preparing for examination Sr. Shirly woke her up as promised, early in the morning at 4 am. Thereafter, Sr. Abhaya went to toilet and then, to the kitchen to take cold water from the fridge to smear it on the eyes and face to keep her awake.
[B.A.7311,7508 & 7551/08] 2
3. But, when Sr. Abhaya went to the kitchen, she allegedly saw the two priests and the nun (A1 to A3) in a compromising position. Fearing exposure, first accused allegedly strangulated her by her neck, third accused (nun) beat her with an axe, and all the three took her by force and dumped her in the well in a conscious state and she died due to drowning. (as this part of the alleged assault was not quite clear from the case diary and even from the narco analysis report, I specifically ascertained those details from the prosecution, while learned Standing Counsel, on consultation with the investigating officer, narrated the above facts).
4. These are the three bail applications filed by accused 1 to 3, who were arrested after more than 16 = years of the death of Sr. Abhaya and remanded to judicial custody on19.11.2008. Learned senior counsel Sri. M.K.Damodaran, learned counsel Sri. B. Raman Pilla and Sri. C.P. Udaya Bhanu argued the matter on behalf of third, first and second accused respectively. B.A.Nos.7508, 7551 and 7311 of 2008 are filed by accused 1 to 3 respectively.
5. Learned counsel Sri. A. X. Vargheese filed a petition for impleading Sr. Abhaya's father in the bail applications. Sr. Abhaya's father is neither a private complainant nor the defacto complainant. He has not pointed out any locus standi, as per law, to be on record as a party to the present proceedings. Learned counsel could not also point out any legal right to get Sr. Abhaya's father impleaded in the bail application. Hence, [B.A.7311,7508 & 7551/08] 3 the prayer for impleading can only be rejected and I do so. Still, on the peculiar facts and circumstances of this case, I felt that an opportunity of hearing need not be denied to deceased Sr. Abhaya's father and hence, he was also heard. But, it is made clear that this permission of hearing was granted to him, not as of any legal right to be heard in the matter.
6. Learned counsel for petitioners raised mainly the following grounds, among other grounds, to grant bail:
1) Petitioners are totally innocent and they are victims of the sensation created by media and they are arrested without any evidence against them.
2) Sr. Abhaya committed suicide and she was not assaulted nor murdered, as alleged.
3) Several circumstances indicate that there could be no assault at the alleged scene, as alleged.
4) Though there were bleeding injuries on Sr. Abhaya, not even a drop of blood was present at the alleged scene of occurrence, alleged weapon of offence or the veil found at the scene of occurrence.
5) The injuries on the deceased could not have been caused by the alleged weapon of offence.
6) Medical evidence supports a case of suicide and not homicide.
[B.A.7311,7508 & 7551/08] 4
7) Scientific examinations like brain finger printing, polygraph etc., done on petitioners prove their innocence rather than proving their guilt.
8) Compact discs on Narco Analysis were tampered with, as seen from the observations to that effect, in the order passed by another bench of this court in I.A.1614/2008 in WPC.
35590/2007 and and hence no reliance may be placed on the same.
9) CBI arrested petitioners only to save its face, because of the "compulsive orders" passed by another bench of this court (vide I.A. 1614/2008 referred above) whereby, officials in CBI were under a serious `threat' of severe criticism from the court, unless they arrest accused.
10) CBI felt encouraged by the compliments showered on the investigator by another Bench of this court in Fr. Jose Poothrikkayil and Others v. Union of India and Another (2008 (4) KHC 902) and hence he fabricated evidence against petitioners.
11) The evidence of "Adaka Raju", Sanju P. Mathew etc., who were suspects in this case is too artificial and belated to be acted upon. Those statements are extracted from them after a long time under threat of implication in the alleged [B.A.7311,7508 & 7551/08] 5 murder.
12) The evidence of priests and nuns referred to by CBI is only hearsay and no reliance can be placed on it.
13) Petitioners cannot influence or intimidate any witness or tamper with any any evidence and they are prepared to abide by any conditions imposed by the court.
14) Petitioners have co-operated with all scientific examinations.
15) No material is made available to petitioners and CBI has been unfair by putting accused totally in the dark on the allegations made.
16) CBI was brutal and highly inhuman in subjecting third accused who is a nun to `virginity test' which was totally unnecessary in this case and also fabricating other false evidence against her.
17) The allegation that third accused underwent 'hymenoplasty' is absolutely false and hence, she is prepared to undergo any medical examination before any medical board, as directed by this court to disprove the allegations .
18) Petitioners were treated as suspects by the investigating officers who conducted [B.A.7311,7508 & 7551/08] 6 investigation earlier and they have ruled out their involvement after conducting a detailed investigation.
19) The present investigating officer of CBI took up investigation only on 1.11.2008 and petitioners were arrested and remanded on the nineteenth day, on 19.11.2008. It is highly improbable that CBI would procure any further evidence against petitioners within such short period.
7. Learned Standing Counsel for CBI refuted all the above contentions and submitted that there are strong circumstantial evidence against accused. He also submitted that another bench of this court, in Fr. Jose Poothrikkayil's case (2008(4) KHC 902) considered those circumstances in the order. He relied upon mainly the following circumstances to refuse bail to petitioners:
1) Disturbance in the kitchen strongly indicate a case of homicide.
2) The scientific reports like brain finger printing test report, narco analysis report etc., prove involvement of accused in the murder.
3) Under strong influence from the "church", Sri V.V. Augustine, Additional Sub Inspector who conducted investigation destroyed evidence at the initial stage itself, and failed [B.A.7311,7508 & 7551/08] 7 to note down in the Inquest Report, certain injuries which were found on the neck of the deceased to make it appear that it is a case of "suicide".
4) The photographer, certain nuns etc., found the injuries on neck but, Sri. V. V. Augustine refused to record the evidence in the Inquest Report.
5) The Crime Branch gave a false Final Report that this is a case of suicide, only to help the convent authorities, under their strong influence.
6) Convent authorities, from the very right beginning wanted to suppress murder and tried to make it appear a case of "suicide", with a view to help the accused.
7) Injuries sustained by deceased cannot be
caused in a suicide, but it can be caused
only by homicide, as per evidence of
doctors/experts examined from outside
State of Kerala.
8) Evidence of "Adakka Raju" that he saw two
accused climbing the stair case at the back side of the convent on the crucial day at 3 am.
9) Sri. Sanju P. Mathew, a neighbour saw first [B.A.7311,7508 & 7551/08] 8 accused's scooter in the midnight near the convent on the previous night.
10) First accused made an extra judicial confession to Sri. Venugopalan Nair that he had illicit connection with accused no. 3 etc.
11) Certain priests and other witnesses speak about immoral activities of certain priests/fathers with female partners in the convent.
12) For the purpose of bail, it is not necessary to go into the various details in the case diary, but it is enough that a prima facie case is made out.
13) Another Bench of this court already
considered various aspects in Fr. Jose
Poothrikkayil's case (2008(4) KHC 902)
and accepted CBI's contentions and did not interfere in the order passed by the Magistrate's court in granting custody of accused to CBI and therefore, there is no ground to grant bail.
14) If petitioners are released on bail, they will abscond, influence/intimidate witnesses or tamper with evidence.
8. Learned Counsel appearing for Sr. Abhaya's father [B.A.7311,7508 & 7551/08] 9 raised the following grounds:
1) The convent authorities influenced officers of the local police as well as Crime Branch who, under the strong influence, suppressed various relevant facts and made it appear that this is a case of "suicide" and Final Reports were filed falsely stating it is a suicide.
2) Sr. Abhaya's father had to move the State Government and get the investigation conducted by the CBI and it was after a long battle that accused are now arrested by CBI and if petitioners are released on bail, they will destroy evidence and influence or intimidate witnesses.
3) Though nothing will happen in the convent
without knowledge of the convent
authorities, even CBI failed to arrest
accused and instead filed a charge sheet
on three occasions, stating that accused is not traceable.
4) The CBI edited even the CD relating to Narco Analysis and this fact was noticed by another bench of this court in the order in I.A.1614/2008 in WPC 35590/2007 and that was why the investigation was handed [B.A.7311,7508 & 7551/08] 10 over to the Kerala Branch of CBI.
5) The "church" influenced officials of the several investigating agencies and even officers of an agency like CBI were under strong influence of the "church" and convent and they failed to arrest accused.
It was with great difficulty that the arrest could be effected now after 16 years of investigation.
6) Officials of local police and crime branch,
under influence have destroyed all
major piece of evidence.
7) The relevant injuries found on the neck of
the deceased were not recorded in the
Inquest Report by the Additional Sub
Inspector to make it appear that it is a
suicide.
8) At this stage of bail, the court need not go
in depth into the facts and, the court may
also avoid detailed discussion of evidence, in the order to be passed. It is enough if the court finds that there is a prima facie case against accused. (Decisions are also cited).
9. While faced with the above seriously disputed facts, I shall firstly remind myself of my responsibility and the special [B.A.7311,7508 & 7551/08] 11 care that I must take while disposing of a bail application. It is well settled that in an application for bail, the bail-court should exercise its discretion in a judicious manner and any such disposal must be by passing an order, supported by good reasons. Therefore, it is absolutely essential that the order in an application of bail must contain a brief examination of the existence or otherwise of a prima facie case. The court shall indicate in the order in an application for bail, reasons why bail is being granted or is being rejected, particularly where the accused is charged of having committed a serious offence. Any order which is bereft of such reasons would be bad in law, since there will be lack of application of mind.
10. At the same time, the court must guard itself of another important factor. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken. This is mainly for the reason that the court has a duty to ensure that neither the accused nor the investigation/prosecution is prejudiced by any of the observations made by the court. If the case is at the initial stage of investigation, it is likely that any findings which may be entered into by the court in the order for bail is likely to affect or prejudice either of the parties adversely or favourably. Therefore, the court shall, as far as possible avoid entering of any definite finding or reaching any conclusion on facts, at the early stage of investigation.
11. It is held by Supreme Court in State of U.P. v. [B.A.7311,7508 & 7551/08] 12 Amarmani Tripathi,(2005) 8 SCC 21 as follows:
"While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties".
12. The Supreme Court in State of U.P. v. Amarmani Tripathi,((2005) 8 SCC 21) referred to Panchanan Mishra's case and reiterated the above principle as follows:
"In Panchanan Mishra case it has been held that the court must apply its mind and go into the merits and evidence on record and determine whether a prima facie case was established against the accused. It was held that the seriousness and gravity of the crime was also a relevant consideration".
13. In Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 3 SCC 284, this is what the Supreme Court held:
"The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course.
Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for [B.A.7311,7508 & 7551/08] 13 prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind".
14. Learned counsel for the father of deceased Sr. Abhaya also cited various decisions to argue that the court shall not discuss any detailed facts in a bail order. (vide Director, Central Bureau of Investigation v. Niyamavedi (1995)3 SCC 601), Zahira Habibulla H.Sheikh v. State of Gujarat ((2004)4 SCC158), Ram Bihari Yadav v. State of Bihar and Others (1998)4 SCC517, Paras Yadav and others v. State of Bihar (1999)2 SCC 126), Supreme Court Bar Association v. Union of India and another (1998)4 SCC411), State of U.P.Through CBI v. Amarmani Tripathi (2005) 8 SCC 21), Gobarbhai Naranbhai Singala v. State of Gujarat and others (2008)3 SCC 775). Therefore, with the above legal principles in mind, I shall proceed with my task:
15. Brief History: The investigation in this case spreads over a long period of 16 years and 8 months by now. Three agencies conducted investigation in this case. The local police commenced investigation on 27.3.1992 and a crime was registered as Crime no.187/92, under the caption "unnatural death", on the basis of the statement given by Sr.Leissue, Mother Superior of the Convent. Thereafter, it was followed by the Dy. S.P., Crime Branch with effect from 13. 04. 1992. A Final Report dated 30. 1. 1993 was submitted by Dy SP., CB CID stating that Sr. Abhaya committed "suicide". [B.A.7311,7508 & 7551/08] 14
16. Later, CBI took up investigation with effect from 29.3.1993. After completion of investigation, the first Final Report dated 29. 11. 96 was filed by Sri. A. K. Ohri, SP CBI , which reveals that CBI could not conclude whether it was suicide or homicide, because of mainly the medical evidence. It was however, reported, "assuming it to be a case of homicide, all possible efforts were made to determine the identity of culprits, if any, could have been involved in this tragic incident. However, our prolonged efforts, as indicated in the preceding paras, did not yield any fruitful results". The above report was not accepted by the Chief Judicial Magistrate's Court.
17. Hence, investigation was continued by CBI. Sri. Surinder Paul, Dy.SP/CBI filed the second Final Report dated 09.07.1999 stating that the "cause of death of Sr. Abhaya was "homicide". "Despite best efforts made during the investigation, the identity of the culprits could not be established" and a request was made to accept the report and treat the crime "as closed being untraced". The conclusion on "homicide" was reached mainly based on the medical opinion given by three doctors, as against the opinion given by Dr. C. Radhakrishnan who conducted autopsy on dead body of Sr. Abhaya. (the details will be referred to later). This report was also not accepted by the court.
18. Investigation by CBI again continued. Another Final Report was filed by Sri. R.R. Sahay, Additional SP., CBI stating that "the further investigation conducted on the points observed [B.A.7311,7508 & 7551/08] 15 by Hon'ble CJM, Ernakulam has not indicated involvement of any person in the death of Sister Abhaya" and a request was made that the "case be treated as closed as untraced'. This report is dated 25.08.2005 and it was also not accepted. Investigation continued. In the mean time, the investigation was handed over to the Kerala branch of the CBI under directions from another bench of this court, as per order dated 04. 09. 2008 in I.A. no. 1614 of 2008 in WP(C) 35590 of 2008.
19. CBI speaks against records: When the arguments commenced before this court, to my utter shock, I realised that neither CBI nor the accused nor Sr. Abhaya's father knew any thing about the actual facts relating to the case at hand. The submissions made by Sri. M.V.S.Nampoothiri, learned Standing counsel for CBI (on instructions from the investigating officer who was present in court) were found to be contrary to the facts contained in the case diary. Learned counsel for accused, however, conceded they have absolutely no idea about the details of the allegations made against them, except through the newspaper reports. Initially, they were arguing the case mainly on the basis of news paper and Television reports which are also not consistent with what I find from the case records. Learned counsel for accused also submitted that even though investigating officer is bound to state the relevant details while seeking remand of accused to police custody, no such details were furnished as held by this court in Fr. Puthrikkayil's case. According to them, accused were denied even permission to [B.A.7311,7508 & 7551/08] 16 have legal consultation with their counsel in a free atmosphere and hence, they are totally in the dark.
20. With the above type of assistance from the bar in this case, there can be no doubt that I will not be able to do justice to the cause. Therefore, it was necessary that at least the counsel takes proper instructions from the accused before they argue. I passed an order allowing third accused (who was admittedly residing in the hostel on the crucial night who might have some knowledge about the incident) to have consultation with the counsel so that it would be helpful for the court to dispose of the petitions. If necessary, I also decided to give similar orders to other accused also.
21. In the course of hearing of these petitions, what I felt was that the case was being argued not the basis of the contents of the case records, but on some surmises or conjuctures created by the media, by the flow of 16 long years. But, such wild ideas have absolutely no connection with the contents of the case records and I am concerned only with the case diary. It was argued that local police submitted a Final Report that the Sr. Abhaya committed "suicide" with a view to help the accused.
22. Local police concluded `suicide'? Learned Standing counsel for CBI unhesitatingly and emphatically argued that the local police (particularly, deceased Sri. V. V. Augustine, Additional Sub Inspector) tried to hush up murder ("homicide") and concoct a case of "suicide", and and for this [B.A.7311,7508 & 7551/08] 17 purpose, many manipulations were effected under influence of "convent" at the very early stage of investigation itself. Sri. A.X. Vargheese, learned counsel for Sr. Abhaya's father also supported this contention.
23. But, the case diary reveals that local police did not file any Final Report at all. They did not even conclude whether it was a "suicide" or "homicide". The case diary also reveals that local police considered both possibilities the Additional Sub Inspector, Circle Inspector etc. and recorded the various hypothetical manner in which "homicide" could have taken place. Still, it is unfortunate that allegations running contrary to the facts contained in the case diary are made against local police, by none other than an agency like CBI that local police filed a final report stating that it was a suicide with a view to help the accused etc.
24. Sri. V. V. Augustine hushed up `suicide'? The allegation that Sri.V.V.Augustine attempted to hush up "homicide" also goes against the contents of the case diary. Sri. V.V.Augustine, the Additional Sub Inspector conducted investigation only on two days, viz., 27 th and 28 th of April 1992. The details recorded by him would reveal that he consistently recorded that Sr.Abhaya will not commit suicide and that she had no reason to commit suicide. He made it appear that it was a homicide.
25. Even in the last entry made by him in the case diary on 28. 3. 1992, he recorded to the effect, 'may be, Sr. [B.A.7311,7508 & 7551/08] 18 Abhaya would have witnessed some thing objectionable on the crucial morning and some body who would have felt that he was identified by her would have done some thing to cause her death and dumped her in the well....and this fact cannot be denied/disputed'. This portion from the diary does not tally with the argument advanced that the officer attempted to suppress a case of "homicide" and convert it to "suicide".
26. It is relevant to mention in this context that though the above facts were brought by me to the notice of CBI's counsel at the time of hearing to get an explanation why CBI was making allegations contrary to facts and records, learned Standing Counsel did not give a satisfactory reply. I was, in these circumstances, forced to read out the above portion recorded by Sri. V. V. Augustine in the case diary to CBI's counsel, to facilitate the hearing and get an explanation. It only added up to my surprise, when learned counsel for CBI submitted that this court shall not read the case diary !! He also argued that various other courts have already accepted the arguments that Sri. V. V. Augustine manipulated case records to make it appear it is not a case of "homicide".
27. There can be no doubt that it is not a proper explanation from the CBI regarding the tell-tale entries in the case diary. It appears to me that all concerned in this case are carried away by the sensation created by the media and the reports made by them and that alone may be the reason why [B.A.7311,7508 & 7551/08] 19 arguments are advanced in this fashion, which are totally against the case records. It is unfortunate that allegations are still made by CBI against this departed soul, Sri. V. V. Augustine that he wanted to suppress a case of "homicide" and he tried to make it appear that it is a case of "suicide" etc., which are totally contrary to the contents of the case diary. (Sri. V. V. Augustine allegedly committed suicide leaving a suicide note that CBI is responsible for his death).
28. The court shall not read the case diary? I was also astonished to hear a strange argument from learned Standing Counsel for CBI that the court shall not read the case diary. In law, as per section 172 of the code of criminal procedure (`the code', for short), any criminal court has the power to send for the police dairies and also use the same to aid the court in any inquiry. Section 172 empowers the court to do it and the limited bar is only in using the diary which is recorded under section 172(1) of the code as evidence in an inquiry or trial.
29. In a bail application, the court has to come to a conclusion whether there is a prima facie case or not and to aid such inquiry, the court can certainly use the diary as contemplated by Section 172 of the Code. There can be no doubt that an opinion or any hypothesis expressed by a police officer in writing in the diary will not amount to any evidence and hence, there is absolutely no bar in using the said portion of the diary to aid the inquiry, as per section 172 of the code and [B.A.7311,7508 & 7551/08] 20 to reject the arguments which run contrary to the entries in the case diary.
30. Apart from this, while disposing of a bail application the court is bound to arrive at a conclusion whether there is a prima facie case or not. (vide Anilkumar Tulsiyani v. State of U.P (2006)2 KLT 508(SC) cited by learned Standing Counsel for CBI himself). According to me, such satisfaction can be arrived at only by reading the materials available in the case diary, particularly when the facts are disputed. Any way, on the facts of this case, it will be most unsafe for any court to act upon the wrong, incorrect and baseless submissions made at the bar, by the CBI which are also inconsistent with the facts borne out by the case diary. Most of the submissions made at the bar are supported only by certain newspaper reports which are far from truth.
31. According to me, in cases of disputes raised on the involvement of accused, court can reach a conclusion only after being satisfied of the relevant aspects by perusing the records. In fact, no other method is known to me (other than by reading case diary), to reach a satisfaction whether there exists a prima facie case or not or whether bail can be granted or not. No other alternative was suggested also, by CBI's counsel. In such circumstances, I can only reject these arguments, as unmerited, on the face of it.
32. "Church" influenced police to hush up "homicide" ? An argument was raised on behalf of the CBI that the Church [B.A.7311,7508 & 7551/08] 21 authorities deliberately hushed up "homicide" and they tried to make it a case of "suicide". They were allegedly aiding and shielding the culprits to escape by exerting influence on local police and Crime Branch to make it a case of "suicide", it is argued. I am surprised to hear such arguments which do not gain support from the case diary. Even a plain reading of the case diary shows that the nuns and the priests were taking efforts through out, to convince the police that it is a case of "homicide" and not "suicide".
33. Even on this 17 th year of investigation, none from the "convent" or "church" is seen to have claimed that it is a case of "suicide", as per the case diary. Not even a single line of statement could be shown to me from the case diary which supports the above allegations made against the convent that they made it appear to be a suicide. In fact, even after the Crime Branch filed a report stating that it is a "suicide", the investigation continued only because of efforts taken by certain nuns. It was at the instance of the "convent authorities" that the investigation was entrusted to CBI, that too, after the Crime Branch filed the Final Report stating that it is a case of "suicide". If the "convent/church" wanted the case to be hushed up as a "suicide", why did the "convent" again take steps to continue investigation by CBI alleging murder? There is no answer.
34. FIR by CBI on the complaint by convent: The FIR was registered by CBI on the basis of a complaint filed by nuns. Sr. Abhaya's father made a claim that it was at his [B.A.7311,7508 & 7551/08] 22 instance that the State Government entrusted the investigation of the case with the CBI. But the case records reveal other wise. A complaint which is signed by Sr. Banicassia, Mother Superior, and 67 other nuns of Congregation of mother of Carmel and 2 visiting nuns gave a complaint to the Honourable Chief Minister to entrust investigation to CBI, alleging it to be a case of "MURDER" and that the case was not being investigated into properly. It is based on this complaint that the CBI took up investigation on 29. 3. 1993, and registered the FIR.
35. It is incomprehensible why CBI and Sr. Abhaya's father still make an eye wash alleging that the "church" wanted to hush up "homicide"? The allegations that "church" /"convent" tried to hush up "homicide" and they tried to manipulate the case to one of "suicide" are baseless in the light of the fact that even the FIR itself was registered by CBI on the basis of a complaint filed by nuns. It can also be seen from the case diary that a very firm stand was taken by the "convent" since the beginning that it was a "homicide".
36. Strenuous efforts were taken by the First Informant in Cr. 187/1992, Sr. Leissue to indicate certain suspects to police. Based on the information given by her, several suspects were taken into custody, by the Crime Branch. Certain female inmates (not nuns) of the Pious Xth Convent hostel were expelled by the Mother Superior from the hostel since they were found roaming about in Alleppey with certain boys and Alleppey Police took them into custody .Thereafter, the boys allegedly [B.A.7311,7508 & 7551/08] 23 made threatening phone calls to the convent and hence, the convent suspected that those boys had a role in the incident and these facts were brought to the notice of the police. Some of those suspects were also taken into custody by Crime Branch.
37. Two of such boys had absconded and later, they attempted to commit suicide also, after writing suicide notes, and by cutting their vein. investigation was conducted involving these boys for a long period. To trace out these boys itself, sufficient efforts were taken by Crime Branch as revealed from the case diary. Despite all these, I am at a loss to understand why arguments are raised that the "church" took efforts to develop a theory of "suicide", by influencing Crime Branch etc., though the basis of even the present investigation by CBI itself is the efforts taken by "convent".
38. Disturbance in the kitchen: Now, coming to the facts, I find that the most crucial evidence placed before the court to support a case of homicide is, disturbance in the kitchen. The water bottle had fallen down near the fridge with dripping water, the veil was found underneath the exit door which was found locked from outside, the laches inside the door were kept unlatched, an axe and a basket had fallen down, two slippers of Sr. Abhaya were found at different places in the kitchen and altogether, the area exhibited an appearance of having had a tussle inside. This, according to CBI is sufficient to enter a conclusion that it was a homicide.
39. But, according to me, the question is not merely [B.A.7311,7508 & 7551/08] 24 whether there was a tussle in the kitchen or not. What has to be decided is whether an assault had taken place on Sr. Abhaya in the kitchen, as alleged by prosecution. The prosecution case is that Sr. Abhaya was strangulated by first accused and beaten up by third accused by means of an axe on the head thrice and all the three accused took her by force and dumped her in the well. She was conscious at that time. I shall consider whether there is any evidence to support this type of an assault at the kitchen.
40. Injuries on Sr.Abhaya: Sr. Abhaya had the following ante-mortem injuries as per the post-mortem certificate issued by Dr. Radhakrishnan are as follows:
"1.Lacerated wound 1.8x0.5x0.2 cm., oblique, on the right side of the back of head, the upper end being 3 cm above end 3 cm behind the top of ear.
2. Lacerated wound 1.5x0.5x0.3 cm, oblique, on the head 2.5 cm bend injury No.1.
3.Graze abrasion 4 x 3 cm., oblique on the right side of the back of trunk, 9 cm below the lower end of shoulder blade with an upward and inward direction.
4. Abrasion 1.5x1 cm., 2 cm below inury No.3.
5. Multiple graze abrasions over an area 12 x 6 cm on the outer aspect of right buttock, te upper boarder being 4 cm below iliac crest. The direction of the grazes were [B.A.7311,7508 & 7551/08] 25 upwards and inwards.
6. On dissection the scale tissues over an area 2 x2 cm on middle of the top of head were found contused. The scalp tissues over an area 7 x 5 cm around injuries Nos.1 and 2 were also found contused. The skull was intact. Brain showed localised subarachnoid haemorrhage underneath these contused regions. No sign of increased intracranial tension."
41. As per the case diary, the two lacerated injuries on Sr. Abhaya were bleeding injuries, though those were less than an inch in length and not even skull deep. Blood was seen oozing out from the head even after the dead body was extricated and kept outside. If the contentions of CBI are accepted, there must be blood at the scene or on the veil or the floor or the weapon. There must be at least a drop of blood anywhere in the area.
42. No blood on the scene: But, inspite of the fact that Sr. Abhaya sustained two bleeding injuries on the head, no blood was seen by any body on the scene, veil or the weapon which was found nearby. Not even a drop of blood was seen any where near the scene. If there was some blood, some inmate or a witness would have noticed it. But, inspite of sixteen years of investigation, no body is alleged to have stated that any drop of blood was seen on the veil or the scene or the weapon. CBI could not point out any scrap of paper which reveals that any witness saw any drop of blood at the premises. The above facts were pointed out by learned defence counsel [B.A.7311,7508 & 7551/08] 26 as a ground to rule out any possibility of an assault at the scene, as alleged.
43. It is needless to say that any investigating officer would ascertain from the witnesses whether any blood was found at the scene or on the weapon or some article found at the scene. The presence of blood is not some thing which any body would miss to notice. The place of occurrence is a women's hostel where there were 123 women inmates out of which only 20 were nuns. Though disturbance in the scene was clearly elicited and is relied upon also, regarding presence of blood at the scene, there is only a silence from the side of prosecution. There is no case that local police hushed up this crucial factor. The CBI has also not so far investigated and found out presence of any blood at the scene. In such circumstances, even if the kitchen was disturbed, it may be due to some other reason and it need not necessarily be due to any assault, as alleged, it is contended by the defence. The CBI has no answer.
44. CBI cannot confirm place of occurrence: It is curious to note that despite all the claim made by the CBI that scientific examinations, particularly, the Narco Analysis revealed the entire details of involvement of accused and how the incident occurred etc., I was astonished to find that CBI's counsel and even the investigator to be at a loss to explain, where exactly the incident happened. Towards the end of the arguments for CBI, I asked the Standing Counsel to explain where the incident occurred. A ready answer could not be [B.A.7311,7508 & 7551/08] 27 given by learned Standing Counsel for CBI. He immediately turned to the investigating officer who was present in court and consulted him and after some time, he came up with two answers.
45. According to learned Standing Counsel, the first answer was, it was "work area". Since, I felt that it was not tallying with the details in the records, I again gave time to explain where the incident happened. He took some time and confirmed that it is "work area". When I pointed out that as per the case diary, it appears to have happened in the "kitchen", investigating officer popped up with an answer that the place of occurrence is, "kitchen area". But, CBI has not made it clear which part of the hostel constituted "kitchen area" - the kitchen and work area are separated by wall.
46. Learned counsel for accused explained at this stage that the fridge was kept in the work area and so, if Sr. Abhaya had seen any thing in the kitchen, it is unlikely that she would go to the work area and take the water bottle. According to the defence, the CBI would find it difficult to explain the vital circumstances and hence, the place of occurrence is explained vaguely as "kitchen area". Learned counsel for the CBI as well as the investigating officer, appeared to have only some general and vague idea even about the most relevant aspects, even at this fag end of investigation, when specific questions were put to them.
47. CBI has no idea about weapon of offence:
[B.A.7311,7508 & 7551/08] 28 Even now, CBI does not appear to have any definite idea about the alleged weapon of offence also. The prosecution would vaguely claim that the weapon is an "axe". But, as per the medical evidence, the axe picked up by prosecution, as the weapon allegedly used for the offence from the scene would produce a fracture, even by a slight hit by it. Learned defence counsel also pointed out that the axe allegedly used was a huge one and if it is used to beat Sr. Abhaya, very serious injury including fracture could be expected. But, Sr. Abhaya did not sustain any fracture on her body.
48. According to prosecution, injuries on the head of Sr. Abhaya were caused by beating with an "axe". The injuries sustained by Sr. Abhaya on the head are less than an inch in length, being 1.5 and 1.8 cm. Those are not even skull deep. The weapon/axe seized by the CBI in this case on 07.04.1995, as per the mahasar is a huge one, having the following description: "one axe having 29 cms length and 7 cms blade width with a wooden handle having 84 cms length. Total weight
3. 250 kg". In this context, it is relevant to note that CBI reported in the Final Report that "the experts rejected the view that the axe found on the spot could be the weapon of offence, as because of the weight of the axe, the slightest impact could cause a grievous injury and hence, it was not capable of causing 1 and 3 of the postmortem report".
49. Learned Standing Counsel for CBI submitted that no axe was produced in court but , some axe of the choice of [B.A.7311,7508 & 7551/08] 29 the inmates of the hostel was shown to the doctor, while he visited the hostel and hence, the medical opinion formed on the basis of such a weapon will not be of any consequence. At this juncture, learned counsel for accused produced a copy of the seizure memo relating to an axe, which proves that the axe was produced in court and contended it must be this axe which would normally be put to the doctor while questioning. At this stage, he had no explanation to offer.
50. It is also interesting to note that when it was pointed out by me that as per the materials available in court (Narco Analysis Report), two weapons appear to have been used viz., a "hammer" and an "axe", learned Standing Counsel for CBI tried to explain that both could be one and the same, and it must be an "axe @ hammer"/ "axe-cum-hammer"!! But, no such axe is so far produced in this case. Even now, no weapon is traced out which could have caused the injuries sustained by Sr.Abhaya which are only minor in nature having a length of less than an inch.
51. Brain finger printing report negatives accuseds' involvement: Learned Standing Counsel for C.B.I. placed strong reliance upon the Brain Fingerprinting Report to argue that the involvement of the accused is proved by such report. A report dated 12. 06. 2003 by Dr. Mukundan on Brain Fingerprinting investigation reveals that several individuals were subjected to Brain Fingerprinting Investigation at the National Institute of Mental Health and Nuero Sciences, Bangalore, in [B.A.7311,7508 & 7551/08] 30 relation with the death of Sr.Abhaya on 27.3.1992. They include the accused and various other suspects also.
52. The report shows that the second and third accused were tested with probes suggesting direct involvement in the death of Sr.Abhaya and it is reported that they "have not shown any brain activation pattern supporting experimental knowledge of such an act". Learned counsel for the accused also pointed out that this fact was taken note of by the CBI itself and it is stated in the final report dated 25.8.2005 submitted by Sri.R.R.Sahay, Additional Superintendent of Police. The relevant portion from the said report is as follows:
"regarding the three suspects Sanju P.Mathew, Sr.Sephy and Fr.Poothrikkayil for probe of direct involvement in the death of Sr.Abhaya NIMHANS has reported that they did not show any brain activation pattern supporting experimental knowledge of such an act."
53. That means, the Brain Fingerprinting investigation report negatives the experience of second and third accused in the alleged murder of of Sr. Abhaya and their involvement in the murder and this fact is accepted also by CBI. It is not understood why arguments are still, advanced contrary to the scientific reports and the reports submitted by CBI itself that those reports prove involvement of accused in murder. (The polygraph tests also gave negative reports regarding their [B.A.7311,7508 & 7551/08] 31 involvement in alleged murder).
54. Narco Analysis Report and CD: Learned Standing Counsel for CBI argued that Narco Analysis Report is admissible in evidence under Section 21 of the Evidence Act. He placed reliance upon the decision reported in Chandran v. State of Kerala (1987(1) KLT 391), wherein it is held that an admission made to a doctor is admissible in evidence. It was strongly argued that the materials in the CDs themselves reveal guilt of the accused. I am not going into the question whether report on Narco Analysis is admissible or not , since it is unnecessary for disposal of the bail applications at hand. I have very closely watched the four compact discs made available to me which contain the videograph of the Narco Analysis of the three accused. Three independent CDs each of which contained the analysis of the petitioners and another single CD which contained three files each relating to the three petitioners were produced for perusal. Those are stated to be prepared by Dr.Malini, NIMHANS, Bangalore.
55. Three independent CDs which were produced before me are stated to be received directly from the Forensic Laboratory, Bangalore. A comparison of those CDs with the other single CD (containing the three files in one CD) reveals that all the CDs are not only edited but manipulated also. According to me, in all probabilities, those are edited and manipulated at the Forensic Science Laboratory itself, by the person or persons who were doing the analysis.
[B.A.7311,7508 & 7551/08] 32
56. The editing is clearly visible to the naked eye and to find out the evident editing even an expert may not be necessary. I could not find even a single CD which is unedited. I am not prepared to place any reliance upon the contents of the CDs on Narco Analysis or the reports submitted by Dr.Malini, for the reasons stated above. I have no doubt that if reliance is placed on the CDs made available to this court, the court and the investigator will go wrong in making conclusions. I am making these observations because the court is entitled to monitor investigation, as held in Sakiri Vasu V State of Utter Pradesh and others (2008)2 SCC 409). Therefore, it is necessary that the investigator takes all steps necessary to retrieve the unedited original video containing Narco Analysis of all the accused, before he proceeds any further to act upon those CDs. I have no doubt that the edited and manipulated CDs and report on Narco Analysis by Dr.Malini may mislead the investigation.
57. Sri. V. V. Augustine concocted evidence? An allegation is made that Sri. V.V. Augustine deliberately noted the time of recording of First Information as 8. 30 am, but a plain reading of FIS shows that the FIS would not have been recorded at that time. It is true that time shown in FIS is 8. 30 am. Of course, the date and time recording of First Information is very vital and no police official shall commit a mistake on these aspects. But, for the mere reason that a date or time is wrongly mentioned, can anybody attribute any motive to any police officer? If so, CBI also will have to answer for the mistake in the [B.A.7311,7508 & 7551/08] 33 date shown in the case diary.
58. A perusal of the case diary shows that Sri. Vargheese P. Thomas, Dy. S.P., CBI recorded the date of registration of FIR as 29. 3. 1989 , ie., three years prior to the death of Sr. Abhaya. (vide page no.1 in case diary volume -5). Thus, the two officers who recorded the relevant entries at the time of recording of FIR made vital mistake. But, the question is, why? Can it be said that it was to manipulate some thing? According to CBI, every mistake committed by local police/Sri.V.V.Augustine was to make the case of a homicide, a suicide. If that be so, why did he prepare a case diary which indicate that there was no possibility for Sr. Abhaya to commit suicide, but it could be a homicide? If he had intended to suppress a case of homicide, why did he record in the diary, even a hypothetical case of "homicide", which more or less tallies with the present theory of "homicide" put forward by the present investigating team? It is for the present investigator to think about all these facts in depth, before attributing motives to officers of other agencies for each and every single mistake committed without considering whether it is inadvertent or not.
59. Injuries suppressed: The CBI is putting forward a case that Sri. V. V. Augustine deliberately failed to note down in the Inquest Report, the homicidal injuries found on the neck of the deceased Abhaya, though those were pointed out to him. It is true that the Inquest Report does not show any injuries on neck. According to prosecution, certain marks were found on the [B.A.7311,7508 & 7551/08] 34 neck of Sr. Abhaya which are sufficient to prove the case of an assault by accused. But, those were deliberately suppressed by Sri. V. V. Augustine, is the argument.
60. There is only one answer to this. The doctor who conducted autopsy has not noted any injuries on the neck. Dr.C.Radhakrishnan who conducted autopsy is not disbelieved by CBI. On the other hand, his report is accepted by them. If that be so, why an attack on Sri.V.V.Augustine alone? Why he is found fault with for not noting an injury which did not exist, if the postmortem report is accepted ? (It is relevant to mention here again that Sri.V.V.Augustine allegedly committed suicide, fastening responsibility on CBI for his death). As far as existence of injuries are concerned, the evidence of the doctor is relied upon by the courts in preference to any other evidence, unless there are reasons to doubt veracity of the evidence of the doctor who conducted autopsy.
61. Material Objects destroyed by Crime Branch?: An allegation is made by the CBI that Crime Branch was instrumental to deliberately destroying the material articles. But, as per the case diary, material objects were destroyed in an routine official manner by the Executive Magistrate and not by the Crime Branch. The Crime Branch had closed the investigation and submitted a Final Report as early as on 30. 1. 1993. But, the articles were destructed only after about six months in June, 1993, much after filing of the Final Report by the Crime Branch. At the time when articles were destroyed, [B.A.7311,7508 & 7551/08] 35 Crime Branch was nowhere in the picture.
62. However, case diary reveals that the CBI had taken up investigation in March, 1993 and if the CBI wanted to preserve the relevant articles, they should have taken steps to prevent destruction. They did not do so. It was only after about three months of registration of FIR by CBI and thereafter that the articles were destroyed. Things being so, CBI appears to be fishing out for reasons contrary to truth and records to put the blame on the other investigating agencies who conducted investigation, to cover up their own laches. This is quite unfortunate and uncharitable. By placing these types of arguments, CBI cannot take the court for a ride. They dial a wrong number.
63. Sri. Vargheese P. Thomas and his investigation:
Sr. Abhaya's father identified Sri. Vargheese P. Thomas as the only honest officer who did not yield to pressures from outside agencies. He is the first person who allegedly detected foul play and the fact that it was a case of homicide. According to Sr. Abhaya's father, he could not continue investigation only because of external interference. So, it will be worthy for me to consider the steps taken by him in investigation in this case.
64. A perusal of the case diary maintained by CBI during relevant period shows that the FIR was registered by Sri. Varghese P. Thomas, Dy. S.P CBI on 29. 03. 1993. But, he did not question even one single witness or do anything in particular for about two months. He did not take any steps to [B.A.7311,7508 & 7551/08] 36 see that the material objects are preserved and not destroyed by the Magistrate. It was only on 20.5.1993, after two months of registration of crime that he, for the first time, questioned eight witnesses. Investigation continued and on 7.7.1993, only one witness was questioned. In the progress report dated 16.7.1993 (at page 184 case diary Volume 5), it was noted by his superior officer that during the period under review investigating officer could examine only one witness, who only corroborated what others stated.
65. In the meantime, the Superintendent of Police, CBI was also making observations against him that substantial progress could not be made by him. Sri.Varghese P.Thomas was therefore, instructed to take up this case and expeditiously complete it (vide page 193 case diary volume 5). A memo was also issued by the superintendent of Police on 18.9.1993 that progress report due on 13.8.1993 could not be sent for want of up to date series/material, and he was directed to submit the material.
66. In progress report dated 22.11.1993 (at page 197 of case diary volume 5), it was noted that though he was attending Hamsa trial, he could have attended to the investigation of this case, since trial confined to four days of the week. The Superintendent of Police also remarked, this is not a very responsible attitude on the part of the investigating officer. Page 199 of case diary volume 5 contains the following observations dated 10.12.1993 of Deputy IG of Police, CBI;
[B.A.7311,7508 & 7551/08] 37 "it is for the Branch SP to take work from an Investigating Officer. If there is no progress in any investigation without adequate reason, the blame will be very much on the Branch SP first and on the IO next."
67. Under these circumstances, the case was transferred from Sri.Varghese P.Thomas to Sri.C.K.Balakrishnan Nair, Inspector, CBI and from him, to Sri.K.V.Harivalsan Dy.S.P. for continuation of investigation as per order dated 30.12.1993. No entries are available in the case diary regarding steps, if any, taken by Sri.Balakrishnan Nair, except that he handed over the records to Sri.Harivalsan, who started investigation on 9.3.1994, in continuation of the last CD dated 7.1.1994 (vide page 2 case diary- volume 6).
68. Any way, this is the manner in which the investigation was proceeded with by Sri.Varghese P.Thomas, after registration of the crime by the CBI for about one year. In the mean time, many items of evidence vanished in the normal course, but nothing was done by him, who is an officer of the rank of Dy SP CBI, to prevent destruction of records which he could have easily done. But, now the blame is put on the Crime Branch who closed investigation about six months prior to the destruction of articles that the Crime Branch has destroyed the same.
69. In this context it is relevant to note that even an additional Sub Inspector of local police station like Sri. V. V. [B.A.7311,7508 & 7551/08] 38 Augustine did considerable work in investigation. Within just two days, he examined as many as 24 witnesses and even modulated possibility of a "murder" in his own way, on the very next day of registration of the crime, which is more or less consistent with the present allegations (whether it be true or not). He also prepared inquest report etc. But, to cover up the laches, it appears that the CBI is making an eye wash and criticising other investigating agencies for every silly mistake which is noted.
70. It is needless to say that a blemishless investigation is yet to be born. It is not every mistake that counts. There must be strong reasons to support allegations of motives levelled against any officer who performs his official duties whether he belongs to local police, Crime Branch or CBI. The mistakes cannot be blown out of proportion only to tarnish the image of an officer or an investigating agency, as a whole.
71. In this context, it is relevant to mention that in one of the reports, a senior official of the CBI even expressed an opinion that the investigation by Crime Branch was on proper lines and it was unnecessary for CBI to take up the case. Despite this, it is unfortunate that the present team of officers of CBI are putting forward baseless allegations against other agencies. Do they mean to say that their own officers were also making under influence of the Church ? Do they put any one of such officers of the CBI in the dock ?
72. Suicide or homicide? The medical opinion of the [B.A.7311,7508 & 7551/08] 39 doctors, particularly that of Dr. C. Radhakrishnan is more indicative of a suicide rather than a homicide. According to him, Sr. Abhaya was conscious even after the fall in the well and hence death was due to drowning. The Crime Branch accepted the theory of suicide since according to them, there was no reason to dispute the medical evidence. They tried to explain disturbance in the kitchen by saying it could be caused in a frenzy, since she was depressed etc.
73. Evidence was collected to establish that Sr. Abhaya's mother and uncle had some mental illness. Her mother's brother attempted to commit suicide by jumping into well not once but on more occasions than one. She was in her menstrual periods as per the postmortem examination report. The medical opinion is that it is possible to have some disturbance during this time. Sr. Abhaya scared only 5% marks in the examination and she did not pay Rs. 1000/- which was due to the convent as her father was irresponsible. She was disturbed because of all these reasons.
74. In the third Final Report filed by CBI, referring to Sri. Thyagarajan, SP CBI it is recorded as follows: "Sri.Thyagarajan has further stated that after fully applying his mind to the facts and circumstances of the case, he has come to a considered opinion that CBI should not have taken up this case and investigation being conducted by Crime Branch was found to be in correct lines. He had come to the conclusion that Sr. Abhaya had committed suicide as the circumstances at site, the [B.A.7311,7508 & 7551/08] 40 background of Sr. Abhaya's death were found consistent only with suicide".
75. The Crime Branch ruled out the theory of "homicide" only in the light of medical evidence that possibility that of a deliberate attack with an axe will produce grievous hurt. This was based on the opinion of Dr. C. Radhakrishnan, who conducted autopsy and also that of Dr. Umadathan who supported him. This fact is stated in the Final Report submitted by the Crime Branch. The CBI has no case that Dr. Radhakrishnan created any false records or suppressed any injuries. On the other hand, CBI also places reliance upon his evidence. The CBI, in the first Final Report also found it difficult to accept the case of a homicide in view of medical evidence.
76. Other medical evidence: in such circumstances, medical opinion from doctors working outside Kerala State is relied upon to establish it as a case of homicide. Dr. S. K. Pathak, Jaipur, Dr. Mahesh Verma, Jaipur and Dr. G. R. Bhaskar Hyderbad were questioned. Out of these doctors, CBI makes special mention of Dr. Bhaskar and his report. The relevant portion from his report will be self-explanatory. Hence, I extract the following so-called "medical opinion" given by him:
"The presence of the veil, stuck under the kitchen door appears INCONGRUOUS.
Normally, the veil is worn along with the nun's "habit". During the early hours in the morning, soon after getting out of [B.A.7311,7508 & 7551/08] 41 bed,it is highly improbable that Sister Abhaya, when she went down to the kitchen to get a glass of water was particular about wearing the veil when she was still wearing a casual dress in which she went to sleep....."
77. Following above type of "medical advice", he also stated that certain injuries can be caused in this manner or other manner etc. I have no comment to make on these types of "medical opinion" given. Learned Counsel for the accused argued that the evidence of the expert who conducted autopsy has to be preferred to the others who have not seen the injuries. The injuries and the details of the weapon are already stated by me in this order. Considering the three reports of the doctors who were questioned by CBI, the CBI itself came to the conclusion that the medical opinion is split on the theory of homicide. At any rate, In the light of the opinion expressed by Dr. C. Radhakrishnan, which is acceptable to CBI also, how can the theory of a "homicide" still hold good, the defence questions.
78. Was Crime Branch Final Report accepted? The case diary does not show whether the final report of the Crime Branch was accepted or rejected. So, the question whether it was a suicide or not is still open. If the report is not rejected, it may have its own legal consequences. The order of the Executive Magistrate is not available before court to conclude whether the Final Report was accepted or not. Since many of [B.A.7311,7508 & 7551/08] 42 the facts stated by CBI are contrary to facts, unless the order of the Executive Magistrate is seen, it cannot be said whether Final Report of Crime Branch is accepted or not. It is not known whether notice was issued to de facto complainant before accepting or rejecting the Final Report. It is therefore essential to find out whether the Final Report filed by Crime Branch was accepted or not. Though it is recorded in certain reports of CBI that it was closed, it is difficult to place any reliance upon such reports, without seeing the actual order passed by the Executive Magistrate on the report.
79. What witnesses speak: The CBI relies upon the evidence of one Adakka Raju, Sanju P. Mathew, certain priests etc. 'Adakka Raju' is the star witness in this case. He is admittedly a 'star thief', who committed several thefts from various places. He was convicted in several cases. According to prosecution, he committed theft of the instrument used for protecting the building from lightening and thunder which was installed in the terrace of the hostel part by part, on two occasions. On the third occasion, when he came to steel the same article, he allegedly found two persons coming towards his side, lighting torch. He hid himself and watched their activities.
80. Those two persons allegedly climbed the spiral staircase which led from the cellar to the 5th floor and the terrace. These persons reached the terrace and they turned against each other in different directions and they lighted their torches over the parapet wall of the terrace situated on top of [B.A.7311,7508 & 7551/08] 43 the fifth floor and were looking towards the ground. He felt that he was identified by them and he left the place. This happened more than 16 = years back. But recently when the accused were arrested and their photographs came in the newspaper he went to the C.B.I. and stated that the first accused was one of the persons whom he had seen on that day.
81. According to prosecution, these persons had gone to meet the third accused, with whom they had illicit relationship from the kitchen which is situated in the cellar. Instead of getting into the kitchen at the earliest, they had allegedly climbed up the stairs all the way leading to the terrace on fifth floor. The spiral staircase starts from the cellar region. It is on the strength of this statement that this Court is called upon to detain three persons further in prison.
82. Sanju P.Thoms only stated that a scooter of "kottorachan" (first accused) was found near his house (ie., near the Convent) in the midnight at about 12.30 a.m. on the crucial day and that he is residing close to the Convent. Except this one line, no other incriminating statement is made by him against accused. Learned counsel for accused poses only one question -- is the C.B.I justified in seeking detention of accused on the basis of this evidence? Various witnesses were also questioned by CBI and according to them, A1 to A3 were not morally good. But, their evidence is based on rumours. Even if the entire evidence is accepted, the question is whether such alleged immorality would prove the guilt of the accused.
[B.A.7311,7508 & 7551/08] 44
83. Sri. Venugopalan Nair is another star witness.
According to prosecution, he is the person to whom first
accused made an extra-judicial confession. As per the
statement given by him, he was a driver and now a human right activist and a public interest litigant. He was questioned for the first time by the present investigating officer after the incident. According to prosecution, he was interested in knowing details of Narco Analysis and he came to know that first accused had undergone that test. Therefore, he made enquiries and procured his telephone number and contacted him over phone. The first accused agreed that he could meet him in the Bishop's house. Accordingly, he went there and talked to him while the first accused pleaded with him to somehow get an order from the High Court by filing some case that Narco Analysis test is totally untrustworthy scientific examination.
84. Sri.Venugopalan Nair wanted first accused to state why he required the details. When he made detailed enquiries to him, he confessed to him (about five months prior to his arrest) that first accused had illicit relationship with third accused and that "there was a man inside the cassock" and that his superiors in the Church are also human beings having same feelings and sentiments and hence they understand him and help him in this case. The witness told him that to file a case is an expensive affair, after consulting junior of Sri.Janardana Kurup. First accused told him that Church authorities are prepared to spend even Rs. 1 crore for this purpose. He gave Rs.5000/- to [B.A.7311,7508 & 7551/08] 45 him for his travel expenses.
85. According to prosecution, first accused and and Church authorities are so powerful and rich and they can influence any person under sun. The defence would argue it is unbelievable and highly improbable that first accused would act in the manner alleged by the witness and make shameless confession and seek help from a person like the witness with whom he had not even any close contact. First accused is a Professor in B.C.M. College who has Doctorate in Psychology and he is also a Priest. He is a Chancellor in the Bishop's house, who had close contact with several important persons in the District and the State itself and it is unfortunate that CBI introduces witnesses like Venugopalan Nair and creates false evidence, it is submitted. The evidence of a few priests and other persons are also referred to by CBI as relevant. They speak of clandestine affair of certain priests and nuns in the hostel. Their evidence, on a deep srutiny, shows that it amounts to hearsay. Learned defence counsel submitted that refusal of bail, relying upon such artificial evidence will result in great injustice.
86. Conduct of third accused: It was argued that the conduct of third accused in occupying the room all alone in a cellar shows her character. I can only feel pity for the CBI in trying to place such arguments before this court. The case diary reveals that the rooms are allotted to the inmates by the Mother Superior and nobody can chose to stay in a room of her own [B.A.7311,7508 & 7551/08] 46 choice. It is also revealed from the case diary that she is not occupying the room alone. She shares the room with a senior nun, Sr. Helen whom she assists. It so happened that on the date of occurrence, Sr. Helen was not in the hostel. It is also in the case diary that she was forced to occupy the room, when she had to vacate the room which she was originally occupying to accommodate another inmate in the hostel.
87. Then, the virginity test. Was it necessary for the CBI to prove in this case that the third accused is not a virgin? Learned defence counsel pointed out that having made to undergo the virginity test and alleged hymenoplasty is done, now it is the duty of the third accused to disprove the concocted piece of evidence relating to hymenoplasty, if she has to survive in the society. She is prepared to undergo any test before any Medical Board of the choice of this court, to prove that she had not undergone any such surgery as alleged by prosecution, it is submitted. According to learned defence counsel, hymenoplasty can be conducted only outside India and third accused has not gone out of India in her entire life.
88. On the facts of this case, in my view, a virginity test was totally unnecessary. It was unfortunate that the third accused was subjected to such a ridicule, which does not serve any purpose, other than making an attempt to throw mud on a nun in public. It is even more unfortunate that the private parts of a nun are made to be discussed in public, without serving any purpose for the case. The virginity test has helped only to [B.A.7311,7508 & 7551/08] 47 make a nun a subject of public ridicule and nothing more. I really wonder whether CBI will embark upon the task of proving potency of the alleged male partners! I maintain my judicial restraint because, this is only a bail application.
89. A chase for the shadow: Altogether, on a close perusal of the case diary, I find that there is only a chase for the shadow, rather the object in this case. This chase is only a futile exercise. investigation means, to carefully examine the facts of a situation, an event, a crime, etc., to find out the truth about it or how it happened. It is not to fix the target first, without any evidence and then make a hunt for evidence. On going through the case diary and by putting my brain into the materials available in the case diary, it appears to me that the investigation is going off the track, derailed. I find some very relevant materials in the case diary, on which, investigators must pay attention. Unless it is done, soul of Sr. Abhaya, (if there is a soul) will not rest in peace, even by this last hour development in the investigation. Hence, it is my duty to indicate those materials to the present investigation team who shall make an in depth study on these materials before they proceed any further on investigation. This shall be done under supervision of more experienced superior officers in the CBI who can guide them appropriately and there shall be a direction, accordingly.
90. A clue for investigation from the scientific study: According to me, a look at the Brain Fingerprinting [B.A.7311,7508 & 7551/08] 48 investigation Report by Dr. Mukundan dt.12.6.2003 will be a worthy exercise for the investigators. The following facts are revealed from the said report:
i) the test findings support experimental knowledge that the kitchen area was disturbed during a struggle with the deceased by Smt. Thressiamma and Smt. Achamma, Sr. Stephy (A3) and Sr. Shirly (who is Sr. Abhaya's room mate). (This means, the above persons had experience about disturbance in the kitchen);
ii) the related probes depicted that Smt. Thressiamma and Smt.Achamma had helped Sr. Shirly from preventing Sr. Abhaya from running out of the kitchen;
iii) Sr. Shirly had first hand information of the disturbances in the kitchen, as she too witnessed the scene. (She was the only person who was found visibly upset during testing);
iv) the possibility of Sr. Sephy personally
involved in the murder of Sr. Abhaya was
tested but findings did not support the
same;
v) on an investigation done on the various
inmates of the hostel on the condition of Sr. Abhaya, there was overwhelming indication [B.A.7311,7508 & 7551/08] 49 that Sr. Abhaya was depressed before her death; and
vi) there was existence of experimental knowledge of such condition of Sr. Abhaya gained by inmates who lived with the deceased, by the presence of electrical activity to the related probes.
91. I fail to understand why the above most relevant part of the scientific examination went unnoticed or rather ignored by the investigators. Dr. Mukundan has reported that he did not make a further probe into these areas, since there was no request from investigators. Right or wrong, if a probe had been done in the lines indicated in the scientific study, it has to be looked into whether most of the main disturbing features, which the investigators found it difficult to explain, could be explained:
i) The disturbance in the kitchen; ii) absence of blood in the kitchen or the surrounding areas; iii) the unlatching of the door from inside; iv) the latching from outside; v) the fallen veil without blood vi) the nature of injuries in the postmortem report which do not correspond to the weapon found at the scene; vi) the definite medical opinion given by Dr. C. Radhakrishnan on possibility of a suicide; vii) absence of any homicidal injuries on the deceased; viii) conscious state of Sr. Abhaya in the well and death due to drowning; ix) absence of any hue and cry from Sr.Abhaya; x) the fact that the dogs did not bark etc., can these be better explained, has to be probed into. The Brain [B.A.7311,7508 & 7551/08] 50 Fingerprinting investigation report by Dr.Mukundan was prepared as long back as in 2003.
92. The investigators have to find out whether a better and clearer picture can be obtained by exploring the details in the above scientific study. If the indications in the above scientific report are true, a larger question may arise, why the suicide was kept as a secret?
93. Facts being so....... The facts being so, much has been done in the sixteen years by the media and the public, without knowing what the 24 volumes of the case diary contained. They knew little about the different reports of scientific experts which run to pages, the various medical reports and the statements of the doctors, the brain finger printing investigation reports prepared by the scientific experts, the compact discs (video CD) relating to Narco analysis which are collected from the Forensic Science Laboratory by the strenuous efforts of this court, the value or worth of them, their legal validity,or the admissibility or the efforts taken for the preparation and collection of those materials and the various Final Reports filed after detailed investigation by different agencies. None of them could ever worry either the media or the public.
94. But, media has pronounced the verdict already without looking into any of the above facts. The public has also joined hands, being carried away by the various publications effected through media, which do not contain the bare true [B.A.7311,7508 & 7551/08] 51 facts which are revealed by the case records. A democlean sword of a threat of ill-repute is held over the head of any judge who may ever dare to lift his/her pen and write or speak any thing contrary to the "media-public verdict" which is already pronounced. The three persons are already sent to gallows. Then, why the system of criminal justice exists any more in this country? Many investigators, various officers of local police, Crime Branch, the "church", the "convent" and several others, dead and alive, are all in the dock. Even after the death of certain witnesses, allegations by media and public still haunt them.
95. Poor public. They do not know what the records bear. By the sustained brain washing on them, they may not be able to even accept any judicial pronouncement, which may run contrary to what they are made to believe so far. Honestly. The courts can go only on the basis of the facts covered by the case records. But, the public still chase the mirage. They fail to realise that the truth lies far away. I wish to state only these two lines: "Forgive them, Father. They do not know what they are doing" !!
96. But, judges are made up of stronger metal. They do not, like candles, burn out or melt away in the heat of any threat which they may find on the next day's media head-lines. They shall, and can, act only on the basis of the facts contained in the records and, as per law. Even if heaven falls down, justice shall prevail.
[B.A.7311,7508 & 7551/08] 52
97. To conclude: I do not think, I have spoken any
thing more than what I am expected to speak in a bail order. The facts in this case lie as ocean over a period of more than 16 = years of investigation. Much more have to be stated but, I have confined myself to the bare minimum required for disposal of the bail applications.
98. In the mean time, even if any observations have crossed the boundaries in any manner, I make it clear that those are made only for the purpose of deciding whether bail can be granted or not. Those shall not have any bearing in any other proceedings. As the Supreme Court held in CBI v. Pradeep Bhalchandra Sawant, (2007) 7 SCC 344, "the reasons given in an order granting bail can only be understood as supporting an order granting bail with only the consequences that flow from it. The observations cannot control the decision to be taken after trial by the court concerned."
99. On hearing all concerned and on going through the case diary and the facts and circumstances of the case, I have no hesitation to hold that any further detention of petitioners in jail on the basis of the materials placed before me will result in gross miscarriage of justice. So, nothing shall prevent me from passing an order for bail. However, I find it necessary to impose conditions, for preventing any possibility of alleged tampering of evidence, influencing or intimidating witness or even chances of absconding.
[B.A.7311,7508 & 7551/08] 53
In the result, bail is granted to petitioners on the following terms and conditions:
(1) Petitioners shall be released on bail on their executing bond for Rs. 1 lakh with two solvent sureties each for the like sum to the satisfaction of Magistrate Court concerned on the following conditions:
i) Petitioners shall report before the
investigating officer, as and when
directed and co-operate with the
investigation.
ii) Petitioners shall produce their Passport, if
any, before Magistrate Court concerned,
and if it is not in their possession, file an affidavit to that effect, within seven days from the date of release from custody.
iii) Petitioners shall not leave the place where they are housed (which shall be intimated in writing to the Magistrate Court) except with the previous permission of learned Magistrate.
iv) Petitioners shall not use any telephone until further orders , and in case, they make or receive any telephone call while on bail, bail is liable to be [B.A.7311,7508 & 7551/08] 54 cancelled.
v) Petitioners shall not even indirectly, do any acts whatsoever to influence or intimidate any witness or tamper with evidence and, in case of breach of this condition, bail is liable to be cancelled. (2) The investigation by the present team of officers shall be continued hereafter only under strict and immediate guidance and supervision of a more competent and experienced senior officer or team of officers of CBI, in the light of the observations made in this order. The details of the supervising officers shall be furnished to this court without any delay.
These petitions are allowed.
K. HEMA, JUDGE.
Krs/Vgs.