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Full text of Kerala High Court Order granting bail to the accused in Sr. ABHAYA murdercase...
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
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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
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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:
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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.
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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
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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.
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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
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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
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[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.
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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
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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
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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
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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 consideringthe question of bail, to ensure that there is no
prejudging and no prejudice, a briefexamination 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 gointo the merits and evidence on record and
determine whether a prima facie case was
established against the accused. It was heldthat the seriousness and gravity of the crimewas also a relevant consideration".
13. In Kalyan Chandra Sarkar v. Rajesh Ranjan
(2005) 3 SCC 284, this is what the Supreme Court held:
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"The law in regard to grant or refusal of bailis very well settled. The court granting bail
should exercise its discretion in a judiciousmanner 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 thecase 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
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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
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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,
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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
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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
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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
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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).
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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
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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
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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,
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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
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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
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[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 belowthe 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
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upwards and inwards.
6. On dissection the scale tissues over anarea 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 skullwas 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
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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
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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
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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,
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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'
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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 andFr.Poothrikkayil for probe of directinvolvement 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
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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
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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
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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,
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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
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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."
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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?
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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
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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
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= 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:
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(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
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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.