Full text of Kerala High Court Order granting bail to the accused in Sr.

ABHAYA murder
case...

 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.