IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 Bail Appl..No. 7311 of 2008() ----------------------------- (CRIME NO.RC8(S)/93/SPE/KER/CBI) PETITIONER/3RD ACCUSED:- -------------------------------------------- SR. SEPHY, ST. PIOUS XTH CONVENT AND NOW AT ST. JOSEPH'S, CONVENT, THURUTHIKAD. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA RESPONDENT(S): --------------- UNION OF INDIA, REP. BY THE PUBLIC PROSECUTOR, C.B.I., HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1 SRI.A.X.VARGHESE FOR ADDL.R2 SRI.A.V.JOJO FOR ADDL.R2 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/12/2008, ALONG WITH BA NO. 7508 OF 2008 & BA NO . 7551 OF 2008 THE COURT ON 01/01/2009 PASSED THE FOLLOWING: 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 ½ 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