23 Jun 2022 10:35 AM GMT
The Kerala High Court on Thursday granted bail to convicts Sister Sephy and Father Thomas Kottoor as an interim measure, suspending their sentence till the disposal of the appeal in the 1992 Sister Abhaya murder case. They were convicted for murder and sentenced to life imprisonment by a CBI Court at Thiruvananthapuram in December 2020.While allowing their plea to suspend the sentence, a...
The Kerala High Court on Thursday granted bail to convicts Sister Sephy and Father Thomas Kottoor as an interim measure, suspending their sentence till the disposal of the appeal in the 1992 Sister Abhaya murder case.
They were convicted for murder and sentenced to life imprisonment by a CBI Court at Thiruvananthapuram in December 2020.
While allowing their plea to suspend the sentence, a Division Bench of Justice K Vinod Chandran and Justice C. Jayachandran raised prima facie doubts about the testimonies given by several prosecution witnesses before the trial court.
"On a prima facie look at the evidence as pointed out by the defense, and not effectively countered by the prosecution, we cannot but release the two accused, as an interim measure, suspending their sentence till the disposal of the appeal", the Court said.
"We are undaunted by the fact that the accused are ordained members of a church nor intimidated by the outrage displayed in public," the Court said.
Following are the doubts raised by the Court:
Adakka Raju, examined as PW3, was a crucial witness in the case. He was a thief who said that he saw the first accused Father Kottoor at the convent at night. His testimony was relied on by the CBI Court to hold that Kottoor was present at the convent at the time of the crime.
The High Court noted that the deposition of Adakka Raju was prima facie doubtful.
"PW3 also spoke of having seen A1(Father Kottoor) in torch light on the previous night; with whom he had no prior acquaintance. He says he also recognized the said person from a crowd near the convent on the next day morning. He saw A1, as per the prior statement, in pitch dark from near the cocoa tree of the neighboring property; while A1 was in the terrace of the five-storied building of the Convent. PW3 in Court, said he saw two persons approaching the staircase of the Convent, from the next property separated by a wall. Both these versions are highly improbable and in any case not sufficient to enable a valid identification, inter alia, as there is no source of light spoken of."
The Court further noted that the Section 161 statement given by PW3 was taken 15 years after the alleged crime. There was no Test Identification Parade done to identify Kottoor, who was arrested in 2008.
"The first identification of a person, whom PW11 saw in the year 1992, was made at the time when he deposed before Court in the year 2019, making it a very weak piece of evidence", the order stated.
The division bench also cited other discrepancies in PW3's evidence, such as he feigned ignorance of the person to whom he used to sell stolen articles.
Prosecution Witness 6, a social worker Kalarcode Venugopalan Nair, deposed before trial court that Kottoor had confessed to him about affair with Sister Sephy.
"This is styled as an extra-judicial confession; quite strange since the crime alleged is of murder and not lewd immorality", the Court noted in this regard.
"We cannot but notice that A1 is not being tried for the illicit relationship with a woman, even a nun and if at all it is established, it does not establish his involvement in the crime, unless there are other cogent circumstances", the Court added.
The Court also took into account the fact that PW3 had not mentioned the name of Sister Sephy in his statement recorded under Section 161 CrPC.
Two doctors, examined as PW19(Dr Lalithambika Karunakaran) and PW29(Dr P Rema), deposed before the Court that Sister Sephy(A3) had admitted that she had sexual interaction with a relative without actual penetration.
In this regard, the High Court asked if such conduct of A3 offers any connection to her relationship with A1.
"...A3 is not on trial for her loose morals or character flaws", the High Court said.
The Court also noted that there were "glaring interlopations" in the medical report regarding the hymen examination of A3. It further said that the PW19's opinion was not definite regarding any surgical intervention to repair the torn hymen and that the evidence was suggestive of only a possibility.
"The opinion is not definite and the probable inference again is a breach of the chastity vows, which again do not establish the relationship with A1 or the alleged escapade on the crucial night or more critically connect A3 with the crime of murder", the Court said.
The High Court opined that it "expected the two Doctors, who were constituted as a team, for the examination of A3, to have carried out a joint examination and made a comprehensive report of the findings, both, agreed upon and differed from".
The High Court also raised doubts about the evidence given by the doctor (PW33, Dr C Radhakrishnan who performed the post-mortem examination) on the ante-mortem injuries sustained by Abhaya.
He had deposed that the possibility of injuries numbered as 1, 2 & 6 being caused by assault by a hard and blunt object cannot be ruled out.
The Court said that "quite interestingly", the doctor deposed that the injuries could be caused by a hand axe shown by the investigating officer, although no such weapon was seized or produced before the court by the investigating officer.
"When a weapon is shown to the Doctor, as possible of being used to commit the crime, we should assume that it was seized from the scene of occurrence or recovered on the same being pointed out by the accused or otherwise; both of which circumstance is not available in this case", the Court observed in this regard.
The Court also said that the IO does not offer any explanation with regard to the hand-axe shown to the Doctor as deposed by the Doctor.
The Court also raised doubts about the testimony of Dr Kanthaswami, who was examined as an expert witness (PW31). Before the Court, he had ruled out suicide. However, he was confronted with an earlier opinion written by him, in which he had stated that the injuries suggested a case of drowning in the well. According to that opinion, the injuries could have been sustained during the fall into the well or when the body was retrieved from the well. It was also opined that the medical findings make it difficult to definitely categorize the death as accidental, suicidal or homicidal.
When confronted with this document in cross-examination, PW31 admitted its authorship but said that he was fooled and that he made the observation to help a lawyer.
This, the High Court said, was "cutting at the root of his credibility". "We find no reason to place any reliance on his evidence", the Court said.
The trial court had referred to the nail marks seen on the neck of Abhaya's body by a photographer (PW7, Varghese Chacko), which even the Doctor who performed the post-mortem could not detect.
However, the High Court noted that the photographs were not produced as evidence. Ext.P27 series of photogpraphs, taken by PW7, were of the convent and not of the body.
In this regard, the High Court observed :
"PW7 hence had not produced any photographs of the body and it was his unsubstantiated deposition that was relied on in contrast to the testimony of the Doctor based on the post-mortem report. The trial judge for the said purpose found the perception of a photographer to be more precise than that of a pathologist; which we cannot countenance".
Other circumstances mentioned by the High Court :
"As far as the solitary presence of A3 in the Cellar, it is deposed by PW11 that, one Sister Helen who was the roommate of A3, was not available for 4 to 5 days. It cannot for a moment be assumed that A3 chose the Cellar room to carry on her amorous jaunts since she had a regular room-mate staying there, who was temporarily absent", the High Court said.
"The so called disturbances found in the kitchen by PW11(Achamma), being the abandoned slippers and veil of the deceased, do not incriminate anyone, especially when the deceased was missing and later found dead in the well", the Court said.
The Court ordered that the petitioners shall be released on bail on the execution of a bond for Rs.5,00,000/- (Rupees five lakhs only) each with two solvent sureties, each for the like amount to the satisfaction of the trial court. For the first six months after release, the petitioners shall report before the S.H.O concerned every Saturday at 11 a.m. and thereafter on every Second Saturday. They shall not leave the State without the permission of the Court, the order stated further.
Senior Advocates P Vijaya Bhanu and B Raman Pillai appeared for Sephy and Kottoor respectively along with Advocates Thomas J Anakkallunkal, Sojan Micheal, Chacko Simon and Maria Paul. Additional Solicitor General of India P Sooryakaran Reddy appeared for the CBI.
Also Read: Sister Abhaya Case : 17 Circumstances Which Led CBI Court To Convict Father Thomas Kottoor & Sister Sephy
Case Title: Sister Sephy v CBI
Citation: 2022 LiveLaw (Ker) 297
Click Here To Read/Download The Order