Sister Abhaya Murder Case : Kerala High Court Raises Prima Facie Doubts At Witness Statements While Suspending Convicts' Sentence

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's (PW3) testimony seems improbableAdakka 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.On extra-judicial confession made by Kottoor to PW6Prosecution 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.On doctors' statements regarding Sister SephyTwo 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".On the evidence of doctor regarding ante-mortem injuriesThe 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...

Sister Abhaya Murder Case : Kerala High Court Raises Prima Facie Doubts At Witness Statements While Suspending Convicts' Sentence

Hannah M Varghese

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