[Sister Abhaya murder case] Prosecution prima facie failed to effectively counter defense evidence: Kerala High Court

The Kerala High Court on Thursday made some pertinent observations against the prosecution in the Sister Abhaya murder case [Fr. Thomas Kottoor v Central Bureau of Investigation].A division bench of Justices K Vinod Chandran and C Jayachandran opined that the prosecution had failed to effectively counter the defense evidence in the plea by convicts Father Thomas Kottoor and Sister Sephy seeking interim bail.The Court, therefore, passed an order suspending the sentence of life imprisonment of convicts Father Thomas Kottoor and Sister Sephy until their appeals are heard.The Court also released them on interim bail."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 order stated..At the outset, the Court acknowledged the amount of public outrage and media frenzy the case caused over a period of 28 years from 1992, when Sister Abhaya was found murdered, to 2020 when the CBI court convicted Father Kottoor and Sister Sephy. "The instant case evoked a lot of public outrage and the initial inference of suicide and repeated requests made by the investigating agencies to close the case as untraceable, created a frenzy which put officers, men and institutions on the dock; often in the extended media trial", the Court observed..However, it was firm in its resolution that no amount of pressure from the church, the media, or the public would deter it from considering the evidence led by the prosecution as to the culpability of the two accused who stood trial. "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..In December 2020, a CBI Court convicted Father Kottoor and Sister Sephy for offences punishable under Sections 302 (murder), 201 (causing disappearance of evidence of offence), read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC). Father Kottoor was also convicted under Section 499 (defamation) IPC.They were both sentenced to imprisonment for life and were also directed to pay a fine of ₹5 lakh each.Suitable default sentences were also imposed. In January 2021, both of the accused filed appeals before the Kerala High Court challenging their conviction and sentence. They later moved applications for suspension of sentence till the hearing of the appeal, which were allowed by the High Court earlier today..The prosecution allegation was that Father Kottoor and Sister Sephy were in the middle of a sexual encounter when Sister Abhaya walked in on them causing them to throw an axe at her and then drop her body in a well in the convent. .The CBI judge had listed a catena of circumstances which it opined is "so complete that it cumulatively points towards the guilt of the accused".The High Court, while considering the applications moved by the accused, went through some of the circumstances to draw some prima facie conclusions which are summarised below:.- On the abnormal disturbances in the kitchen, work and wash area found on the morning after the death of Abhaya; solitary presence of Sister Sephy in the cellar of the convent on the same night;A maid working at the convent said that on the morning after the death, she saw some lights on, the door unlocked and two slippers and headgear of a nun. Sister Sephy told her that the items belonged to Sister Abhaya. However, the Court opined that these do not incriminate anyone. The witness had also said that she had gone with Sister Abhaya to a Bible Convention on the previous day. This, the Court opined, certainly does not lead to any inference of the deceased having nurtured any suicidal thoughts nor does it warrant an inference of murder by itself..- Regarding presence of Father Kottoor as deposed by Prosecution Witness 3 (PW3), Adakka Raju Raju is an admitted petty thief. He said that when he entered the convent on the fateful night to steal some items, he saw two persons coming to the staircase with torches, one of whom was identified as Father Kottoor.The Court noticed contradictions in the statements made by Raju. That, combined with the fact that Raju identified Father Kottoor in Court 15 years after the incident, lead the High Court to opine that his evidence is weak. .- The admission of Father Kottoor to PW6 about an illicit relationship with Sister Sephy PW6 claimed to be a social worker who had contacted Father Kottoor after the incident. He deposed that when he met the priest, he was anguished and had emotionally admitted that he was had lived at one point with Sister Sephy as husband and wife."This is styled as an extra-judicial confession; quite strange since the crime alleged is of murder and not lewd immorality.... We cannot but notice that A1 (Father Kottoor) 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 observed about this circumstance..-On the admission of Sister Sephy to two doctors about her amorous relationship; subsequent attempt to cover up loss of virginity with hymenoplastySister Sephy had voluntarily agreed to a medical examination, admitted that she had previously had sex with a relative, and was subjected to per vaginal examination two times. However,the Court found that the two doctor's findings were contradictory.It further opined that even if there was evidence of sexual activity in breach of her vows of chastity, the same does not establish the relationship with Father Kottoor or any involvement in the crime..- On medical evidence and cause of deathThe Court said that there is no need to delve deep into medical evidence at this stage but made some observations for the sake of completeness.The conclusion in the post mortem report is that of death by drowning.After a roving examination, a doctor deposed that the possibility of some injuries being caused by assault with a hard blunt object could not be ruled out. He later said the Investigating Officer had produced a kaikodali (and axe), which he said could have caused the injuries. But the Court noted no hand axe was seized by the Police or produced before Court.Another witness opined that the postmortem appearances are quite consistent with drowning. But he later said that he had made the observation only to help a lawyer.The Court, therefore, found no reason to rely on his evidence..The Court did not dwell on the circumstance of lack of explanation or the bizarre ones, of suicide given by the accused "since that can only form a link in the chain of circumstances and cannot solely lead to a conviction"..The Court also reminded itself it is only on a prima facie consideration of whether the accused, from the evidence led, can be found to have committed the crime, beyond all reasonable doubt.Ultimately it found that the accused must be released as an interim measure until their appeals against conviction and sentence can be disposed off. .[Read Order]