Criminal Revision Petitions Nos. 398/2018; 395/2018; 627/2018 (Sister Abhaya Case) v Central Bureau of Investigation and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.Rev.Pet.No. 398 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRL.M.P.NO.11/2011 IN IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM DATED 07-03-2018** ## **REVISION PETITIONER/ACCUSED NO.1:** **REV.DR.THOMAS KOTTOOR, AGED 70 YRS, S/O. K.T MATHEW (LATE), KOTTOOR BHAVAN,KIDANGOOR, KOTTAYAM.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.CHACKO SIMON SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT** ## **RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESTIGATION ACB, COCHIN, REPRESENTED BY THE STANDING COUNCIL OF CBI, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **SRI.SASTHAMANGALAM S.AJITHKUMAR SPL.PP FOR C.B.I** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH Crl.Rev.Pet.395/2018, Crl.Rev.Pet.627/2018, THE COURT ON 9/4/2019 PASSED THE FOLLOWING:** Crl.R.P.No.398/2018 & others 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941 Crl.Rev.Pet.No. 395 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRMP 14/2011 IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM** ## **REVISION PETITIONER/ACCUSED NO.3:** **SR. SEPHY, ST.JOSEH GENERALATE, S.H.MOUNT, KOTTAYAM, KERALA, (KANGARATHUMOOTHY HOUSE, KURUMULLOOR, KOTTAYAM).** **BY ADVS. ADV.SIDDHARATH AGGARWAL(SR) SRI.SOJAN MICHEAL SRI.A.VELAPPAN NAIR SRI.GEORGIE JOHNY SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S.** ## **RESPONDENT/COMPLAINANT:** **CBI, ACB, COCHIN REPRESENTED BY ITS STANDING COUNSEL, CBI, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31.** **SRI.SASTHAMANGALAM S.AJITHKUMAR SPL.PP FOR C.B.I** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH Crl.Rev.Pet.627/2018, Crl.Rev.Pet.398/2018, THE COURT ON 9/4/2019 PASSED THE FOLLOWING:** Crl.R.P.No.398/2018 & others 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941** **Crl.Rev.Pet.No. 627 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRL.M.P.NO.12/2011 IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM** ## **REVISION PETITIONER/WITNESS NO. 108:** ## **JOMON PUTHENPURACKAL** **S/O. LATE KURIAKOSE, AGED 50 YEARS, CONVENOR, SISTER ABHAYA CASE ACTION COUNCIL, PUTHENPURACKAL HOUSE, NEENDOOR P.O., KOTTAYAM-686601.** **BY ADV. SRI. JOMON PUTHENPURACKAL (PARTY IN PERSON)** ## **RESPONDENT/2ND ACUSED/COMPLAINANT AND STATE:** - **1 FR. JOSE POOTHRIKKAYIL S/O. SRI. KORAH, PRINCIPAL, ST. PIUS XTH COLLEGE, RAJAPURAM, KASARGOD DISTRICT-671532.** - **2 CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR, PLOT NO.5-B, 6TH FLOOR, CGO COMPLEX, LODHI ROAD, NEW DELHI-110003.** **3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031.** **BY ADVS. SRI.CHACKO SIMON SRI.JEN JAISON SRI.J.JOSE SRI.SHAJI THOMAS** - **SRI.SASTHAMANGALAM S.AJITHKUMAR SPL.PP FOR C.B.I PUBLIC PROSECUTOR SMT.SREEJA V.** Crl.R.P.No.398/2018 & others 4 **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.09.2019, ALONG WITH Crl.Rev.Pet.395/2018, Crl.Rev.Pet.398/2018, THE COURT ON 9/4/2019 PASSED THE FOLLOWING:** Crl.R.P.No.398/2018 & others 5 ## **O R D E R** ## **[ Crl.Rev.Pet 398/2018,Crl.Rev.Pet.395/2018, Crl.Rev.Pet.627/2018 ]** These revisions arise from SC No.1114/2011 of the court of the Special Judge (SPE/CBI}, Thiruvananthapuram, for offences punishable under sections 302,201,449 IPC read with section 34 IPC. 2. The brief facts of the case is as follows: On 27/3/1992 morning, sister Abhaya, a nun, aged 21 years, who was an inmate of Pius Xth Convent hostel, Kottayam, was found dead and her body was recovered from a well situated on the rear side of the convent, where she was staying with other nuns and students. In the ground floor room near the kitchen, her chappals were found. Her head veil was found tucked in between the outer door. 3. FIS was laid by the then Mother superior of the convent. Crime was registered as Crime No. 187/1992 of Kottayam West Police Station on 27/3/1992. Thereafter, investigation was taken over by the Crime Branch, CBCID. After investigation, report was filed before the SDM, Kottayam treating it as a case of suicide. In the meanwhile, the matter was entrusted with CBI for investigation. CBI took over the investigation on 29/3/1993 and conducted the investigation. On the basis of the materials gathered, they filed Crl.R.P.No.398/2018 & others 6 a final report on 05/12/1996 . It reported that it could not confirm whether death was suicidal or homicidal. Hence, it was requested that the case may be closed as untraced one. The CJM, before whom the report was filed, refused to accept the final report and directed the CBI to conduct further investigation.After further investigation, 2[nd] final report was laid on 12/7/1999. CBI took up the stand that it was a case of homicidal death, but identity of accused could not be established. The Chief Judicial Magistrate, by his order dated 23/6/2000 rejected the report as unsatisfactory and directed the CBI to conduct further investigation. In the light of above, investigation was transferred from CBI at New Delhi to CBI, Cochin Branch. Yet another report was filed after investigation on 25/8/2005, reiterating the request to close the case as untraced one. This was also rejected by the Chief Judicial Magistrate by order dated 21/8/2006. 4 **.** Thereafter, investigation was entrusted with Sri.Nandakumar Nair, Dy.SP., CBI, Kochi unit. who conducted investigation and laid a final report on 17/7/2009 arraying three persons as accused. First accused is Fr. Thomas Kottoor, who was the lecturer of Psychology at BCM College, Kottayam, second accused was Fr. Jose Poothrikkayil, who was lecturer in the same college and also the manager of a Catholic Mission Press. The third accused was Sr. Sephy, who was a nun residing at St.Pius Xth Convent Hostel. It was Crl.R.P.No.398/2018 & others 7 alleged by the prosecution that, the first and the second accused priests maintained an unholy relationship with the third accused . On 26/3/1992, during night, the first and the second accused committed house trespass into the Pius Xth convent hostel by scaling the boundary wall. They entered the kitchen room with the help of the third accused and spent their night in her room, which was in the ground floor of the Pius convent hostel. On 27/3/1992 at about 4.15 a.m., sister Abhaya who had woken up by that time for her studies, came down to the ground floor from her room to fetch water from the kitchen. According to the prosecution, Sister Abhaya saw the accused. To silence her, the accused allegedly hit on the back of the head of the sister Abhaya with a small axe kept in the kitchen. She fell unconscious. It was alleged that, the first and the second accused in their attempt to dispose of her body, to screen the accused and to cause disappearance of evidence, climbed the emergency stair case on the rear side leading to terrace. Since it was found to be inconvenient, body was lifted and was thrown into the well situated on the rear side of the convent. It was alleged that, hence all the accused were guilty of offences. V.V.Augustine, the initial investigating officer was also arrayed as an accused. But since he had died on 25/11/2008, he was not charge sheeted. Crl.R.P.No.398/2018 & others 8 5. In the final report, CBI relied on 133 witnesses and 70 documents. In the course of investigation, polygraph, brain mapping and narco analysis tests were conducted on the accused 1 to 3 and also on few witnesses and suspects. Accused 1 to 3 were arrested on 19/11/2008. They were later released on bail. 6. Pending the proceedings, Crl.M.P.No. 11/2011 was filed by the first accused seeking discharge under section 227 of Cr.P.C. Crl.M.P.12/2011was filed by the second accused and Crl.M.P.14/2011 was filed by the third accused seeking the same relief. Learned Special Judge, by a common order dated 22/1/2018 held that the second accused was liable for discharge and allowed Crl.M.P.12/2011. The court directed that accused Nos. 1 and 3 shall face trial and Crl.M.P.Nos.11/2011 and 14/2011 were dismissed. 7. Contending that the above order in Crl.M.P.No.11/2011, to the extent of refusing to discharge accused No.1 is illegal, Crl.R.P.No. 398/2018 has been preferred by the first accused. The third accused challenged the order in Crl.M.P.No.14/2011 by filing Crl.R.P.No. 395/2018. The order discharging the second accused was challenged by Jomon Puthenpurackal, who was involved in the agitation for proper investigation of the crime, by filing Crl.R.P.No.398/2018 & others 9 Crl.R.P.No. 627/2018. 8. Heard Sri.B.Raman Pillai, learned senior counsel for the first accused, Sri.J.Jose learned counsel for the second accused Sri.Siddarath Agarawal learned senior counsel for the third respondent, Sri.Sasthamangalam.S.AjithKumar, learned standing counsel for the CBI, and Sri.Jomon Puthenpurackal who appeared in person. 9. Since the case has a chequered history, was investigated by several agencies, complicated factual issues are involved, there were serious allegations of destruction of evidence and material objects and there were several rounds of recording of evidence, the facts involved are discussed in detail. 10. Both the Learned senior counsel for the first and the third accused contended that the Special Judge went wrong in exceeding the scope of enquiry contemplated under section 227 of Cr.P.C. and by a meticulous analysis of facts, pre judged all issues. It was contended that the crucial fact that all the investigating agencies, except investigating officer of the CBI who laid the final chargesheet, had conducted extensive investigation for a long period, did not find any material to implicate accused 1 to 3 in the crime was not appreciated by the court below. It was also contended that Sri. Nandakumar Crl.R.P.No.398/2018 & others 10 Nair took over the investigation towards the fag end of investigation and immediately thereafter arrested accused 1 to 3. On the basis of the some materials gathered, the above investigating officer jumped into the conclusion that there were materials against accused 1 to 3 and thereafter laid charge against them, it was contended. It was contended that there was no material evidence to proceed against the petitioners. It was further contended by both counsel that, all the earlier statements given by the crucial witnesses were contradictory to the conclusion arrived at by the CBI in its final report. Artificial evidence was let in and facts were distorted by the CBI, to prejudice the mind of the court. 11. It was contended by Sri.Jomon Puthenpurackal that there were sufficient materials to proceed against the second accused. The court below proceeded to discharge the second accused on wrong assumption of facts. It was also vehemently contended that there were sufficient materials on record to show that accused 1 to 3 had entered into a criminal conspiracy to eliminate sister Abhaya. There were materials against second accused also, establishing that he had criminally trespassed into the compound, that he along with other co-accused had participated in the crime and conspired to destroy the material evidence to screen the accused. 11 Crl.R.P.No.398/2018 & others Hence, the court below was not justified in discharging the second accused on the various grounds, it was argued. It was also contended that though CBI had chargesheeted the second respondent also, they had not chosen to challenge the order of discharge. 12. Supporting the prosecution, learned special prosecutor for CBI, Sri.Sasthamangalam S.Ajithkumar contended that investigation agency arrived at a conclusion, after the lengthy of investigation, available evidences were gathered meticulously and each material gathered by the investigating agency pointed to each circumstances relating to the commission of crime and involvement of accused 1 to 3 in the offences alleged against them. 13. Before appreciating the materials to conclude whether there were sufficient materials to proceed against accused 1 t 3 under section 227 of Cr.P.C., certain salient and essential facts are to be considered for proper appreciation of the materials on record. 14. Initially, investigation was conducted by the local police. Within a couple of days, the Crime Branch took over the investigation. The investigating officer K.Samuel, who had conducted the investigation under the supervision of K.T.Michael, the then Crime Branch Superintendent of Police, Crl.R.P.No.398/2018 & others 12 had concluded that death was not homicidal one, but was a case of suicide. After the case was referred for investigation to the CBI, it conducted investigation through different investigating officers and had successively filed three closure reports. In all the reports, conclusion was that it was a case of homicide, though sufficient materials to identify the accused could not be unearthed. Each time, while considering the respective closure report, three different Chief Judicial Magistrates disagreed with the ultimate conclusion of the CBI and directed the CBI to conduct further investigation with respect to the specific aspects pointed out by respective CJM. Clearly, all the CJMs did not agree with the ultimate conclusion that the accused could not be identified. CBI was consistent through out that it was a case of homicide. It is pertinent to note that after Dy.S.P. Nandakumar Nair took over the investigation, he questioned some of the earlier witnesses, their statements were got recorded under section 164 Cr.P.C.and thereafter, accused 1 to 3 were arrested. The most crucial fact is that, the above investigating officer, relied exclusively on the same set of witnesses relied on by the earlier teams of investigation. No new witness was brought by him to conclude that accused 1 to 3 are involved in the crime. Records also show that two among the witnesses, 13 Crl.R.P.No.398/2018 & others Adakka Raju and Sanju P.Mathew, were kept under the cloud of suspicion initially by the investigating agencies. Adakka Raju, who was apprehended at the initial stage of investigation by the Crime Branch, had alleged that he was pressurized by the Crime Branch to own the guilt. He even stated that he was offered consideration for accepting the guilt. Both the above witnesses are now projected as crucial witness by the investigating agency. 15.Records show that, the CBI, in the course of investigation, had arrived at a clear conclusion that there were destruction of material objects and records, that investigation was not conducted properly and records were manipulated. There are materials on record to show that at the scene of occurrence several activities had taken place at or about the time of the incident. The lights in the corridor, which were switched off during the previous night, had been switched on. Doors to the kitchen and the work area which were locked were opened. Door to outside, which was latched from inside, was found opened and latched from outside. White head veil of sister Abaya was found tucked in between the door. One chappal was found near the fridge and another one was lying near the door. Plastic bottles were found near the fridge with water oozing from it. An axe was found lying on Crl.R.P.No.398/2018 & others 14 the floor and a fruit basket was lying near the door. Both were found displaced from its original places. The bucket used for drawing the water from the well which was kept on the side of well on the previous night was found drawn up to the pully. 16. The first police officer, who had reached the spot, was V.V.Augustine, who was in charge of station on the date of the incident. He had noticed that scene of occurrence was substantially interfered with, before his arrival. Doors were opened and closed repeatedly, several persons had passed through the scene of occurrence and the items which were originally displaced were restored to its original position or inter meddled with. 17. CBI had also found that sister Abhaya had two injuries on her head. One was behind right ear and blood was oozing from the wound, even when the body was retrieved from the well. Strangely, both the injuries were not referred to in the inquest report. It is also on record that injuries were also noted on either side of the nose, neck and shoulder. A photographer had taken few photographs and had handed over the photographs to the police. However, some of the photographs handed over to the investigating agency are missing now. Some materials are available on record to show that when body of sister Abhaya was taken from the water, it Crl.R.P.No.398/2018 & others 15 was noticed that she was not wearing undergarments. However, the seizure mahazar, refers to the recovery of brazier and panties from the body. Those items were produced before the SDM court as material objects. It has also come on record that on the evening of the date of the incident, fresh inquest report was prepared by V.V.Augustine at the police station and the signatures of the witnesses were manipulated. 18.According to CBI, manipulations regarding the material objects and the injuries in the inquest report were done by V.V.Augustine. According to CBI, Augustine had admitted that he did not incorporate the actual scenario in the inquest report to satisfy K.T.Michael, who was the Superintendent of Police of Crime Branch at that time. The CFSL report and the report of experts Mr. N.K.Agarawal and Dr. Ali indicates that signatures on the inquest report were manipulated. However, according to CBI, it is difficult to establish that now, since V.V.Augustine was found dead under mysterious circumstances on 25/11/2011. Eight material objects were seized at the time of inquest. One personal diary of sister Abhaya was seized later. All the above material objects produced before the SDM were allegedly destroyed in the SDM office or elsewhere and are not available now. 19. It is also seen that final report was filed by the CBI Crl.R.P.No.398/2018 & others 16 after considerable lapse of time. In the meanwhile, several rounds of investigation and interrogation have taken place. Several vital materials were gathered. Evidently, CBI is now attempting to establish the case with these constraints imposed on the prosecution. 20. Both the senior counsel for the first and the third accused relied on several decisions to bring home the scope of interference in an order of the trial court framing charge. They also referred to various decisions regarding the quality of materials required for framing charge and the scope of interference by the High Court. 21. Learned Senior Counsel Mr. Sidharth Agarwal relied on the decision in **L.K.Advani v. Central Bureau of Investigation(1997(41) DRJ)** , in which a Single Judge of the Delhi High Court had held that, charges can be framed against the accused only if the court comes to the conclusion that prosecution has shown a prima facie case against the accused and there is evidence before the court, which were capable of being converted into legal evidence later on during the subsequent proceedings, after the framing of charges. It was held that if the evidence before the court was of such type, which if un-rebutted and un-challenged by way of cross examination, would not be sufficient enough to convict the Crl.R.P.No.398/2018 & others 17 accused ultimately, then the court would not be justified in framing the charge against the accused. The judge at that preliminary stage is simply required to find out that there was material which may lead to the inference that the accused has committed an offence. ## 22. In **Suresh Budharmal Kalani Alias Pappu Kalani** **v. State of Maharashtra (1998) 7 SCC 337)** , the Apex Court held that at the stage of framing charge, the court is required to confine its attention only to those materials collected during investigation, which can be legally translated into evidence and not upon further evidence(dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. ## 23. In **Satish Mehra v. State (NCT of Delhi) and another((2012) 13 Supreme Court Cases 614)** , Supreme Court held that conducting of criminal trial cannot be allowed to assume the character of a fishing and roving enquiry. It would not be permissible in law to permit a prosecution to limp and continue, on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has Crl.R.P.No.398/2018 & others 18 been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, established the commission of an offence by the accused, which fact has to be proved by leading unimpeachable and acceptable evidence. 24. In **Vinay Tyagi v. Irshad Ali Allias Deepak and Others (2013) 5 Supreme court Cases 762)** , the Supreme Court held that the term “presuming” must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the accused has committed an offence. Such opinion has to be formed on the basis of the record of the case and the documents submitted there under. 25. In **State of U.P.v. Dr.Sanjay Singh and Another(1994 Supp(2) Supreme Court Cases 707)** , Supreme Court held that , at the highest, the prosecution can only suggest from the circumstances what is or may be the motive for any particular act. However, motive is not a sine qua non for bringing the offence of murder or of any crime home to the accused. 26. Supplementing the above contentions, learned senior counsel Sri.Raman Pillai further relied on the decision in **Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (MANU/SC/7528/2008),** to reiterate the proposition that to Crl.R.P.No.398/2018 & others 19 substantiate the ingredients of framing charge, legally admissible evidence should be available which can be translated into legally admissible evidence and in the absence of it, accused is liable for discharge. 27. The learned senior counsel relied on the following decisions to support his contentions: **Century Spinning And Manufacturing Co.Ltd. and Others v. State of Maharashtra (1972 Supreme Court Cases (Crl.) 495), Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others (1990 KHC 882), Union of India (UOI) v. Prafulla Kumar Samal and Anr(MANU SC)?0414/1978), State of Karnataka v. Muniswamy and Others(1977 Supreme Court Cases (Crl.) 404), Bakhshish Singh v. State of Punjab (1971 Supreme Court Cases (Crl.) 251), Palvinder Kaur v. State of Punjab ( MANU/SC/0038/1952), Sahadevan & Anr. v. State of Tamil Nadu ( AIR 2012 Supreme Court 2435), Om Prakash v. State of U.P.(MANU/SC/0205/1959) .** The crux of the above decisions is that at the stage of framing charge the court is only required to evaluate the materials and documents on record, with a view to find out, if the facts emerging therefrom, taken at their face value, disclose the existence of all ingredients constituting the alleged offence. Crl.R.P.No.398/2018 & others 20 28. According to the court below, to establish the charge against the first accused, prosecution essentially relied on the statements of Sanju P.Mathew, CW4, Adakka Raju - CW5, Kolarcode Venugopalan Nair- CW7, Saino - CW11 and the reports of narco analysis test, polygraph and brain mapping test. 29. CW4 was residing in a house adjacent to the convent and the family of CW4 was very close to the inmates of the convent. It has also come on record that for every necessity, nuns of the convent used to seek the assistance of the father of CW4. In his statement under section 164 Cr.P.C. he had stated that, he had heard that accused 1 and 3 had some relationship which, according to him, was an unholy relationship. He had also stated that he had heard that accused No.3 used to roam around Kottayam. Accused No. 1 was known as a flirt and used to give lift to nuns. On 26/3/1992, he had sat late into night to prepare for his examination. At 11.30 p.m, he went to the nearby tea shop to have tea. While returning, at about 11.45 p.m, he saw the scooter of the first accused parked near the convent. He asserted that he had seen the scooter of the first accused parked there on earlier occasions also. He thought that there must have been some feast in the convent and the first accused must have come to attend it. Thereafter, Crl.R.P.No.398/2018 & others 21 he went to bed and slept. Next day morning, the scooter was not there. That day, sisters came to his house and informed that sister Abhaya was missing and sought help of the father of CW4. It was later revealed that sister Abhaya had died. 30. CW5 was also examined under section 164 Cr.P.C. Admittedly, he is a petty thief, who had earlier got involved in some crimes. He stated that one night he had gone to the convent with intention to steal copper plates, connected to the thunder arrest installed on the terrace. On an earlier occasion also, he had stolen copper plate from the convent terrace. He sat on a cocoa tree, to scale down the wall. At that time, he saw two persons climbing the staircase on the rear side. He could see the face of one person. He stated that two weeks after the death of sister Abhaya, he was arrested by the Crime Branch. They had forced him to own the murder, promising money. He stated that he was illegally detained in custody by the crime branch for 60 days. He clarified that, he had seen the two persons in the convent, two weeks prior to the date of his arrest. He has stated that he had identified that one among them was the first accused. 31. CW7 claimed to be a public spirited person who had taken up several public issues. In his section 164 Cr.P.C.statetment,he stated that, he had read an article Crl.R.P.No.398/2018 & others 22 relating to narco analysis test written by a criminologist. Since he was interested in the subject, he pursued the matter, which got him acquainted to the first accused. In the course of discussion with the first accused, first accused revealed that he was also interested in the issue regarding to narco analysis test used by the police in criminal cases. First accused persuaded CW7 to challenge the legality of narco analysis test by filing a public interest litigation. He promised that he was ready to spent any amount for challenging that test. In the course of the discussion, the first accused is stated to have revealed that he had committed a wrong and he had all the weaknesses of an ordinary human being. He confessed that he had illicit relationship with the third accused. He also revealed that something that ought not have happened, had happened. 32. CW11 who was maid servant in the convent from 1992 January onwards. She stated that first and second accused had visited the convent on several occasions. She stated that she had seen the third accused entertaining the second accused and she was found cheerful in the company of the second accused. 33. Court below, relying on the above materials held that, if they remain un-rebutted, it was sufficient to fix the Crl.R.P.No.398/2018 & others 23 liability on the first accused and the case against the first accused can be proved. The court held that those materials prima facie are sufficient to frame charge against the first accused. 34. Assailing the above conclusion, the learned senior counsel for the first accused contended that, none of the above witnesses has not stated earlier anything about the first accused to the Crime Branch. The learned senior counsel referred extensively to the 8 statements given by CW4 to different police officers and contended that he initially did not even had stated that he had gone to the tea shop. There was a gradual improvement of his version. All the above witnesses relied on by the prosecution had given statements to the earlier officers which did not contain any allegation against the accused. It was stated that, version given to the CBI contradicted with the earlier statements. Counsel elaborately referred to the various statements given by the witness in relation to the incident. 35. It was also contended that Adakku Raju was basically a thief, who cannot be relied on for the purpose of establishing the matter, since his version can only be inherently tainted. The learned senior counsel submitted that the court below failed to discharge its bounden duty to sift Crl.R.P.No.398/2018 & others 24 and weigh the evidence, at least for the limited purpose of finding out whether or not a prima facie case against accused has been made out, as held in Union of India v. Prafulla Kumar Samuel's case (supra) . Even without going into the realm of appreciation of evidence, it could be seen that version of CW4 was inherently improbable and contradictory. However, it is pertinent to note that the incident happened during night. Normally such acts are likely to be seen only by those persons who have reason to move around during night. The above witness was questioned even by the first agency and his version that he had committed theft earlier, is supported by evidence of other witnesses that copper plate was stolen from the convent on an earlier occasion. His version cannot be rejected unless it is found to be inherently unbelievable. Having considered this, I am not inclined to totally discard the evidence of Adakka Raju on the only ground that he is a thief. Versions of all the above witnesses indicate that there are sufficient materials to proceed against the first accused. 36. Regarding the complicity of the second accused, prosecution relies on the version of CW5,CW6- Chellamma Das, Saino - CW11 and Professor Thressiamma CW12 and the various scientific tests conducted. CW5 had stated that he Crl.R.P.No.398/2018 & others 25 had seen two persons climbing up the staircase. He identified one among the two persons as the first accused. He did not mention about the identify of the other person. Hence, that version cannot be used against the second accused. 37. Another witness relied on by the prosecution is one Chelamma Das, who was examined as CW5 under section 164 Cr.P.C. He was the watchman of a nearby building. According to him, on two earlier nights, he had seen one person scaling the wall of the convent, after parking his scooter outside. He could not be identified. Thereafter, on a third occasion, he had seen one person climbing the wall after parking his scooter outside. After accused 1 to 3 were arrested, he understood that it was the second accused whom he had seen on the previous occasion scaling the compound wall. CW6 has specifically referred to the three instances of scaling of the boundary wall, by a person. A close perusal of the version of the above witness indicates that even according to him, second accused was seen scaling the compound wall, about a week prior to the date of death of sister Abaya. The court below, relying on this version held that it completely ruled out the prosecution case and hence the version as spoken by him cannot be used to implicate 2[nd] accused in the present crime. Crl.R.P.No.398/2018 & others 26 38. Professor Thressiamma, who was the professor of BCM college where the first and the second accused were working, in her statement under section 164 Cr.P.C. as CW 12, had stated that on hearing about the death of sister Abhaya, she went to the convent and found body lying near the well. Second accused was there. According to her, second accused did not exhibit any emotion and was moving around giving directions to the employees. It was stated by this witness that, after the death of Abhaya, the first and the second accused started keeping aloof from their colleagues. It was noticed that, the first accused maintained a grim face and was not at all pleasant. According to this witness, she had noticed that whenever the subject relating to the death of sister Abhaya came for discussion. The above accused he used to leave the company and seemed to be not interested in the subject. The above materials revolve around the conduct of the 2[nd] accused subsequent to the incident and the close relationship of second and third accused. 39.Relying on the entire materials, Sri.Jomon Puthen Purackal contended that the court below went wrong in discharging the second accused. It was pointed out that court below failed to evaluate other materials which pointed to the complicity of the second accused in the crime. It was also Crl.R.P.No.398/2018 & others 27 contended that CBI, which had charge sheeted the second accused did not challenge the order discharging the second accused. 40. The only evidence, which may have a direct bearing on the second accused is the version of Chellamma Das, that the second accused was seen scaling the boundary wall during night and his presence inside the compound of the convent. Though his version to that extent is categoric and the identity of the second accused is specifically referred to, the court below had correctly taken note that, the incident in which he saw the second accused inside the compound, happened few days prior to the death of sister Abhaya. Hence, version of Chellamma Das, even if believed completely, cannot be used to connect the second accused with the crime. Consequently, it was correctly held by the court below that there is nothing to show the presence of the second accused in the convent on the date of the incident. Even if the entire materials placed by the prosecution as against the second accused is accepted in toto, still it is thoroughly insufficient to hold the second accused guilty. The statement of the other witnesses will not help prosecution to connect him with the incident.To that extent, I am in agreement with the conclusion arrived at by the court below regarding the second accused. That finding Crl.R.P.No.398/2018 & others 28 does not call for any interference. 41. To substantiate the complicity of the third accused, prosecution relied on the oral evidence of sister Lisieux-CW1, Venugopalan Nair-CW7, Saino-CW11. Nisha Rani - CW21, Sheeja Kumar - CW24, Achamma-CW32, Reji- CW33, Thresiamma- CW34, Sherly-CW39, Sudeepa - CW40, Preetha - CW70 and Mini- CW79. 42. The learned senior counsel Mr.Siddartha Aggrawal for the third accused seriously assailed the above versions . It was contended that, prosecution had tried to make out that the third accused had purposefully selected a cellar room to facilitate her illicit activities. It was contended that, CBI thereby intended to attribute that she chose an inconvenient cellar room to facilitate the illicit relationship with the first and second accused. The argument of the learned senior counsel was that it was a calculated attempt to prejudice the trial and to create an impression that accused was a person of bad virtues, that she had illicit relationship with co-accused, and that to facilitate it, she had voluntarily chosen an inconvenient room in the cellar. It was contended that each of the above allegation was factually incorrect. 43. It was contended that convent does not have cellar room and that the room was also not chosen by the 3[rd] 29 Crl.R.P.No.398/2018 & others accused. Infact, it was the ground floor of the multi storied building and directly opened to the rear side, which was on the ground level. The dining room, kitchen and the room occupied by the third accused were in that floor. It is true that the nomenclature of it as a cellar room appears to be a misnomer. It is true that all other residents of the convent except third accused and Sister Helen resided in the upper stories of the convent. It was also contended that, though prosecution has alleged that third accused was living alone in that room, infact, it has come on record that she was not alone in that room. Sr. Helen, who was in charge of the mess shared the room along with the third accused. It was stated by Sr.Helan that she has been residing in that room along with the third accused for the past one and half years. She asserted that, room was allotted to them without asking. They were earlier occupying rooms on the first floor. To accommodate a Phd. student, sister Helen and third accused who were occupying the upper floor rooms, were shifted to the present room on the ground floor. Evidently, shifting was not by their choice and the room was allotted by the mother superior. It was stated by sister Helen that, whenever either of them left the convent, the other used to be alone in that room. Further, the version of witnesses shows that as a rule, from 30 Crl.R.P.No.398/2018 & others 10.30 p.m. till 5a.m. on the next day, the entire ground floor was inaccessible to the occupiers of the upper floors. Whether the room of the third accused was called as a ground floor or cellar room or whether the room was jointly occupied by third accused, the crucial fact is that on the fateful night, third accused was alone in that floor. 44. Several witnesses were relied on by the prosecution in an attempt to establish that sister Sephy was of loose character. CW21 Nisha Rani, who was an inmate of the convent, had stated that the third accused was an employee of the printing press of the convent. According to her, third accused was a jovial character. Her version was that the third accused was living alone in that room and she had often wondered as to why sister Sephy was living in the ground floor alone. Her opinion about sister Sephy was that she cannot be said to be a woman of good conduct. She also added that the stay of the third accused alone in the ground floor was a matter of discussion among other inmates. She also stated that in the morning after sister Abhaya was found missing, some students had gone to the third accused and enquired about sister Abhaya. She got angry and asked them to mind their own business. CW21 further stated that after the incident, third accused did not interact with others, that she Crl.R.P.No.398/2018 & others 31 was found moody and depressed and she remained aloof from others for the next two weeks. Thereafter, she improved. 45.CW21 and CW70 who were intimates of the convent stated that sister Sephy maintained illicit relationship with the priests. According to them, priests used to come to the convent every week and also on special occasions. Sisters in the convent were found to be in cheerful mood in their company. They also asserted that they had seen the sisters sitting with priests and sipping tea. 46. According to the prosecution, in the convent three dogs were caged. Since they were ordinarily let out in the night, learned trial judge observed that strangers could not have entered the compound and committed the crime. On the basis of the materials, learned special judge concluded that the fact that dogs had not barked on that night, indicated that the crime was committed by somebody familiar to the dogs. CW40 Sudeepa, in her statement had stated that, she had heard something heavy falling on that night. However, she did not hear the barking of the dog. It is a fact that in the convent about 20 nuns and 116 girl students were residing. CW1 in her statement had stated that she did not hear the dogs barking during that night. Court below held that, since nobody had heard the barking of the dogs, the assailant was Crl.R.P.No.398/2018 & others 32 familiar to the dogs. 47. This conclusion, as one of the reason for concluding that accused Nos. 1 to 3 were the assailants, was seriously attacked by the learned senior counsel. It is true that nobody had a case that dogs in fact had barked unusually, during that night. It is also not clear whether dogs were infact let out in that night. The above conclusion arrived at by the learned Special Judge principally rests on a presumption that dogs are familiar to accused Nos. 1 and 2, who are outsiders. This also requires some materials to show that dogs were familiar to the accused, However, there is absolutely no evidence to establish it. On the contrary, prosecution is essentially relying on the version of Adakka Raju, a thief, who himself has stated that he had once trespassed into the convent on an earlier occasion, scaled the building and had stolen copper plates from the compound. The stealing of copper plates of lightening arrest is supplemented by the version of CW14. It clearly shows that, Adakka Raju was capable of entering the compound without being noticed by the dogs. He had also given a statement that he had seen two persons moving in the compound. He had not stated that dogs were barking at that time or that he had even seen the dogs there. Even Chellamma Das,whose version is heavily relied on by the 33 Crl.R.P.No.398/2018 & others prosecution to establish that he had seen persons entering the compound on three occasions, had not seen the dogs nor heard it barking. This shows that it may be possible that even without the dogs being noticed, it was possible for anybody to enter the compound. Hence, the conclusion arrived at by the learned special judge that since dogs did not bark during night, assailants were persons known to the dogs and that evidence supports prosecution case that accused Nos. 1 and 2 were assailants, evidently, is a very feeble material to be considered at this stage. 48. Another conclusion arrived at by the learned Special Judge, which was vehemently opposed by the learned senior counsel for accused No.3 was based on the provisions under section 106 of the Indian Evidence Act. It was contended by the learned senior counsel that, the finding of the court below that section 106 of the Indian Evidence Act was applicable to the facts of the case was clearly beyond jurisdiction. The court below proceeded on the fact that the third accused was staying alone in a room with least inconvenience, which in the ordinary circumstances no person would have chosen. As observed earlier, it was not a cellar room. It practically was a ground floor room, with a bath room attached, closer to the dining room, had courtyard on its one side and had access Crl.R.P.No.398/2018 & others 34 towards outside. It has also come on record that room was not chosen by the third accused. Infact, third accused had lived in an up stair room earlier, and to accommodate another student in that room, was vacated by the mother superior and the room was given to the student. In fact that room was not an inconvenient room than the up stair room and had attached toilet and bathroom. However, on the above assumption, learned Special Judge relied on the decisions reported in **State of Kerala v. Sudarsanan and others (2014 3 KHC 110), Desin Bai and Shanti Bai v. State of Chhattisgarh (2015 KHC 4091) and Gajanan Dashrath v. Kharate State of Maharashtra (2016 KHC 6179)** to draw an inference that in this case the aid of Section 106 of the Evidence Act is available to the prosecution. 49. Learned senior counsel for the third accused attacked the finding that section 106 of the Evidence Act was applicable and contended that it has no application to the facts of this case since strictly speaking, there was no special circumstance within the exclusive knowledge of the third accused, so that she could be made answerable invoking section 106 Cr.P.C. From facts, she alone could not have been called upon to be charged for offences and made answerable under section 106 of Evidence Act. Crl.R.P.No.398/2018 & others 35 50. However, there is yet another angle to it, other than section 106 Evidence Act . It has come on record that, third accused was staying in the same room where the incident took place. It has come on record that several activities had taken place at the scene of occurrence during the fateful night. Sister Abhaya had come down through staircase, which was near to the room of the third accused. Lights were switched on, doors opened and murder had taken place. An axe and fruit basket were displaced. Chappals and head gear of sister Abhaya were thrown on the floor. Water bottle had fallen down. Fridge was opened. Door to outside was opened and latched from outside. Sister Abhaya had also fallen into well. Sound of falling was heard by Sister Sudeepa, who was staying on the first floor. In the above circumstances, it is reasonable to believe that the third accused could not have noticed any of these facts. As correctly suggested by the prosecution, this is strong circumstance against the third accused, which the court may have to consider in the trial, though strictly not one calling for an inference under section 106 of the Evidence Act. 51. Yet another point relied on by the learned special judge was regarding the credibility of information gathered against accused through the process of Narco analyst test. Crl.R.P.No.398/2018 & others 36 The court, relying on the decision of the Supreme Court in ## **Selvi and others v. State of Karnataka(2010) 7 Supreme** **Court Cases 263)** held that Narco analyst test had to be conducted with the consent of parties and subject to the guidelines of NHRC. It was held that voluntary undertaking of tests by the subject is permissible, provided certain safeguards recommended by the National Human Rights Commission are followed. In case of Polygraph test certain safeguards were provided, which were extended in case of Narco analysis test by the decision of the Supreme Court in Selvi's case (supra). It was held that even such test results are not admissible in evidence, except that they can be put to use for the limited purpose as indicated under section 27 of the Indian Evidence Act. According to the prosecution, in this case, narco analysis test was conducted before the guidelines were laid. It is on record that before conducting narco analysis test, consent was obtained by the prosecution. Learned Special Judge held that in the above circumstances, the result of narco analysis test cannot be challenged by the accused. Evidently, in the case at hand, the materials gathered in the course of narco analysis test are only for a limited purpose. 52 **.** Learned senior counsel for the third accused Crl.R.P.No.398/2018 & others 37 seriously attacked the version of CW7 which according to the prosecution was an extra judicial confession statement given by the first accused to CW7, inculpating himself and the third accused in the incident. CBI projected it as a strong piece of evidence against accused Nos. 1 and 3, admitting the illicit relationship between them and also about the suppressing of the evidence. It was contended by the learned senior counsel for the third accused that, the above statement attributed to the first accused, does not disclose that they were in the nature of a confessional statement. They do not admit the offence at all or disclose the ingredients of the offences. It was contended that, the above statement does not satisfy the ingredients of a confession as laid down in **Pakala Narayana Swami v. the King Emperor,(AIR 1939 PC 47).** It was further contended that even if the whole or any part of it is admissible, it can at the most only be considered as only as an admission, which can be used against the first accused and not against the co-accused. In Pakala Narayanan Swami's case(supra) it was held that no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any 38 Crl.R.P.No.398/2018 & others rate substantially all the facts which constitute the offence. It was further held that an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. 53. Learned senior counsel further relied on the decision of the Supreme Court in **Central Bureau of Investigation v. VC Shukla and Others (1998) 3 Supreme Court Cases 410)** , wherein the Supreme Court considered the distinction between admission and confession. Referring to sections 17 to 21 of the Evidence Act, it was held that a combined reading of the above section, it is manifest that an oral or documentary statement made by a party or his authorised agent, suggesting any inference as to any fact in issue or relevant fact may be proved against a party to the proceeding or his authorised agent as “admission”, but, apart from exceptional cases(as contained in section 21), such a statement cannot be proved by or on their behalf. On the distinction between “admission” and “confession”, it was held that only voluntary and direct acknowledgment of guilt, is a confession, but when a confession falls short of actual admission of guilt, it may nevertheless be used as evidence against the person who made it or his authorised agent, as an 'admission' under section 21. The judicial opinion as to its exact meaning was settled by the Crl.R.P.No.398/2018 & others 39 authoritative pronouncement in Pakala Narayana Swami's case. (cited supra). It was held that statement made by an accused person is admissible in evidence as against others, who are jointly tried with him, unless statement amounts to a confession. Where statement falls short of confession, it is admissible as against the maker as admission and not against those who are jointly tried. Relying on the above decision, learned senior counsel pointed out that at the most, the evidence tendered by CW7 can only be treated as an admission which can be used against the first accused alone and not against co-accused. 54. Relying on the decision reported in **Sunil Rai Allas Pauya and others v. Union Territory, Chandigarh ( 2011)12 Supreme Court Cases 258)** , it was contended that, the above decision factually applies in this case. It was a case wherein the appellant allegedly made certain confession statement to a person with whom he was not personally acquainted. It was held that an extra judicial confessional statement made orally before a person, with whom the maker of the confession has no intimate relationship, is not a very strong piece of evidence and in any event it can only be used for corroboration. It was also noted on facts in that case, that the person by whom the alleged confession was made, tried Crl.R.P.No.398/2018 & others 40 his best to shield one person and to implicate in its place another person. Hence, the Supreme Court on facts referred to it as a confession. The Supreme Court in the above decision placed reliance on the decisions in **Ammine and others v.** **State of Kerala (1998 (2) SCC 301) and Prakash Dhawal Khairnar and others v. State of Maharashtra (2002) 2** **SCC 35),** wherein the issue dealt with was not extra judicial confession, but was the judicial confession recorded under section 164 Cr.P.C. 55. CW7 has stated that the the voluntary disclosure was made by the first accused, after CW7 had build up confidence in him . Prima facie, there is nothing to show that there was any exculpatory statement in that. Statement generally refers to his unholy relationship with the third accused and that he has committed a grave mistake. However, considering the circumstances under which it was allegedly made, the nature of disclosure and facts spoken by CW1 in his section 164 Cr.P.C.statement, I am not inclined to completely brush aside version of CW7. Whether it amounts to a confession statement or admission and whether it collectively satisfy either of them, is a matter within the domain of the the trial court. 56. Learned counsel for the CBI vehemently contended Crl.R.P.No.398/2018 & others 41 that with all the infirmities in the initial investigation, that the investigation was carried out by different agencies, destruction of material evidences and material objects and long delay in chargesheeting the accused, each of the crucial witness projected by the CBI refers to each crucial relevant fact, which that witness is expected to disclose, and each of such relevant fact taken along with other facts projected through other witnesses, cumulatively constitute a complete chain of circumstances which is sufficient to lead to an irresistible conclusion of guilt. It was contended that the CBI, according to him, had made out a strong edifice with available materials. It was contended that at this juncture, the right of the CBI to proceed with the trial and to establish the case before the court of law should not be denied and the quality of statement revealed by the witnesses should be tested against the extent to which each witness may be able to survive the test of cross examination. It was also contended that the scope of evidence gathered by the CBI should not be tested against earlier versions spoken by the above witnesses to the other agency at this stage, since the stand of CBI was that earlier agencies did not properly investigate the case, and the testing of the evidence projected by CBI should be undertaken only by the trial court at the time of trial. Crl.R.P.No.398/2018 & others 42 57. As mentioned earlier, substantially investigating agency is relying on few crucial witnesses. The court below has considered the relevant evidence gathered by the investigating agency in so far as it incriminate each of the accused. The materials gathered by the prosecution as against the second accused falls short of the material required for trial. After analysing the materials gathered by the investigating agency in relation to the second accused and the reasoning given by the court below, I also agree with the conclusion that it falls short of the quality required for directing the second accused to face trial. Having regard to the above facts, it is justifiable to believe that there is absolutely no material, which can, if remain unchallenged, lead to the conclusion of guilt of the second accused. 58. Regarding the first and the third accused, the court below seems to have analysed the available materials in detail. It is also true that very few of the conclusions arrived at by the court below does not appear to be legally and factually correct, which have been dealt with earlier. Eschewing those conclusions, which cannot survive the test of law, I feel that substantially the conclusions arrived at by the special judge regarding the prima facie materials appears to be sustainable and is sufficient to proceed with the trial. Hence, even Crl.R.P.No.398/2018 & others 43 eschewing the above few observations made while considering such issues, sufficient materials are prima facie available to proceed against accused 1 and 3. Hence, I find no infirmity in the conclusions arrived at by the special judge that accused Nos. 1 and3 has to face trial. 59. For the above reasons, I am inclined to dismiss the revision petitions filed by accused Nos. 1 and 3 challenging the dismissal of their discharge application. Consequently, the impugned order has to remain. All the revisions are hence liable to be dismissed. 60. In the result, CRP Nos. 398, 627, & 395 of 2018 stand dismissed. Consequently, accused 1 and 3 shall face the trial. Discharge of the second accused is confirmed. Having regard to the fact that the incident happened several years back and the long delay in the trial, the trial court shall expedite the trial proceedings and shall commence trial as expeditiously as possible immediately on receipt of the copy of this order. ## **Sd/-** ## **SUNIL THOMAS** ## **JUDGE** dpk