(Justice Hema’s judgment: relevant parts)
1. CBI lawyer, Sr. Abhaya’s father’s lawyer, or the defense lawyers did not know all the facts surrounding the case. CBI lawyer and Sr. Abhaya’s father’s lawyer seem to be making the arguments more based on media reports than the case records. Defense lawyers are not allowed to access the case records or provided exact details of the charges. So they are also forced to fight the battle based on media reports. [Relevant section; 19]
2. Justice Hema takes a different approach than Justice Basant when faced with lack of information. It is notable that Justice Basant also stated that “So reckoned, I find no difficulty in coming to the conclusion that the directions in Jyothish and the mandates of Section 167(1), 167(3) and Rule 20 have not been specifically complied with”. However his judgment was to give CJM the benefit of the doubt while hearing bail request by Fr. Puthrikayil. Justice Hema decided to treat someone’s liberty with much higher care and studied the details of the case from the official records. [Relevant sections; 20 & 30]
3. CBI is basing their investigation on media reports than real facts in the case as recorded in the case diaries of previous investigations. [Relevant sections; 21, 27, 30 & 94]
4. Justice concludes that CBI created false allegations against ASP V.V. Augustine completely disregarding documented information from the case diaries. [Relevant sections; 23, 25, 57, 58, 59, 60 & 69]
5. Church did not try to manipulate the findings to make it look like suicide, on the contrary, it is the church and the nuns who argued against the suicide theory. This is against the popular belief that it is Sr. Abhaya’s father and Jomon Puthenpurayil behind the murder theory and claiming credit for CBI’s involvement. Also the allegation of inaction by the church and the nuns are unfounded and baseless. [Relevant sections; 32, 33, 34, 35 & 37]
6. CBI failed to investigate early leads. One has to wonder whether special interest groups against Arch Diocese of Kottayam, using Jomon, mislead and influenced CBI to only investigate the church though media propaganda. [Relevant sections; 36, 37, 91 & 92]
7. Are there other reasons for the disturbance in the kitchen? CBI lawyer did not even know where the struggle happened in work area or kitchen. [Relevant sections; 43, 44, 46 & 90]
8. None of the injuries on Sr. Abhaya are more than 0.3 cm deep or affected the skull. No blood was found in the scene or on the veil even though blood was oozing out of the head when the body was removed from the well. This contradicts an axe attack. [Relevant sections; 40, 41, 42 & 43]
9. CBI does not know what weapon was used to murder Sr. Abhaya. No fracture on the body indicating an attack with an axe. Wounds are not even deep to touch skull. Lots of mystery surrounding the axe. [Relevant sections; 47, 48, 49 & 50]
10. Brain finger printing clearly shows Fr. Puthrikayil and Sr. Sephy has no connection to the incident. [Relevant sections; 52 & 53]
11. Narco analysis CDs were clearly manipulated therefore not admissible as evidence. [Relevant sections; 54, 55 & 56]
12. Material objects associated with the case were not destroyed by Crime Branch, as claimed by CBI, rather destroyed by a routine process by Executive Magistrate. It is CBI’s own Varghese P. Thomas who failed to request the protection of the objects. He also failed to do any proper investigation. [Relevant sections; 61, 62, 63 & 64]
13. Justice Hema suspects territorial war between investigating agencies in this case and calls it unfortunate. [Relevant section; 62]
14. The medical report indicates more possibility for suicide than homicide. There is clear history of mental issues and suicidal tendencies in Sr. Abhaya’s family, including multiple attempts to commit suicide (by jumping in the well!) by her uncle. Is it possible that her family is pushing the murder theory to save families reputation? The doctors from outside Kerala gave lots of wait to why the veil was worn by Sr. Abhaya with a night gown, not knowing the rules for the convent, which requires junior nuns to not leave the room without a veil. [Relevant sections; 72, 73, 75 & 76]
15. The latest witnesses paraded by CBI are a joke (Adaka Raju the star witness!). [Relevant sections; 79, 80, 81, 82, 84 & 85]
16. Only purpose of virginity test on Sr. Sephy was to humiliate her, the nuns and the church. It has no relevance in this case. [Relevant sections; 87 & 88
full judgment in emalayalee
Tom Mathew
Justices Basant and Ramkumar should recuse from this case. New judges should hear the case in future.
Justice Hema’s order shatters many myths. The media wrote as if they witnessed the killing.
They were also sure that the killing was because Abhaya saw some ‘immoral activity’ between the 3 defendants. But there is no witness for this too! No evidence also.
The judges should not be investigators. Let the CBI do the investigation.
Why the CBI and judges are this much concerned about Abhaya murder only? A priest was brutally murdered in Irinjalakuda and they submitted a report supporting the local police’s conclusion only recently.
So a priest’s life is not important. But a nun’s life is important. Because they can easily tarnish the image of the church.
This is bad.
The judges should be above suspicion. CBI had no faith in Justice Hema. But the defendants have not said they have no faith in any judge.
Kerala Kaumudi, Asianet etc are in te forefront of the campaign.? why?
It seems the justices themselves are competing with each other in this case.
It is a shame for the judiciary. How can a single judge criticise and ignore another judge’s order? Anyone who reads the order of Justice Hema knows well that she ordered for a new person to to be appointed to oversee the investigation. She was not happy with the investigation of Dy.SP Nandakumar Nair. But another bench says he can continue the investigation.
We believe that all judges are equal and there is no upper class or lower class system there.
The best thing is the case should be moved out of the state, like the Rajan case after the emergency.
Whatever may be the truth, many people do not believe that the defendants in the case will get justice or fair treatment in the Kerala judiciary. Instead of finding truth, the courts are behaving like activists.
Except Justice Hema, no judge said a single word when a woman, that too a nun, was insulted and humiliated. What was the need for the virginity test? to prove what? All world knows that virginity and hymen are not related.
The sadists in the CBI wanted to humiliate a woman. They had no shame to give it to the media and the media had no shame to report it.
Then they rely on the words of a thief. The thief, Adakka raju, claims that he was in the convent and saw the culprits too! What evidence that hew was there? I can say I was there. Will anyone believe?
Then another character claims that the first accused told him about his relation with the nun.
The priest met him for the first time. Yet he will tell him his personal things to a stranger! Only the CBI team will believe that. Normal people will not. Justice hema too said this.
What did Justice Hema say about the curent CBI team?
“The investigation by the present team of officers shall be continued hereafter only under strict and immediate guidance and supervision of a more competent and experienced senior officer or team of officers of CBI, in the light of the observations made in this order. The details of the Supervising officers shall be furnished to this court without any delay.”
Only a division bench can overturn the ruling.
Letter to Kerala Kaumudi
Sir,
It is with much dismay that I read your reports about Abhaya case. I expected Kerala kaumudi to keep a little better standards.
It had a reputation earlier. But such reports will only make it a paper for ‘Ezhava community only. A bad thing.
I know a climate of communalism is growing in in Kerala. Vellappally’s many statements are the best example. They say that the Christians have done some injustice to the Ezhavas. When, where, how? In fact Christians only helped Ezhavas with education.
The reports in Abhaya case is an extenstion to that mentality. Many people want to attack Christian community and Kerala Kaumudi too found it a good chance to do that.(Is Justice Basant a Thiyya and Justice Hema a Nair married to a Christian?)
Your reports give the impression that the arrested priests and nun are the real culprits. They were committing some immoral activity after 4 am (!) and Abhaya saw it.
What are the evidences here? Has anybody seen the murder? No. The thief Atakka Raju claims he was there. If I say, I was there, will you believe it? What evidence is there for Raju’s presence?
Also, Sanju Mathew saw a scooter. Is that an evidence for a murder?
Then Vatayar Sunil writes about Venugopalan Nair and his first meeting with Father kottoor. Just as Justice Hema said, will a psychology professor reveal his illicit relation (if any) to a person he met for the first time?
In your editorial on December 18, you said the acting chief justice is a Christian so he may favor the priests and nuns? If I say Justice Basant is a hard core RSS guy and he is trying to help the communal forces, will you agree?
Since when we started looking at the religion and caste of the judges? So a Christian cannot get justice from an Ezhava judge? Or vice versa?
Justice Hema says she based her order on the case diary and accused Justice Basant of not reading it and abetting a media trial. Is not that true?
What was the need for the virginity test, when the whole world knows that virginity and the hymen have no relation? Why they gave that news to the papers? Was not it to insult all Christians? Did Justice Basant say a word against it? If J. Hema felt angry, it was exactly because of this anti-human test.
Also, your reports suggest that the courts should give orders according to its reports, and public opinion. If the media and people can decide who is guilty or not guilty, what is the need for courts?
In your dec. 18 editorial you ask the Pope to allow marriage of priests and nuns. Was that correct? Just because one or two incidents occurred all priests and nuns are bad?
Also using “naariya” etc on headlines will only tarnish Kerala kaumudi’s image.
Leave the communal mentality. Bring back the decency of old days.
P. Thomas
Honorable Prime Minister,
It is with much pride and joy, as a Person of Indian Origin, I am writing this letter. Recently, two of the Justices of the Indian Judicial system restored my confidence in the ability for truth to prevail in India. On December 19th, 2008 Judge Mir Dera Sheko, of the Port Blair District and Sessions Court, restored the personal liberty for the CISF Commandant K C Sureshkumar. He was denied personal liberty by CBI for almost two years by falsely accusing the murder of advocate T Vasantha. CBI was trying to fabricate evidence and around 70 witnesses against him. The learned Judge was able to withstand the pressure from the CBI and clearly see that the evidence was being fabricated through Narco Analysis and other methods.
On December 31st, 2008 in a similar case in Kerala (Sr. Abhaya murder case), Judge K Hema, of Kerala High Court, restored personal liberty to two priests and a nun. It was very refreshing to see that she based her verdict on the bail hearing for these accused solely on the evidence and did not buckle under pressure from the media. The heavy handed tactics of CBI, by asking to move the case from her, when she started asking some tough questions did not work either. In this case also, the learned Judge was able to see the same tactics of fabricating evidence through Narco Analysis and arranging witness to fix their case on the three accused. In the process CBI investigators did tarnish the image of an entire religious community by conducting Virginity test on a catholic nun. It was the self restraint displayed by the religious leadership and community which avoided any unrest and uprising subsequent to this act. We cannot always count on that kind of a reaction.
However, these cases do not shed a good light on India’s premier investigating agency CBI. It is true that they always get the toughest and very politically sensitive cases to investigate. That does not mean that they have to fabricate evidence and frame innocent people to prove that they get results. While US is considered the greatest democracy with respect for personal liberty, India is considered as an emerging example for democracy and personal liberty. We take lots of pride in the emergence and recognition of India as the new beacon of hope for freedom and justice. Actions in these two cases by CBI and allowing some of their rogue investigators to have a “free for all” attitude will only undermine your efforts to take India to the new heights she deserves.
I really hope that Mr. Aswani Kumar, Director of CBI, will take note of the flaws in these cases, as well as, consider the specific recommendation by Judge Hema to provide better supervision to the investigation being conducted in Kerala in Sr. Abhaya murder case. CBI should follow the lead of the Indian Judiciary and try to rebuild its reputation.
I would like to express my gratitude and appreciation to you and the honorable Minister of Law and Justice as well as the Indian Judiciary for upholding the personal liberty and freedom at a high standard.
Gratefully,
Rinly Moolakatt
Las Vegas, NV
USA