Kerala High Court on Thursday suspended the life sentence imposed on Sister Sephy and Fr Thomas Kottoor, and granted them conditional bail. The CBI Special Court, on December 22, 2020, had found the two guilty of the murder of Sister Abhaya, a 20-year-old novice at St Pius Convent, Kottayam, when her body was found in the well of the Convent on March 27, 1992. The HC found merit in the defence argument that the Special Court conviction was made without sufficient evidence. It also pointed out that the CBI had failed to effectively counter the defence arguments.
Kottoor and Sephy have been asked to furnish a bail amount of Rs 5 lakh each and have been barred from travelling outside Kerala. It was on a plea submitted by the two convicts that the Division Bench of Justice K Vinod Chandran and Justice C Jayachandran suspended the sentence and granted bail.
The High Court had admitted their appeal against the trial court conviction on January 19, 2021, barely a month after the CBI Special Court sentenced them to life imprisonment.
Their appeal had said that the CBI Special Court trial was riddled with "grave illegalities and irregularities". It was also said that the conviction was based on the evidence of unreliable witnesses and the fiction they had thought up.
The CBI is yet to file a counter affidavit in the High Court. The sentences of both the convicts will remain suspended till their appeal is disposed of.
Senior counsel B Raman Pillai, appearing for Kottoor, submitted in the High Court that the trial court had sentenced him to life imprisonment without any evidence. The defence argued that "the learned trial Judge has given a free play of his smattering knowledge in physics, psychology and medicine to rubbish the expert testimony and that of the other inmates of the Convent, throwing to the winds all principles of criminal jurisprudence, while carving out a unique jurisprudential thought not sanctioned by extant laws."
The CBI Special Court had charged Kottoor under three sections of the Indian Penal Code: 302 (murder), 201 (destruction of evidence) and 449 (house trespass). Sr Sephy was slapped with two: Sections 302 and 201.
The Special Court verdict convicting the two was a near surprise as crucial prosecution witnesses, at least nine of them, had turned hostile during the trial stage.
Can a thief be honest
In fact, the Court had found merit in the testimony of a small-time thief. After the nightwatchman Challappa Das had died and Sanju P Mathew, who lives near the convent, turned hostile, thief Adaykka Raju was the only person who had seen Fr Thomas Kottoor enter the Convent the night Abhaya was found dead. In the court Raju stuck to his stand that he had seen two men walk stealthily into the Convent as he was trying to pull out the copper strips from the lightning conductor at the roof of the convent.
If the trial court saw in Raju a man of great conviction (the judge described him as a honest man who had turned down even the monetary gifts he was offered to take back his statements), the High Court found serious inconsistencies in its testimony.
Raju had testified that he had seen Kottoor climbing the stairs and also that he had seen him walk on the terrace with a lit torch. "If the evidence of PW3 (Raju) is believed, that, from the time he entered the convent at 3.00 a.m. till the time he left at 5.00 am, A1 (Kottoor) was in the terrace of the building; the crime definitely could not have happened as alleged by the prosecution," the High Court said.
An improbable secret
Further, the only evidence linking Kottoor to Abhaya's death was an indirect confession he is said to have made to Kalarcode Venugopalan, a rights activist and a serial litigant.
Kalarcode had told the court that Kottoor had confided to him in the Kottayam Bishop's House that he and Sr Sephy were like husband and wife. The defence had argued that Kottoor and Kalarcode were strangers to each other for Kottoor to confide an extremely private affair. What's more, the confession was made late, in 2008, 16 years after Abhaya's death. It was also pointed out that Kottoor's supposed confession was not included in the remand application by the CBI investigating officer.
Yet, it was Kalarcode's unverified testimony that the trial court judge had used to confirm Kottoor's and Sephy's alleged love affair.
Confusion regarding Archimedes principle
Also, Dr Radhakrishnan, the doctor who did the autopsy, testified before the court that the injuries on Abhaya's body could have been caused either by hitting her with a blunt object or by Abhaya's head hitting a hard object inside the well as the body comes up on the upthrust.
The trial court rejected this buoyancy theory. "If the body had travelled to a certain depth through the water it means that there is no object to block this movement of the body through the water, and consequently there would be no object for the body to strike against while moving towards the surface of the water due to natural buoyancy, if any," the order said. Even then, a critical question was raised: "What if the body had fallen into the well at an angle?"
Doctor vs photographer
A troubling question during the trial was whether the injuries found on Abhaya's body were inflicted before her fall into the well or during her fall. The trial court judge said at least two were made before she fell into the well. These were nail marks on either side of the neck.
These marks were but seen only by a local photographer, Varghese Chacko, who was called by the police to take pictures of Abhaya's dead body. The doctor who did the autopsy, Dr Radhakrishnan, has not recorded these marks.
The Special Court judge found the still photographer's account far more reliable. He said the autopsy doctor would have failed to notice such injuries. "The evidence of PW7 (photographer) will prevail over the evidence of PW33 (the doctor) as PW7 was specifically deputed for capturing the close-up photographs of Sister Abhaya and his chance of noticing such injuries is more than that of PW33," the judgment had said.
The High Court was not convinced. "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."
After hearing the two sides, here is what the High Court said in its Thursday order: "On a prima facie look at the evidence as pointed out by the defence, 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 CBI was represented by the special public prosecutor, High Court of Kerala. The defence team comprised of B Raman Pillai, P Vijayabhanu, Chacko Simon and Sojan Micheal.