Wednesday, January 14, 2009

Sr. Abhaya case: Justice Vs. Justice?


There seems to be an impression that conflict exists between the orders passed by Justice R. Basant and Justice K. Hema in the Sr. Abhaya case. Justice Hema has clarified that her judgment granting bail to the three accused in the case can be interpreted only by her or the Supreme Court.


Skylark, in an emotionally charged comment on my post Sr. Abhaya case: Sex and the CBI, a detective story gone awry? has provided a link to Justice Hema’s order. While some of my views on it are expressed here, you can form your own opinion by reading it at http://judis.nic.in/kerala/qrydisp.asp?tfnm=85452 I have not seen Justice Basant’s orders.


The CBI’s present contention is that Sr. Abhaya found the nun and two priests who were arrested, in a compromising position. Fearing exposure the first accused strangulated her and the accused nun hit her on the head with a heavy axe. The three accused then threw Sr. Abhaya into a well in the compound while she was still conscious. All these happened 16 years ago.


At the outset of her judgment J. Hema has dealt with the well accepted guidelines for passing orders on bail applications. To decide whether there is a prima facie case she has relied on the case diary even though the CBI objected to it. She found that the arguments of the CBI were not really based on the entries in that document. There were also wild accusations by CBI against officers who conducted the enquiry earlier and about the convent and the church using undue influence to diffuse the case.


A moot point here, which could be of interest to legal experts, is whether the CBI overplayed its hand by bringing in too many grounds to fight the bail plea. That compelled the judge to look into all of them. Better tactics for the CBI could have been to rely on a few solid arguments instead of straying all over.


In the process, two major myths relating to the case have been blown. There was a claim that VV Augustine, the first police officer to investigate the incident manipulated the evidence to present a case of suicide. Well, it was this man who recently committed suicide leaving a note that CBI was responsible for his death, was the one who brought in the ‘homicide’ angle.


The argument that the convent and the Church were using influence to prejudice the case has also been exposed as baseless. It was on a petition by the convent to the Kerala Chief Minister claiming that Abhaya was a murdered that the case was passed on to the CBI. On the basis of the complaint by the convent, CBI took up the case in 1993 and registered an FIR.


Justice Hema, among other things points out CBI’s inability to define the place where the assault on Sr. Abhaya was supposed to have taken place, the absence of blood in the area, and the medical evidence against the possibility of a heavy axe having been used.


Is the CBI on the right track? Or will the real culprits go free if the case is handled in the present manner?


Incidentally, I have started getting hate mail on my earlier post on the subject

10 comments:

Happy Kitten said...

I am sure you are better informed in this case and hence you have formed this opinion.

For me personally, having studied in a convent school, it was shocking to note that a murder happened in a convent! Then I guess I grew up and realized that Church is also yet another man made institution with its own flaws. Yet some of us wanted the Church to be innocent since inwardly that would make us all feel better.

But if CBI is as inefficient as suggested by Hema in her judgment then for ordinary folks like us it is a very scary scenario. Not only has the entire team of CBI been discredited but also the Police Service (from where the Senior CBI officers are recruited). I did mention the same in my own blog too. This judgment has also discredited the National Laboratory. The public can now doubt every case that these two institutions have solved over the years.

You have in your blog mentioned that it was the sisters/convent themselves who asked for a CBI inquiry since they doubted that it is a murder. “It was on a petition by the convent to the Kerala Chief Minister claiming that Abhaya was a murdered that the case was passed on to the CBI. On the basis of the complaint by the convent, CBI took up the case in 1993 and registered an FIR.” This could have happened since the local police closed this case as a suicide.

If this is the case why is the petition from the defendants thus:

6. Learned counsel for petitioners raised mainly the following grounds, among other grounds, to grant bail:

1) Petitioners are totally innocent and they are victims of the sensation created by media and they are arrested without any evidence against them.

2) Sr. Abhaya committed suicide and she was not assaulted nor murdered, as alleged.

3) Several circumstances indicate that there could be no assault at the alleged scene, as alleged.

Why is the Church changing its stance now? Why does it want to believe that Sr. Abhaya was not murdered but committed suicide?

When evidence was destroyed and when even the medical report was tampered with, I think the CBI deserves much better treatment than they have been given now.

I am really sorry for having taken your time, but please take this as a sincere attempt to seek out truth.

andy said...

I think people should read Justice Hemas Judgment before commenting on it. Press report are not entirely reliable. The judgement is very thought provoking, readers may like to read the judment at the link below. No innocent man should be punished and if an innocent person is trapped in the doings of investigators, justice and rule of law would suffer. Hope one day the truth is out.

http://judis.nic.in/kerala/qrydisp.asp?tfnm=85452

Abraham Tharakan said...

Thank you, Happy Kitten. I am glad you brought up these points.

My information on the Abhaya case is only from the media and Justice Hema’s judgment which is available on the Internet.

The Church is made up of human beings who have their flaws. The history of the Church records many gory incidents, sex scandals, intrigue, foul play and so on. If my memory serves me right, there was even a Pope whose illegitimate son became a Cardinal. Recently there were sodomy scandals in the USA involving senior cassocked men. The Church corrects the mistakes and goes on.

If human weaknesses did not exist, all priests and nuns would be living saints. This does not mean that most of them live in sin. Stray incidents do happen. How many cases of the Abhaya kind can one remember? If it was a murder, the motive could have been something other than sex related.

I am sure you were not born then, but in the early 1950s the Principal of a leading girls’ school in Bangalore was murdered in her quarters within the school compound. Such things do happen.

There is no known case against the Church related to Abhaya investigation. Therefore the innocence of the Church is nowhere questioned.

On the positive note Justice Hema’s order can be seen as genuine observation meant to streamline the investigation. After all, in the past more than one CBI team failed to bring the case to a final conclusion. What CBI did was to stop investigation for a couple of days citing confusion in the order.

The Judge had only asked for better supervision. All criminal cases come under the responsibility of superior officers. That is routine. Active supervision means that the senior officer/s should give personal attention to the handling of the case and appropriately direct the investigating team. Would there be any harm if that is done? The credibility of CBI did suffer much during the 15 years of investigation in this case.

In my first blog post on the subject ‘Kerala: The arrest of two Catholic priests and a nun for murder’ (http://parayilat.blogspot.com/2008/11/kerala-arrest-of-two-catholic-priests.html) I had mentioned ‘But, by and large, the attitude of the community seems to be that the law should take its own course no matter whether god-men and women are involved or not.’ As far as I know, that remains the position.

The Church is not a party to the case. To my knowledge the advocates for the accused hold no brief from the Church. They put forward arguments that they feel would help their clients. And, as one lawyer asked in a TV interview, if the Church has reasons to believe that the accused are innocent, why should it not help them to prove their innocence?

Would the investigation have suffered if there was less publicity? Perhaps the CBI should resort to periodic press conferences to inform the public of the progress of the investigation, if that is permitted.

Abraham Tharakan said...

andy, I feel people should read all the recent High Court judgments relating to the Abhaya case.

Happy Kitten said...

Thank you for your response.

I have now read the entire order of Judge Hema and with great sadness realized that she is heavily prejudiced and bend upon turning this case back to suicide. When she now notes that V. V. Augustine himself had his doubts that it could be a homicide and so did the CBI, why is she bent on changing the line of investigation? Does the eminent Judge think that the so called injuries found on Sr. Abahaya was inflicted by Abhaya herself before she committed suicide?

Towards the end she urges the investigating team to investigate the suicide theory and not the homicide one.

“ 92. The investigators have to find out whether a better and clearer picture can be obtained by exploring the details in the above scientific study. If the indications in the above scientific report are true, a larger question may arise, why the suicide was kept as a secret?”

I also cannot understand the particular case diary that she is referring to since it seems to be contradicting. Are there different case diaries and how are they tamper proof? When all other evidence has been destroyed how relevant is this “Case Diary”?
Please have a look at this contradiction regarding Sri. Vargheese P. Thomas.


“58. A perusal of the case diary shows that Sri. Vargheese P. Thomas, Dy. S.P., CBI recorded the date of registration of FIR as 29. 3. 1989 , ie., three years prior to the death of Sr. Abhaya. (vide page no.1 in case diary volume -5).

64. A perusal of the case diary maintained by CBI during relevant period shows that the FIR was registered by Sri. Varghese P. Thomas, Dy. S.P CBI on 29. 03. 1993. But, he did not question even one single witness or do anything in particular for about two months.”


I agree that no Church can be free from human flaws but it would be better if the Church realized that the believers and the public have no illusions about this. It is also time they realized that the believers and the public want a Church (any) who admits errors, punish those who stray and move forward like a true warrior. If not, they stand guilty of having made many lose their faith and even sin. Even in the child abuse case, if the relevant priests were not shielded many victims would have had a happier life since they wouldn’t have been abused.

In any case, I still believe that there is hope for Sr. Abhaya case and that the truth shall prevail.

Joseph said...

Church in this case has exposed itself too much in favour of the culprits and not a single unbiased soul in Kerala will think that church has nothing to hide.Credibility of the church leaders have become a casuality in their attempt to protect the guilty.Unfortunately church leaders think that the accused are more important than justice,truth and Christian values

Kariyachan said...

End of the day, yet another case is being washed down.

The public and Jomon Puthenpurackal and Abhaya's family seem to be satisfied with the outcome and the controversies regarding the truth finding measures taken up by CBI.

The questions remaining are..

1) Whether the accused or any other men were inside the Convent/Hostel compound during the unconventional hours on the specified date? If so why and for what purpose?

2)Was there a pattern of visits to the hostel by the accused as witnessed by "Adakka Raju" and neighbour "Sanju" ?

3) Is there any insider information relating to the rapport between the accused three persons available to CBI?

4)If the Narco Analysis results are reliable and if the accused have confessed of the crime,why cant CBI publish the results of Narco Analysis, or get the results analyzed by an independent Jury consisting of Eminent Psychologists / Psychiatrists, Lawyers, Law enforcement officers etc to re-validate the results.

5) What is the current status of the investigation and the case?

6)What steps have the current CBI team taken to validate the allegations of Varghese P.Thomas (DSP, CBI) who resigned citing external interference in the case.Was his case diary properly studied by the subsequent teams who investigated the matter?

7) Any photographic evidence available regarding the saga such as wounds etc of Abhaya.

8)Any personal items belonging to Abhaya such as a diary etc available?

9)How many of Abhayas peers at the Hostel during the period was subjected to a lie detection test, to ascertain any un-natural sounds or incidents during the fateful night?

10) Are there any external parties involved other than the three accused?

If we were to list questions there are another similar 100's of to be answered.

Skylark said...

I think my commencts in the following link will be helpful.

http://www.sanghparivar.org/node/3463/3106#comment-3106

skylark

Seby Sebastian said...

You are all learned people,but we sometimes forget what we learn in the Bible.
Church is built by Jesus Christ.
Yes,Popes may have children. I know a nun who had her daugther as a nun in the convent. The circumstances are different. This we can discuss later.
We have to differenciate a sin and a crime. We have to diferenciate a sin and a cardinal sin. Irreparable sins and reparable sins. Murder is a Cardinal and irreparable sin, challenging Him, the Almighty

No where in the history of church you will find a priest or Nun killing some one. You cant find a hospital run by nuns where they do the abortion.
Yes Sex is a sin,but a reparable sin. Daily we can read the reports on sexual assualts but please dont mix it with cardinal sin.You can confess and get the absolation. We shouldnt mix up with the sin and a crime.
Church will never protect a crime, that too a cardinal sin.
A Priest or a Nun can never Kill a person. It cant happen as they are anointed.
Trust me, the CBI has to re investigate this case and find the Original killer if it is a murder.

sebsebastian@yahoo.com

Maria said...

Thanks