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

Sr. Abhaya case: Sex and the CBI, a detective story gone awry?

The investigation into the death of Sr. Abhaya, a young Catholic nun has been going on for 16 years. She was found dead in the well of her convent. A nun who was in the same convent as Abhaya and two priests were arrested recently as prime suspects for murdering Abhaya. (See Kerala: The arrest of two Catholic priests and a nun for murder)

Granting the accused bail, the Kerala High Court came out with scathing criticism of the way the latest team of sleuths (there had been a few earlier) of the Central Bureau of Investigation (CBI) is handling the case. The Court also expressed disapproval of the media role, and the accused nun being subjected to virginity test.

The virginity test in this case defies logic. It could have only two results – either the woman concerned had sexual intercourse or she was still inviolate. This is determined on the finding whether the hymen is still intact, though that need not lead to a precise conclusion.

The Catholic Church resorts to virginity test in instances were annulment of marriage is sought on the claim of non-consummation. But the examination is done discretely and total secrecy is maintained. In the Abhaya case the news was in the media in no time.

The CBI theory, as far as I can make out, is that Abhaya saw the accused in a compromising position and the threesome resorted to murder to silence her.

What was the CBI trying to prove with the virginity test? Assuming that the accused nun was found to be not a virgin in 2008, what bearing does it have to Abhaya’s death 16 years ago? She could have, if at all, lost her virginity before the alleged murder or some time after it.

If a lady is proved to be a virgin according to the test, does it confirm that she has not indulged in sexual activities with the opposite gender? Certainly not. What then was the relevance of the virginity test in the Abhaya case?

Then there was the unfortunate publicity to the event. Belonging to a religious order neither invests any one with special rights nor take away any existing rights. Every accused has to be treated decently and humanely.

Yesterday the doctor who conducted the post mortem on Abhaya’s body gave a secret statement before the concerned Magistrate that Abhaya drowned in her convent’s well and the death could amount to manslaughter. I do not know whether a doctor is legally competent to make such an observation. If this claim has deviated from his original report, he would have a tough time to survive cross examination.

What is incredible however is that the ‘secret’ deposition was all over the media within hours.

What is the CBI up to? Are they on the right track or messing up the investigation? The High Court has done well to instruct the CBI to bring the current investigation team under the direct supervision of an experienced and competent senior officer.

The CBI’s reaction? Reportedly the agency is contemplating appeal to the Supreme Court.

Ends.

Also see:

Sr. Abhaya case: Justice Vs. Justice?