Kerala High Court

Fr. Thomas Kottoor vs Central Bureau Of Investigation on 23 June, 2022

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                   THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                       &
                   THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
             Thursday, the 23rd day of June 2022 / 2nd Ashadha, 1944
                     CRL.M.A.2/2021 IN.CRL.A NO. 42 OF 2021
         SC 1114/2011 OF THE SPECIAL COURT(SPE/CBI),THIRUVANANTHAPURAM
  PETITIONER/APPELLANT/ACCUSED No.1:

       FR. THOMAS KOTTOOR, AGED 72 ,    S/O.K.T MATHEW, KOTTUR HOUSE,
       KIDNAGOOR, KOTTAYAM.

  RESPONDENTS:COMPLAINANT AND STATE:

     1. CENTRAL BUREAU OF INVESTIGATION, ACB/COCHIN, REPRESENTED BY THE
        STANDING COUNCIL OF CBI, HIGH COURT OF KERALA, ERNAKULAM,
        KOCHI-682031.
     2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
        KERALA, ERNAKULAM, KOCHI-682031.




     Application praying that in the circumstances stated therein the High Court
be pleased to issue an interim order suspending the execution of sentence
passed against the petitioner in Sessions Case No.1114 of 2011 of the Court of
the Addl.Sessions Judge-(Special Judge-SPE/CBI) ,Thiruvananthapuram and to
release him on bail till disposal of the appeal.

    This application coming on for orders upon perusing the application and upon
hearing the arguments of M/S.RAMAN PILLAI(Sr.),R.ANIL,M.SUNILKUMAR,V.B.SUJESH
MENON,T.ANILKUMAR,THOMAS ABRAHAM,MAHESH BHANU S,S.LAKSHMI SANKAR,RESSIL
LONAN,CHACKO SIMON,Advocates for the petitioner and of the ASGI for the
respondent 1 and PUBLIC PROSECUTOR for the respondent 2 ,the court passed the
following:

                                       p.t.o
         K.VINOD CHANDRAN & C.JAYACHANDRAN,JJ
       -------------------------------------------
Crl.M.A.No.2 of 2021 in Crl.Appeal No. 42 of 2021 and
  Crl.M.A.No.2 of 2021 in Crl.Appeal No.64 of 2021
        -------------------------------------------
        Dated this the 23rd day of June, 2022

                                  ORDER

Vinod Chandran, J.

The instant case evoked a lot of public outrage

and the initial inference of suicide and repeated

requests made by the investigating agencies to close

the case as untraceable, created a frenzy which put

officers, men and institutions on the dock; often in

the extended media trial. A final report was filed

eventually by PW49, the last of the Investigating

Officers (I.O) from the Central Bureau of

Investigation (C.B.I), in July 2009; he having taken

over the investigation on 1.11.2008. The deceased was

a Nun residing in a Convent which also had a Ladies

Hostel. A1 to A3 were arrested on 18.11.2008 and

contrary to the earlier inferences, a charge under

Section 302 was levelled. The accused filed

applications for discharge, of which, that filed by

A2 alone was allowed. Challenge was made by both A1,

A3 and a public spirited person, PW24, and the C.B.I; Crl.Appeal Nos.42/2021 &64/2021

the last two against A3's discharge; all of which stood

rejected by this Court.

2. A1 and A3 faced trial and was convicted for

offences under Sections 302, 201, r/w 34 & A1 also under

Section 449 IPC. Both the accused were sentenced with

imprisonment for life and fine of Rs.5 lakhs each, for

the offence under Section 302 r/w 34 and seven years

rigorous imprisonment with fine, each of Rs.50,000/-,

under Section 201 r/w 34. The first accused also was

sentenced to life imprisonment and fine of Rs.1,00,000/-

for the offence under Section 449. Suitable default

sentences were also imposed. The appellants have filed

the above applications for suspension of sentence till

the hearing of the appeal.

3. We heard Sri.B.Raman Pillai, learned Senior

Counsel for A1, Sri.P. Vijaya Bhanu, learned Senior

Counsel for A2 and Sri.P.Sooryakaran Reddi, learned Addl.

Solicitor General for the C.B.I.

4. According to Sri.Raman Pillai, the very

allegation of the prosecution was that A1 to A3 together

committed the crime and when A2 was discharged; the very Crl.Appeal Nos.42/2021 &64/2021

foundation of the allegation is put to peril and there

could be no successful prosecution carried out. It is

pointed out that in the earlier investigation, though an

axe was recovered from the premises; allegedly the

offending weapon, later it was altered as a 'kaikodali'

(transliterated roughly as 'hand-axe'). However both

these weapons were neither seized or recovered nor

produced before Court, despite the Doctor, who conducted

post-mortem, spoke of a hand-axe having been shown to

him. Obviously the alteration regarding the weapon was

only since the original axe could never have caused the

minor injuries found on the deceased. The allegation

against A1 to A3 of having been found in suspicious

circumstances, was later altered to having been found

engaging in sex; so as to incite public condemnation

especially since the accused were persons conferred with

holy orders; a Priest and a Nun. The circumstances listed

out by the learned Sessions Judge were referred and each

of them assailed, vehemently. According to A1, he was not

at all present in the Convent and the disturbance found

in the kitchen does not incriminate him. The presence of Crl.Appeal Nos.42/2021 &64/2021

A1 in the Convent was spoken by PW3 who admittedly

entered the Convent in the wee hours to thieve from the

premises. The inherent weakness of the testimony of a

thief coupled with the discrepancies in the versions, in

the deposition and prior statements, as to how he saw A1

in the Convent and later identified him, were pointed

out. The trial Judge found PW8 to have corroborated PW3,

which corroboration, if at all can only be to the

declared vocation of PW3, a thief, and not at all with

respect to his presence at the Convent or the

identification of A1. PW8 was a witness in a number of

cases against PW3; judgments in which were produced by

the prosecution across the Bar after the evidence was

closed, clearly indicating his testimony to the contrary.

PW3's prior statements regarding the person to whom he

sold stolen property was a different person altogether.

5. PW3 also has alternatively spoken of having seen

A1 climbing the stairs with another and only of seeing

them both walk on the terrace of the building with lit

torches. If the evidence of PW3 is believed, that, from

the time he entered the convent at 3.00 a.m. till the Crl.Appeal Nos.42/2021 &64/2021

time he left at 5.00 a.m, A1 and another was in the

terrace of the building; the crime definitely could not

have happened as alleged by the prosecution. The

identification made is from the terrace of a five storied

building, while the witness was standing in the

neighbouring compound separated by a wall. Specifically

D1 to D5 contradictions were pointed out and it is also

argued that no period was mentioned in which the third

incident of theft in the Convent, by PW3, had occurred.

PW3 admitted to have stolen two Water Metres on his

leaving the Convent on the crucial day, both of which

were not recovered. CWs 105 and 106 were arrayed in the

final report as house owners from whose compound the

Water Metres were thieved, both of whom were not examined

before Court. The admission of A1, which is another

circumstance found against him, is allegedly made to PW6,

a known vexatious litigant and trouble maker; to whom

such statements would never have been made by A1, who had

no prior acquaintance with him. PW6 also prevaricates on

the time when such confession was made; which even if

made, reveals only an illicit relationship and not Crl.Appeal Nos.42/2021 &64/2021

involvement in the crime of murder. The subsequent

conduct, another circumstance, is spoken of by PW24 who

had been heading an Action Council against the so called

lackadaisical investigation and who was almost in the

role of a Prosecutor in the case. The medical evidence by

the experts was in contra distinction with each other and

vary considerably from the findings of the post-mortem

examination.

6. Learned Senior Counsel Sri.Vijaya Bhanu takes

us through the specific grounds in the application for

suspension of sentence at paragraph No. 4. It is argued

that there is no evidence at all to show that A1 and A2

had been together on the crucial night or met each other

or carried out any activity together or inflicted the

wounds found on the deceased or dumped the body of the

deceased into the well. The Court merely presumes on

unreliable testimonies that A1 and A3 had been in an

illicit relationship and while engaged in it, was chanced

upon by the deceased, leading to the murder; to silence

the deceased. It is vehemently argued that A3 was

medically found to be a virgin and the court presumed Crl.Appeal Nos.42/2021 &64/2021

that she had carried out medical intervention to escape

detection; without any evidence on that count. The

admission of A3 said to have been made to PW19 is vague

and not incriminating A3 in the crime. The post-mortem

report, Ext.P6, clearly indicates death by drowning which

was attempted to be deviated from by PW23, in the

laboured questioning in chief examination. The six

injuries noted by PW3 were simple and minor injuries

which were sought to be mooted as possibly fatal injuries

caused by a weapon; the details of which are spelt out

from imagination. PW31 another expert examined is not at

all believable and his deposition was to the effect that

the death was due to the combined effect of drowning and

injuries on the head; quite contrary to the post-mortem

findings and a communication authored by him, confronted

to him in Court. A3 was normally residing in the room and

her presence outside the room was not seen by anyone. It

was pointed out 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 Crl.Appeal Nos.42/2021 &64/2021

the winds all principles of criminal jurisprudence, while

carving out a unique jurisprudential thought not

sanctioned by extant laws.

7. The learned ASG commenced his arguments with the

submission that there is no direct evidence and the case

is based only on circumstantial evidence. It has been

established that A1 had an amorous relationship with A3;

quite in opposition to the vows of the holy order both of

them took, and clandestinely carried it on. A1's visits

to the Convent in the day light has been spoken of by the

inmates and his visits at night to the Ladies Hostel was

obviously to carry on the illicit relationship with A3.

His presence in the Convent on the subject night has been

spoken of by PW3, as corroborated by CW8. The evidence of

PW3, 6 and 8 having established the illicit relationship

and the presence of A1 at a very odd hour, that too in a

Ladies Hostel, necessarily requires a valid explanation

which does not come forth from A1. The disturbances found

in the kitchen as noticed by the Cook in the morning,

could not have escaped the notice of A3, who was in the

adjacent room. A3 had purposefully chosen the room in the Crl.Appeal Nos.42/2021 &64/2021

cellar, to carry on her amorous activities especially

when even the maids were accommodated in the first floor.

The slippers and the veil worn by nuns, found in the

kitchen at the Cellar floor of the building belongs to

the deceased. The death by homicide is found by the

learned trial Judge, after considering expert opinion and

the post-mortem report. PW31 is an expert of exceptional

credentials who was relied on by the Sessions Judge;

rightly so. The ante-mortem injuries were noticed and so

were the injuries on the head which were caused by a hand

axe. The trial judge having meticulously gone through the

evidence relied on the deposition of PW7, the

Photographer, who spoke of nail marks on the neck of the

victim; indicating external pressure being applied on

her, which rules out suicide. Each of the circumstances

were elaborately discussed by the Sessions Judge and

there is no reason to even prima facie find the

conviction to be based on no evidence, especially at this

stage. There is no ground for suspending the sentence,

concludes the learned ASG, who canvasses the continued

incarceration of the accused convicted of a ghastly Crl.Appeal Nos.42/2021 &64/2021

crime, violating the conscience of any civilised society;

committed only to hide their carnal escapades which also

violate the vows of chastity taken by them.

8. As we noticed at the outset, the instant case

was in the public eye for long and there was no

resolution to the cause underlying the sad death of a

young nun, which purportedly was achieved by the impugned

conviction. But that shall not deter us from considering

the evidence led by the Prosecution as to the culpability

of the two accused who stood trial. We are undaunted by

the fact that the accused are ordained members of a

Church nor intimidated by the outrage displayed in

public. We also remind ourselves that we are only on a

prima facie consideration of whether the accused, from

the evidence led, can be found to have committed the

crime, beyond all reasonable doubt. The Sessions Judge

has first listed out the issues, which at serial number

one deals with the various aspects leading to a

conclusion of homicide and at serial numbers 2 to 5

regarding the culpability of the accused of the actual

crime of murder. We would consider the aspects in the Crl.Appeal Nos.42/2021 &64/2021

reverse order; first the circumstances which form an

unbroken chain linking the accused and then as to the

causation of death.

9. The circumstances as listed out by the learned

Session Judge were ten in number: (i) the abnormal

disturbances in the kitchen, work & wash area found on

the morning of 27.3.1992, (ii) solitary presence of A3 in

the cellar of the Convent on the night of 27.3.1992; both

spoken of by PW11, (iii) the presence of A1 deposed by

PW3 and corroborated by PW8 (iv) admission of A1 to PW6

about an illicit relationship with A3, (v) admission of

A3 to PWs 19&29 Doctors about her amorous relationship,

(vi) subsequent conduct of A3 of medical intervention to

cover up her loss of virginity, (vii) failure of the

accused to explain the incriminating circumstances, (ix)

the bizarre version put forth by the accused regarding

the cause of death alleging it to be a suicide and (x)

destruction of vital evidence.

10. The first two circumstances are spoken of by

PW11, an employee in the kitchen of the Convent. PW11 was

the first one to come to the kitchen area on the morning Crl.Appeal Nos.42/2021 &64/2021

of 27.3.1992, who had closed the doors from the work area

to the outside, before retiring on the previous night.

She had gone with the deceased to a Bible Convention on

the previous day and returned at about 8.30 p.m after

which they went about their individual affairs in the

Convent; the deceased being an inmate-student and the

witness, a maid. PW11 is said to have got up about 5 a.m.

in the morning and on reaching the kitchen, saw the

lights on, which she had put off on the previous night.

She also saw the exit door from the work area, which she

closed from the inside, open in the morning with a head

gear worn by nuns, hooked on the door. Two slippers were

also found near the fridge and wash basin. She asked her

co-employee to call Sister Stephy (A3) and when the

Mother came; obviously the head of the Convent, she was

told that the headgear and slippers belong to the

deceased. Despite the witness being declared hostile, the

Court relied on her testimony; rightly so. But the

disturbances were the slippers and veil found, in

addition to the 'kaikodali' seen only by PW4, the Sub

Inspector who reached the crime scene a little later. The Crl.Appeal Nos.42/2021 &64/2021

presence of the weapon, not spoken of by PW11, will be

dealt with later. The so called disturbances found in the

kitchen by PW11, being the abandoned slippers and veil of

the deceased, do not incriminate anyone, especially when

the deceased was missing and later found dead in the

well.

11. Admittedly an inmate of the convent had died on

the previous night and her body was recovered from the

well. According to PW11, she was with the deceased on

the previous day and they parted company only at night

after they returned from the Bible Convention. The

testimony of PW11 definitely does not lead to any

inference of the deceased having nurtured any suicidal

thoughts nor does it warrant an inference of murder; by

itself. As far as the solitary presence of A3 in the

Cellar, it is deposed by PW11 that, one Sister Helen who

was the roommate of A3, was not available for 4 to 5

days. It cannot for a moment be assumed that A3 chose the

Cellar room to carry on her amorous jaunts since she had

a regular room-mate staying there, who was temporarily

absent. Even the trial Court does not find this Crl.Appeal Nos.42/2021 &64/2021

circumstance to be engineered and prima facie we are of

the opinion that the above stated circumstances cannot be

considered as incriminating A3 and definitely not A1.

12. The next circumstance is the sighting of A1, by

PW3 at the Convent. According to PW3, who declared

himself to be a petty thief, he had entered the convent

thrice in the night with the intention of theft. He used

to pluck coconuts from the neighboring property from

where he saw the copper plates on the lightning arrester.

He used to climb the cocoa tree in the neighboring

property, to scale the wall of the Convent and steal the

copper plates. He also deposed that he used to sell the

stolen plates to a Muslim, whose name he was not aware

of. It was deposed in chief examination that, on the

third occasion, when he reached the cocoa tree, he saw

two persons, males, coming to the staircase with torch

lights who were identified as A1 and A2. According to

him, he had also seen A1 near the Convent on the next

morning while he was proceeding to sell the water meters

stolen on the previous day. He immediately testifies that

he saw the commotion near the Convent when he was Crl.Appeal Nos.42/2021 &64/2021

returning after selling the stolen water meters. Anyway,

next morning seeing a commotion near the Convent, he made

inquiries and was told that a nun is found dead, in the

well, where he also saw A1.

13. Ext.D1 contradiction marked form PW3's Section

161 statement reads as the witness having found two

persons standing on the terrace, watching the nearby

areas with the aid of torch light, which PW3 denied in

cross examination. According to PW3, he reached the cocoa

tree between 3.30 and 4 a.m, contrary to his S. 164

statement that it was between 2 and 2.30 a.m (Ext. D4).

He admitted in cross that he remained there till 5 a.m

when the siren sounded. PW3 also spoke of not having

carried out any theft for reason of having seen two

persons in the terrace, but spoke of taking two water

meters and selling them on the same day. There is no

recovery made of the said water meters, which could have

corroborated the version of PW3 and also pinpointed the

site from which such water meters were thieved. More

pertinently the deceased was seen alive at 4.15 a.m. and

PW11 was woken up at 5 a.m. PW11 also came down to the Crl.Appeal Nos.42/2021 &64/2021

Cellar, where she detected the 'disturbances'. PW3 says

he was in the neighboring property till 5.00 a.m.,

watching the two persons on the terrace of the building.

If true, PW3 definitely would have witnessed a part of

the alleged crime.

14. The deposition that PW3 had sold the water meters

assumes relevance especially in the circumstance of the

trial court having relied heavily on the testimony of PW8

for corroboration of the evidence of PW3. PW8 in his

deposition stated that he used to regularly purchase

things from PW3 and that PW3 was familiar with him as

also his family members. However, PW3 in his 161

statement feigned ignorance of the name of the person to

whom he sells the stolen articles. In the 164 statement

to the Magistrate, PW3 named his regular fence as one

Ashraf and PW8 deposed that PW3 used to bring articles to

his uncle Ashraf. One other interesting aspect is the

various judgments produced by the prosecution across the

Bar, before the trial Court, after the evidence was

closed. These are judgments in which PW3 was accused of

theft and in all of them he stood acquitted. PW8 was a Crl.Appeal Nos.42/2021 &64/2021

witness in the said cases where he feigned total

ignorance of PW3 and denied having purchased stolen

articles from PW3. PW8's evidence was relied on, coupled

with the allegations of custodial torture of PW3, to find

manipulations by a Police Officer; which cannot

incriminate the accused.

15. PW3 also spoke of having seen A1 in torch light

on the previous night; with whom he had no prior

acquaintance. He says he also recognized the said person

from a crowd near the convent on the next day morning. He

saw A1, as per the prior statement, in pitch dark from

near the cocoa tree of the neighboring property; while A1

was in the terrace of the five-storied building of the

Convent. PW3 in Court, said he saw two persons

approaching the staircase of the Convent, from the next

property separated by a wall. Both these versions are

highly improbable and in any case not sufficient to

enable a valid identification, inter alia, as there is no

source of light spoken of. The Section 161 statement from

which the contradictions were marked was taken on

11.07.2007, 15 years after the alleged crime and there is Crl.Appeal Nos.42/2021 &64/2021

no TIP conducted to identify A1 who was arrested much

later on 18.11.2008. The first identification of a

person, whom PW11 saw in the year 1992, was made at the

time when he deposed before Court in the year 2019,

making it a very weak piece of evidence.

16. The fourth circumstance relied on by the trial

court is the testimony of PW6. PW6 claims to be a social

worker; who the defense allege is a vexatious litigant.

According to him, he had contacted A1 when there was a

report in the media that the accused in this case were

being subjected to Narco analysis test. He contacted the

Bishop's house at Kottayam and obtained an appointment

with A1. According to PW6, A1 was with A2 and the

conversation was with respect to Narco analysis. A

leading question was put to him as to the physical and

mental status of A1 at the time of interview and PW6

responded that A1 was apprehending something and was

aghast with fear. When PW6 tried to calm A1, he caught

hold of his cassock and told the witness with anguish

that he was also a human being inside the dress and he

was not made of stone or iron. He is said to have Crl.Appeal Nos.42/2021 &64/2021

confessed that he committed a mistake and he was living

with Stephy as husband and wife. He also implored that he

alone was being crucified while everyone was indulging in

such activities. This is styled as an extra-judicial

confession; quite strange since the crime alleged is of

murder and not lewd immorality. When the witness mounted

the box on the next day for cross examination, without

any prompting, he volunteered that the interview with A1,

he spoke of in his chief examination, occurred after the

Narco analysis. We cannot but notice that A1 is not being

tried for the illicit relationship with a woman, even a

nun and if at all it is established, it does not

establish his involvement in the crime, unless there are

other cogent circumstances. Pertinent also is the fact

that PW6 did not say the name of A3 as having divulged

to him by A1, in the Section 161-statement. Together with

this, we have to look at the sixth circumstance of the

subsequent conduct of A1 as spoken of by PW24. PW24 was

heading the action council for justice to the family of

the deceased. According to him, A1 threatened him with

dire consequences if he continues challenging the Church, Crl.Appeal Nos.42/2021 &64/2021

specifically with the instant case. In fact, PW24 has a

contention that his own brother was incensed with his

actions against the Church and had attacked him

physically. The threat of A1, if at all levelled against

PW24, does not establish his involvement in the crime

since the acts spoken of by PW24, could have been

motivated on the assumption that PW24 was attempting to

tarnish the image of the Church.

17. Next, we come to the admission of A3 to PW19

and PW29. The history given by A3; who voluntarily agreed

to a medical examination, admitted herself having

indulged in sex and having been twice subjected to per

vaginal examination. She admitted having indulged herself

with a relative, without actual penetration. The trial

Judge having first found no inference possible to the

fact in issue, later draws a conclusion to A3's

predilection to sexual activities though it offers little

connection to her relationship with A1. We cannot but

observe that the conclusion is strained for A3 is not on

trial for her loose morals or character flaws. PW19, the

Doctor who examined A3 deposed that her hymen was not Crl.Appeal Nos.42/2021 &64/2021

torn and that there could be no definite opinion

regarding A3 having had a sexual intercourse. Admittedly

there were interpolations made by PW29 in the medical

report marked as Ext.P79; which was sought to be

explained away as having been made after consultation

with PW19. We would have expected the two Doctors, who

were constituted as a team, for the examination of A3, to

have carried out a joint examination and made a

comprehensive report of the findings, both, agreed upon

and differed from. The glaring interpolations cannot be

shrouded in high sounding words of the 'intrinsic

incompatibility within the semantic outcome of holistic

frame work of the report' not having been brought out.

When the relationship with A1 was not established, and

there is no concrete evidence regarding any medical

intervention done on A3, it cannot be assumed that PW19's

opinion on examination was only because of a medical

intervention carried out, to cover up the loss of

virginity. The opinion also was that there is possibly a

surgical intervention to repair the torn hymen, since the

examination revealed it to be scarred. The opinion is not Crl.Appeal Nos.42/2021 &64/2021

definite and the probable inference again is a breach of

the chastity vows, which again do not establish the

relationship with A1 or the alleged escapade on the

crucial night or more critically connect A3 with the

crime of murder.

18. On the medical evidence, we need not enter

any finding since at this stage we are not examining the

evidence led, in totality, as would be done in the case

of a hearing in appeal. But we look at the same only for

completeness and both the defence and the prosecution

have addressed arguments on the same. We have to first

reckon the postmortem certificate, Ext.P62, then the

evidence of PW33, the Doctor who conducted postmortem and

PW31, the celebrity expert witness. The clear opinion as

to the cause of death available in the postmortem

certificate is that 'the deceased died of drowning'.

Searching examination was made of the Doctor, in

chief-examination, to enter upon on an opinion as to how

the ante mortem injuries could have been caused.

Eventually the Doctor deposed that the possibility of

injuries numbered as 1, 2 & 6 being caused by assault Crl.Appeal Nos.42/2021 &64/2021

with a hard and blunt object cannot be ruled out. As for

injury number 6 it was opined that it caused

subarachanoid hemorrhage of the brain, by which the

victim could be rendered unconscious or semi-conscious.

The Doctor opined in consonance with Ext. P62 that the

person would have died due to antemortem drowning but the

injuries could also have 'added' (sic)-(aided?) the cause

of death.

19. Quite interestingly the Doctor deposed that a

weapon was produced by the I.O which looked like a

'kaikodali', opined to have possibly caused the injuries

on the head, by using its wooden handle. In fact, no hand

axe (kaikodali) was seized by the Police or produced

before Court. As argued by the learned Senior Counsel for

the defense, there was an axe recovered in the earlier

investigation which again was not produced before Court.

The learned ASG would point out that PW1, the maid in the

Convent had spoken of a hand-axe. We again went to the

deposition of PW11 and find her categorical statement to

be that 'there was no hand-axe' and 'there was an axe

lying on the side of the kitchen'. Obviously the Crl.Appeal Nos.42/2021 &64/2021

testimony is not to the effect that a hand-axe, available

in the kitchen was missing; but that there was NO hand-

axe in the premises. When a weapon is shown to the

Doctor, as possible of being used to commit the crime, we

should assume that it was seized from the scene of

occurrence or recovered on the same being pointed out by

the accused or otherwise; both of which circumstance is

not available in this case. It would have sufficed to

note the injuries having been caused by a hard object or

weapon; which is often the case in which no offending

weapon is seized or recovered. PW49 the I.O, also speaks

of the allegation in the remand report, initially made,

of the deceased having been hit on the back of the head

with an axe. In the next remand application the

description was altered to a hand axe. He does not offer

any explanation with regard to the hand-axe shown to the

Doctor as deposed by the Doctor.

20. Credible sustenance to the theory of ante-

mortem injuries having been caused by the accused, before

the body was dumped into the well, is garnered by the ASG

from PW31. PW31 is another expert who ruled out suicide Crl.Appeal Nos.42/2021 &64/2021

and opined that injuries 1, 2 & 6 could be caused by the

butt of a small axe, the first two being lacerated wounds

and the last a contusion; which together were capable of

causing death. He also opined that the death in the

instant case was caused by a combination of drowning an

injuries. In cross examination he was confronted with

Ext.D23 communication authored by him, which we have

perused. After perusing the postmortem report issued by

PW33, the letter from one Dr. G.R Bhasker; both received

from Dr.B.Umadathan, PW31 has detailed his observations

in seven pages and given his opinion in the last page.

His opinion was that the postmortem appearances are quite

consistent with drowning, the injuries noted on the body

minor, and not sufficient or even likely to cause death;

which could also be caused in the course of a fall into

the well. Injuries Nos.1, 2 & 6 could alternatively be

caused in the process of location and retrieval of the

body. It was also opined that the medical findings make

it difficult to definitely categorize the death as

accidental, suicidal or homicidal. He admitted that it

was his opinion, but that he was fooled, admitting the Crl.Appeal Nos.42/2021 &64/2021

authorship. On his being queried about his opinion in the

admitted document that the injuries 1, 2 & 6 did not

result in a skull injury or increased intracranial

tension and that those were not major injuries, which

could cause coma or death; he answered that it was a one

sided opinion, without any truth in it. According to the

said document, admittedly authored by the witness, the

conclusion after perusing the documents of the above

case, was that the evidence on record shows that it is a

case of typical well drowning. However he responded that

he had made the observation only to help a lawyer,

cutting at the root of his credibility. He proclaimed

vehemently that his tongue would not lie, specifically

gesturing to that appendage, but again explained it to be

a one-sided opinion made by him, which leads to an

inference that his pen may give one-sided opinions; that

too, not necessarily truthful. We find no reason to place

any reliance on his evidence.

21. The nail marks seen on the neck by the

photographer, PW7 is another aspect heavily relied on by

the trial Court; which even the Doctor who conducted Crl.Appeal Nos.42/2021 &64/2021

post-mortem failed to notice or report. The trial Court

laboured on the absence of the negatives, to find it

inconsequential, without realizing that even the

photographs were not produced. The photographs produced

as Ext. P27, are said to be that of the Convent, by the

defence; not controverted by the learned ASG, who was

assisted by the I.O, before this Court. We also have

summoned the photographs, which were send by the trial

Court on the Whatsapp through the Registrar General of

this Court, which on perusal indicates those to be merely

of the Convent and not of the body. PW7 hence had not

produced any photographs of the body and it was his

unsubstantiated deposition that was relied on in contrast

to the testimony of the Doctor based on the post-mortem

report. 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.

22. We do not dwell on the circumstance of lack of

explanation or the bizarre ones, of suicide given by the

accused since that can only form a link in the chain of

circumstances and cannot solely lead to a conviction. On Crl.Appeal Nos.42/2021 &64/2021

a prima facie look at the evidence as pointed out by the

defense, 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 accused shall be released on

the following conditions.

(i) The petitioners/ accused shall be released on

bail on execution of a bond for Rs.5,00,000/-

     (Rupees      five    lakhs      only)          each    with    two    solvent

     sureties,         each   for        the         like    amount       to   the

     satisfaction of the trial court;

    (ii)          If   the    conviction             and    sentence      of   the

petitioners/appellants is upheld or even modified,

the time during which they are so released shall be

excluded in computing the term of their sentence as

provided in Section 389(4) Cr.PC.

(iii) They shall not indulge in any other crime.

(iv) For the first six months after release, the

petitioners shall report before the S.H.O concerned Crl.Appeal Nos.42/2021 &64/2021

on every Saturday at 11 a.m. and thereafter on every

Second Saturday.

(v) The petitioners shall not leave the State,

other than with the permission of this Court.

Sd/-