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