Allowed

K.T.Michael IPS v. Dysp, Central Bureau of Investigation

Kerala HC9 Apr 2019Crl.Rev.Pet/171/2018

Case brief

AI extract

What is this about?

Revision against a Special Judge's order summoning a former Superintendent of Police as an additional fourth accused under section 201 IPC over the disappearance of material objects in a 1992 death case. The High Court held the material amounted only to strong suspicion, that the conclusions rested on surmises, and set aside the summons.

What did the court decide?

The order dated 22/1/2018, to the extent summoning the revision petitioner in Crl.R.P.No.171/2018 to face the trial, is set aside.

K.T.Michael IPS Vs Dysp, Central Bureau of… — Murder and Culpable Homicide | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941

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Crl.Rev.Pet.No. 171 of 2018

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AGAINST THE ORDER/JUDGMENT IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM DATED 22-01-2018

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REVISION PETITIONER/ADDITIONAL ACCUSED:

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K.T.MICHAEL IPS, S/O THOMAS, KARIVELIL HOUSE, PARAMPUZHA P.O. KOTTAYAM-32

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BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL SRI.GEORGE A.CHERIAN SRI.LEO LUKOSE SRI.PAUL JACOB (P) SRI.RONY JOSE

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RESPONDENTS/PETITIONER & RESPONDENTS:

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1 DYSP, CENTRAL BUREAU OF INVESTIGATION, ACB COCHIN

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2 FR.THOMAS KOTTOOR, S/O K.T.MATHEW, CHANCELLOR, BISHOP HOUSE,KOTTAYAM

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3 FR. JOSE POOTHRIKKAYIL S/O SRI.KORAH, PRINCIPAL, ST.PIUS XTH COLLEGE, RAJAPURAM KASARAGODE DISTRICT, KERALA- 671 532

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CRL.R.P.NO.171/2018 & Others.

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4 SISTER SEPHY, ST.JOSEPH'S GENERALATE,SH MOUNT, KOTTAYAM, KERALA(KANGRATHUMOOTHY HOUSE,KURUMULLOOR KOTTAYAM686 632)

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ADDL.R5; STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA) (IS IMPLEADED AS ADDITIONAL FIFTH RESPONDENT AS PER ORDER DATED 27/2/2018 IN CRL.M.A. NO.1239/2018 IN CRL.RP. NO.171/2018)

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BY ADVS. JOMON PUTHENPURACKAL(PARTY-IN-PERSON)

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OTHER PRESENT:

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SRI.SASTHAMANGALAM S.AJITHKUMAR SPL.PP FOR C.B.I

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.03.2019, ALONG WITH Crl.Rev.Pet.610/2018, Crl.Rev.Pet.614/2018, THE COURT ON 9/4/2019 PASSED THE FOLLOWING:

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CRL.R.P.NO.171/2018 & Others.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941

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Crl.Rev.Pet.No. 610 of 2018

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AGAINST THE ORDER/JUDGMENT IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM

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REVISION PETITIONER/ACCUSED NO.1:

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REV.DR.THOMAS KOTTOOR, AGED 70, S/O. K.T. MATHEW (LATE), KOTTOOR BHAVAN, KIDANGOOR, KOTTAYAM.

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BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.CHACKO SIMON SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT

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RESPONDENT/COMPLAINANT/ACCUSED NO. 2 TO 4 :

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1 CBI, COCHIN, ACB, COCHIN, REPRESENTED BY THE STANDING COUNSEL CBI, HIGH COURT OF KERALA.

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2 FATHER JOSE POOTHRIKAYIL, S/O. KORAH, PRINCIPAL, ST. PIOUS XTH COLLEGE, RAJAPURAM, KASARAGODE DISTRICT, KERALA.

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3 SISTER SEPHY,

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CRL.R.P.NO.171/2018 & Others.

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ST. JOSEPH'S GENERALATE, SH MOUNT, KOTTAYAM, KERALA, (KANGRATHUMOOTHY HOUSE, KURUMULLOOR, KOTTAYAM).

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4 K. T. MICHAEL IPS, S/O. THOMAS, KARIVELIL HOUSE, PARAMPUZHA P.O., KOTTAYAM-32.

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SRI.SASTHAMANGALAM S.AJITHKUMAR SPL.PP FOR C.B.I

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.09.2018, ALONG WITH Crl.Rev.Pet.614/2018, Crl.Rev.Pet.171/2018, THE COURT ON 9/4/2019 PASSED THE FOLLOWING:

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CRL.R.P.NO.171/2018 & Others.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941

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Crl.Rev.Pet.No. 614 of 2018

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AGAINST THE ORDER/JUDGMENT IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM DATED 22-01-2018

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REVISION PETITIONER/ACCUSED NO. 3:

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SR.SEPHY, ST.JOSEPH GENERALATE,S.H.MOUNT, KOTTAYAM, KERALA, (KANGARATHUMOOTHY HOUSE,KURUMULLOOR, KOTTAYAM).

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BY ADVS. SRI.SOJAN MICHEAL SRI.GEORGIE JOHNY SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S.

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RESPONDENT/COMPLAINANT:

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CENTRAL BUREAU OF INVESTIGATION ACB, COCHIN, REPRESENTED BY ITS STANDING COUNSEL, CBI, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 31.

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RI.SASTHAMANGALAM S.AJITHKUMAR SPL.PP FOR C.B.I

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.09.2019, ALONG WITH Crl.Rev.Pet.610/2018, Crl.Rev.Pet.171/2018, THE COURT ON 9/4/2019 PASSED THE FOLLOWING:

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CRL.R.P.NO.171/2018 & Others.

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O R D E R

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[ Crl.Rev.Pet 171/2018,Crl.Rev.Pet.610/2018, Crl.Rev.Pet.614/2018 ]

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These revisions arise from SC No.1114/2011 of the court of Special Judge(SPE/CBI),Thiruvananthapuram for offences punishable under sections 302,201,449 IPC read with section 34 IPC .

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The brief facts of the case is as follows;

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On 27/3/1992 morning, Sister Abhaya, a nun, aged 21 years who was an inmate of Pius Xth Convent hostel, Kottayam, was found dead and her body was recovered from a well situated on the rear side of the convent, where she had lived with other nuns and students. In the ground floor room near the kitchen, her chappals were found. Her head veil was found tucked in between the outer door. FIS was laid on the same day by the mother superior of the convent and Crime No. 187/1992 of Kottayam West Police station was registered under section 174 Cr.P.C,for unnatural death. Inquest was conducted by V.V.Augustine, the ASI of the above police station, who was in charge of the Sub Inspector of Police. Autopsy was conducted on the body by the police surgeon attached to the Medical College, Kottayam and it was opined to be a case of death by drowning. Five personal belongings of the deceased were seized at the time of inquest. Three other items which were a plastic bottle, a pair of ladies chappals and one white head veil found in the scene

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of occurrence were also seized. Eight items so seized, were produced before the SDM court on 1-4-1992. Investigation was continued by the local police. CBCID took over the investigation on 12/4/1992 pursuant to the order of DGP dated 7/4/1992 and the crime was re -registered as Crime No.142/1992. Investigation was conducted by K.Samuel, DYSP of CBCID, and was supervised by the Superintendent of police, Sri.K.T. Michael, who is the revision petitioner in Crl.R.P.No.171/2018. Personal diary of sister Abhaya was recovered from her room on 15/4/1992 and was produced as a material object before the SDM court on 6/7/1992. On 30/1/1993, the Crime Branch filed a report stating it to be a case of suicidal death by drowning. In the meanwhile, considering the request made by the father of Sister Abhaya and demand made by the public, the matter was entrusted to CBI. Varghese P.Thomas, Dy.S.P.(CBI) took over the investigation on 29/3/1995. Investigation continued for long time and the then investigating officer of CBI filed a final report on 5/12/1996. It was reported that CBI could not confirm whether death was suicidal or homicidal. Hence, it was requested that the case may be closed as untraced one. The learned Chief Judicial Magistrate, after considering the final report, by his order dated 20/3/1997, rejected the final report and directed the CBI to conduct further investigation.

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After further investigation, 2^nd final report was laid on 12/7/1999. CBI took up the same stand that it was a case of homicidal death but accused could not be traced. The Chief Judicial

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Magistrate, by his order dated 23/6/2000 rejected the report as unsatisfactory and directed the CBI to conduct further investigation. In the light of above, investigation was transferred from CBI at New Delhi to CBI, Cochin Branch. Yet another report was filed after investigation on 25/8/2005, again requesting the court to close the case as untraced one. This was also rejected by the Chief Judicial Magistrate by order dated 21/8/2006. Thereafter, the CBI continued the further investigation and the final report was filed by the then Dy.S.P. Nandakumar Menon on 17/7/2009, arraying a nun who had stayed in the above convent during the relevant time and two priests, as accused. They were charged with offences under sections 302,201,449 read with section 34 IPC. It was alleged that the third accused nun was found in the company of the first and second accused during early hours on 27/3/1992, near the kitchen, by sister Abhaya and to silence her, they committed her murder and dropped the body into the well. V.V.Augustine, the initial investigating officer, was accused of having manipulated the evidence. Though he was arrayed as an accused, since he had died on 25/11/2008, he was not charge sheeted.

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After final report was filed by the CBI, Sri.Jomon Puthanpurackal filed Crl.M.P.No.39/2012 to order further investigation under section 173(8) of Cr.P.C. in respect of causing of disappearance of material evidence and also the persons involved in that offence. Crux of the allegation was that eight material objects which were recovered, at the time of

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inquest and a personal diary which was later recovered from the room of sister Abhaya, and submitted at the SDM office were destroyed by the officials of the SDM after obtaining an order from the SDM on a reasoning that they had covered its period of retention. According to Sri. Jomon Puthanpurackal, infact, CBI investigation was pending. It was alleged that material objects which were crucial for the investigation were purposefully destroyed to screen the accused. The above Crl.M.P. was dismissed by the CBI Special Judge, which was challenged by Sri. Jomon Puthanpurackal in Crl.R.P. No.123/2013 before this Court.

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While so, another application was filed as Crl.M.P.No.104/2012 by Sri.K.T.Michel who was the Superintendent of Crime Branch, under whom the investigation into sister Abaya's death was conducted for some time. He sought for further investigation under section 173(8) Cr.P.C. His contention was that, the material objects which were subject matter of Crl.M.P.39/2012, were destroyed by the order of the SDM, while petition filed by the father of sister Abhaya was pending. CBI had taken over the investigation which was entrusted to Dy.S.P. Varghese P.Thomas. It was alleged that the above investigating officer had not taken possession of the material objects from the SDM office and this permitted it to be

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destroyed. Allegation of Sri.K.T.Michael was that material objects were destroyed pursuant to a conspiracy between the officers of the SDM, Sri.Jomon Puthenpurackal and Sri. Varghese P.Thomas. It was alleged that they were liable to be proceeded under sections 120B, 201, 166 IPC read with section 34 IPC. The above petition was also dismissed. This was challenged by K.T.Michael by filing Crl.R.P.No.265/2013.

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Crl.R.P. No.123/2013 was allowed by this Court by order dated 19/12/2013. The court below was directed to return the final report for further investigation. The question as to whether there was a willful destruction of material objects with the intention of causing disappearance of evidence or screening the offenders from legal punishment was directed to be further investigated without disturbing the final report implicating accused 1 to 3. Investigation was conducted and thereafter supplementary report was filed holding that there was no material to conclude that Sri. K.T.Michael was responsible for the destruction of the material objects. It was held that there was laches on the part of an official of the SDM's office in destroying the evidence .

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It seems that pendency of Crl.R.P.No.265/2013 was not brought to the notice of Hon'ble Judge before whom Crl.R.P.No.123/2013 was pending. Crl.R.P.No.265/2013 was

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disposed of by order dated 19/3/2014 clarifying that further investigation ordered in Crl.R.P.No.123/2013 was not confined to any particular officers taking note of the undertaking of CBI that role of every police officer and officers of SDM will be investigated into. It was undertaken that no officers will be excluded from the purview of the investigation.

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Accordingly, further investigation was conducted. A supplementary final report was accordingly filed on 27/6/2015 holding that K.Samuel, the then Dy.S.P. was responsible for concealment of the material objects. It was found by the CBI that though 8 material objects were purported to have been returned by the Crime Branch to the SDM office, in fact, it was not returned to the to the SDM office. It was alleged that, Samuel kept it with him and thereafter they have not seen the light of the day. Since K.Samuel had died in the meanwhile, charge could not be laid against him.

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Disputing the findings of the CBI, Jomon Puthanparakal filed CMP No.135/2015 before the trial court alleging that there were sufficient evidence against K.T.Michael and requested that he may be arrayed as accused. K.T.Michael filed CMP No.155/2016 raising objections to the report and requesting that cognizance may be taken against Sri.Varghese P.Thomas, Dy.S.P., CBI, Kochi Unit.

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The learned Special Judge by order dated 22/1/2018 framed the question as to whether K.T.Michael, K.Samuel and

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V.V.Augustine had conspired to destroy the evidence to scream the offenders. The court, on an evaluation of materials, held that circumstances connect each other like a complete chain pointing to the role of K.T.Michael in conspiracy with K.Samuel and V.V.Augustine and other accused in destroying the material objects for the purpose of covering up the role of real culprits and to save them from the clutches of law. It was held that K.T.Michael was the master mind behind the destruction of material objects. The learned Special Judge, by the impugned order dated 22/1/2018 held that there were prima facie materials for proceeding under section 201 IPC against K.T.Michael and took cognizance against him. Summons was issued to him as fourth accused. This is challenged by the fourth accused in Crl.R.P.No.171/2018. Accused 1 and 3, challenges the finding of the court below to the extent of the finding that they have connived with fourth accused in the destruction of the evidence.

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Mr.Jomon Puthanparakkal had filed impleading petition requesting to get himself impleaded as additional respondent and to give him an opportunity of being heard. Since he was a party to Crl.R.P.No.265/2013, had filed Crl.M.P.No.39/2012 before the court below and he claimed to have taken several steps to bring sister Abhaya case investigation to its logical conclusion, by initiating several legal proceedings, he was permitted to be heard without formally bringing him on record.

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CRL.R.P.NO.171/2018 & Others.

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Heard each of the learned senior counsel for the revision petitioners, learned Special counsel for the CBI, the learned Public Prosecutor and Sri.Jomon Puthenpurakel in person.

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The crux of the conclusion arrived at by the CBI was that, material objects which were seized by the local police and produced before the SDM were taken by the Crime Branch CID from the SDM office on 18/4/1992 for the purpose of investigation. The stand of the investigation was that thereafter 8 material objects and the personal diary were returned on 6/7/1992 to the SDM office, along with applications purporting to return the material objects. It was counter signed by the then senior Superintendent at the SDM office. Personal diary was also returned along with another application dated 6/7/1992. Thereafter, in the routine course of activities of the SDM office, all the files and the materials objects retained in the SDM office, which has exceeded the retention period of three years, were ordered to be destroyed by the SDM and accordingly, material objects in the present case were also purported to have been destroyed. As per the records, all the material objects produced in this case were destroyed. However, CBI in the course of further investigation concluded that the personal diary of the sister Abhaya which alone was returned to the SDM office and was destroyed. All other material objects did not reach the SDM office. It was concluded by the CBI that, it were retained by K.Samuel.

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The specific conclusion arrived at by the CBI in its supplementary final report was that, 8 material objects did not reach

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the SDM office. Records in the office of the Crime Branch show that, after taking over of the investigation by K.Samuel, he got 8 material objects returned from the SDM office on 18/4/1992. Strangely, in the case diary, neither the receipt of material objects nor its purported return are seen referred to. None of the witnesses were shown the above materials objects and questioned. According to the CBI, all the material objects were kept in the personal custody of K.Samuel. It was purported to have been returned to SDM Office on 6/7/1992 along with an application dated 6/7/1992 According to CBI, the personal diary of sister Abhaya was returned on 6/7/1992 along with a petition. It was received by the concerned clerk, the Superintendent and after entering it in the corresponding register, taken on record. Though on the same day, 8 other MOS were also allegedly returned along with another petition, none of the records or registers of the SDM's office evidence the receipt of the petition or MOS by that office. However, the above Petition alone is seen on the records. It does not bear endorsement of any officer, except the initials of the senior superintendent. As per the procedure, that petition ought to have been received and processed by the clerk and corresponding entries made in the register. The Senior Superintendent stated that her signature might have been obtained by fraud. However, the CBI, on the basis of the materials gathered in the course of further investigation, concluded that there was no conclusive evidence to show that the above 8 material objects were returned to the SDM office. Consequently it could not be believed

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that those were destroyed there. Those material objects could not be located or seized. Details regarding its possession and return were within the exclusive knowledge of Samuel, who has since expired.

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On an evaluation of the materials, it was concluded that Samuel is solely responsible for the missing of 8 material objects and materials were available to prosecute him under section 201 IPC. Since he was no more, he could not be prosecuted. It was also concluded that, there was no evidence against K.T. Michael. However, CBI held that K.N.Muraleedharan, who was tapal clerk/clerk in charge of the material objects of the SDM office during the relevant time, was responsible for the destruction of the relevant file even when other proceedings were pending in sister Abhaya's case. It was also found that before the process of destruction of the old files were undertaken in the SDM office, father of sister Abhaya had submitted a petition dated 15/2/1993 requesting to intervene in the matter and to order investigation into the suspicious and mysterious death of his daughter. The petition was processed and put up to the SDM, who ordered notice to be issued to the petitioner. On 16/4/1993, the file was put up to SDM who noted that party had appeared. It was informed that matter was entrusted to CBI. Hence, party was directed to appear before CJM, in case of further complaint. The application was ordered to be closed by the SDM, since the CBI had already taken over the investigation. CBI noted that the SDM, senior Superintendent and

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LDC who processed the files were hence aware of the CBI investigation. According to the office of the SDM, that proceeding was kept in a separate file and when the file for destruction of the various records in the SDM office including the files relating to sister Abhaya case which had survived its period of detention as per the rules, were ordered to be destroyed, the senior superintendent and the LDC who had dealt with the file did not notice about the pendency of the above application and also that CBI was investigating into the matter. He had noted that final report was filed, death was reported to be due to drowning and requested for destruction of the records and the material objects. This was forwarded by the then Superintendent and approved by the SDM. Nobody had noticed at that time that representation of the father of the sister Abhaya was pending and the matter was taken over by the CBI. After the destruction of the records, in the concerned registers entries were made stating that all the material objects in sister Abhaya's case were destroyed. However, the CBI concluded that it was a negligent act of Muraleedharan and there was nothing to suggest that it was deliberate.

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On an evaluation of the above materials, learned Sessions judge agreed with the CBI that there was no evidence to show that Muraleedharan had deliberately destroyed the file. There was nothing to show that senior superintendent of the then SDM office was guilty of concealing the evidence or willful destruction of material objects. The Special Judge also agreed with the conclusions

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arrived at by the CBI that Muraleedharan had not made any deliberate attempt to destroy the evidence. Negligently, he took the order from the SDM and got the file destroyed. According to the CBI, investigation revealed that the entire process of destruction of files and MO's in this case was a negligent act and not a deliberate omission on the part of above staff or SDM, Kottayam. It was also found that the only MO that was present in the SDM office was the personal diary of Sister Abaya . It was also concluded that there was no mensrea on the part of Muraleedharan. The Court below agreed with this conclusion.

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CBI had also found that there were manipulations in the inquest report. It was alleged that there were definite materials on record to show that when the body of sister Abhaya was recovered from the well, it did not have undergarments. The finding of the CBI was that undergarments were seized later and later added in the inquest report which was manipulated by ASI V.V.Augustine.

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Regarding the role of K.T.Michael, repelling the allegation of Sri.Jomon Puthenpurackal, CBI Judge referred to the evidence regarding the presence of K.T.Michael at the site when the body of sister Abhaya was recovered from the well and on later days, as spoken by Achamma and Dr.Umadatthan. one Scaria had stated that, on that day, he had seen the jeep of K.T.Michael in the compound of the convent. CBI had concluded that though there was material to show the presence of K.T.Michael on the spot on 3.3.1992 and 2.7.1992, but sufficient evidence to prove his complicity in the

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destruction of evidence could not be gathered. It was also concluded that there was nothing in the CD of Samuel to indicate that he had shown MOS to K.T.Michael or handed it over to him. It was also held that though some police officers have stated that K.T.Michael had closed door meetings with K.Samuel, it was too insufficient evidence to prove the allegation of complicity of Michael conclusively. It was also held that there was no material to show that V.V.Augustine had manipulated the inquest report and committed manipulations at the behest of K.T.Michal. It was reasoned that V.V.Augustine was not under the direct control of K.T.Michael at the time of initial investigation by V.V.Augusine. It was also concluded that there was also no materal to establish the allegations raised by K.T.Michael against Sri.Varghese P.Thomas, Dy.S.P. CBI and against Sri.Jomon. Ultimately, CBI had concluded that, though the circumstances strongly suggest and cast suspicious on the role of K.T.Michael in the offence, due to mutually contradictory statements, non cooperation of certain material witnesses, including denial of consent for narco analysis test, lapse of 22 years after incident, which rendered most of the evidences and witnesses passing into oblivion, as well as the fact that chain of events forming the incriminating circumstance not fully forming chain without missing links, it was felt that evidence may not be adequate to charge Michael in the crime. CBI had also found that, second inquest report was prepared later in the evening in which it is stated that undergarments were stated to have been recovered and were

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included in the list of material objects. These discrepancies were pointed out by the CBI and were attributed to V.V.Augustine, the ASI who had done the initial investigation and prepared the inquest report. CBI concluded that there were lapses on the part of V.V.Augustine which went unnoticed, since investigation was transferred to CBCID.

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The learned Session Judge accepted the conclusion of CBI that there was nothing to show that, Sri.Varghese P.Thomas, Sri.Jomon, Sri.S.G.K.Kishore and Sri. Muraleedharan had any role in the destruction of evidence. However, the court below proceeded to hold that K.T. Michael, the then superintendent of police had played special role in destruction of evidence and had colluded with Samuel in the destruction of material objects, which, according to CBI, were not returned to the SDM's office. Few reasons were also given by the court for such conclusion . According to the special judge, on the date of the incident, immediately after reporting that sister Abhaya was missing, two nuns were deputed to the house of Michael, who was the then Superintendent of Crime Branch, Kottayam. He was apprised about the missing of the nun. After the body was retrieved, he had visited the convent and enquired about the death of sister Abhaya. It was also reported that on subsequent dates also, Micheal had visited the convent, as stated by the witnesses. The court concluded that this showed that convent authorities were reposing good confidence on K.T.Michael. The court also found that witnesses have reported that Samuel used to

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have closed door meetings with Michael and used to discuss about Abhaya's death. Yet another circumstance relied on by the learned Sessions Judge was that CW27, photographer who had taken photographs of dead body of sister Abhaya was directed by Michael to hand over the photographs to the police and not to the convent authorities. The learned Special Judge noted that The CBI in its final report at page 28 had also noted that V.V.Augustine who was the then ASI, who prepared the inquest report had disclosed to the CBI that inquest report was manipulated and the undergarments of sister Abhaya included in the inquest report, as per the direction of Michael. The court further relied on the conclusion of CBI that there were laches on the part of Samuel and Augustine and proceeded to hold that it could have been committed only under the instructions of Michael. Learned Sessions Judge, in his conclusion held that Samuel could have done so only with connivance of his superior Michael. Accordingly, Michael was ordered to be arrayed as the fourth accused.

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Challenging the above conclusions, the learned senior counsel for the above revision petitioner contended that there was absolutely no reliable material before the court below to array the revision petitioner as accused. It was contended that the learned Special Judge took a totally different view from that of conclusion arrived at by the CBI in relation to the revision petitioner. It was contended that conclusion of the court below were based on assumptions and surmises. It was contended that on the same

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materials gathered by the investigating agency, a different conclusion was arrived at by the court below, based on mere surmises, which cannot be a substitute for legally required evidence. It was also contended that he could have been arrayed as accused, if at all under section 319 Cr.P.C., which stage had not reached.

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It is pertinent to note that as per the records, 8 material objects were taken from the SDM office by Samuel after he took over investigation. The diary was separately recovered by Samuel on a search conducted by him in the house of sister Abhaya. It is confirmed that in the crime branch CID case diary, there are no entries regarding the receipt of the material objects by the crime branch nor its return. As per the records, on 6/7/1992, the personal diary was returned to the office of the SDM. A separate application was filed and was taken to the office of the SDM, sealed by the clerk in charge of the material objects, endorsed by the senior superintendent, who approved it and thereafter it was kept in the store room. Corresponding entries were also made on the records. However, file discloses that yet another petition of the investigating officer informing that 8 material objects which were earlier got returned from the SDM office, were returned through one K.Sankaran, the constable. According to the investigating agency, this petition bears the signature of the senior superintendent only. As per the approved practice followed in SDM office, every petition will be endorsed by the tapal clerk, who was also in charge of the

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material objects, thereafter marked to the senior superintendent and then forwarded to the SDM's office. In this case, signature of K.Muraleedharan, the clerk was not there. None of the registers and records reflected the receipt of the above petitions or the material objects. Endorsements were also absent in the tapal register regarding the receipt of such petition or the above materials. Entries regarding the receipt of the material objects are also not seen. Sankaran, who was proposed to carry the material objects to the SDM office had stated to the CBI that he had not gone to the office of the SDM on that day nor had taken the material objects to the SDM's office. The police constables on duty on that day in the office of the Crime Branch have also stated that they have not seen Sankaran proceeding to the SDM office. Regarding the signature of the senior superintendent found on the petition, that officer had given a version that her signature might have been obtained clandestinely by somebody, without her knowledge. It was confirmed by her that since it was not endorsed by the tapal clerk, it had not been brought to her, as per the normal practice. However, the records and registers in the SDM office indicate that all the material objects were destructed. Regarding it, the finding of the CBI was that it was for the first time after long period, that the process of destruction of records was undertaken in the SDM office. Nobody was aware of the exact procedure and, hence destruction was done carelessly. Immediately after the destruction of the materials, entries were made in the register that records have been

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destroyed. On the basis of entire materials, CBI had concluded that, 8 material objects did not reach the office of the SDM, though only a petition seen in the files of SDM office indicated that it was sent to that office.

¶128

However, this conclusion arrived at by the CBI and confirmed by the special judge seems to be not fully free from doubt for two reasons. It is true that no corresponding entries are available on the records and registers of the SDM office that the MOS were returned or that the above petition was received. However, it is confirmed that on the same day personal diary was produced along with another application. Definitely, somebody from Crime Branch office had gone to the SDM's office, carrying the diary. It seems that CBI did not investigate as to who had taken diary to the SDM office on that day. The petition relating to the return of 8 material objects refers to K.Sankaran as the carrier of MOS. CBI enquired only whether Sankaran had gone to SDM's office on that day. Sankaran asserted that he had not gone to SDM's office on that day. Other witnesses also asserted that they have not seen Sankaran proceeding to that office on that day. It is difficult to assume that from the same office, two different officers will proceed to the same destination, to submit different sets of material objects. The police officer who had taken diary along with the application for producing it, could have been the best person to throw light whether he was entrusted with above 8 material objects and also whether any other officer than Sankaran had taken the eight material objects to the

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SDM office on that day or at least how the disputed petition reached SDM office. It seems that no attempts were made in the above line. Further it is to be noted that the successor in the office of SDM, Ms.Rachana Shah had given a reply stating that all the material objects in the SDM office in relation to Abhaya case were destroyed after its retention period. It seems that even at that time, the CBCID had given report to the court that material objects were destroyed. Evidently, the conclusion of the CBI that material objects in fact had not reached the SDM office on that day or any day thereafter does not appear to be only possible conclusion. In the above circumstance, to arrive at a conclusion that material objects had not reached the SDM office contrary to the records available, few presumptions would have to be made.

¶132

It is also pertinent to note that, to adjudicate that Samuel was responsible for the destruction of the materials, prosecution proceeded on the conclusion that the material objects. though purported to have been sent to the SDM office, did not reach the SDM office and it was retained by Samuel. On the other hand, as mentioned above, the materials gathered by the investigating agency do not completely rule out the possibility of materials having reached the SDM office on the relevant day. In other words, the conclusion of the CBI that material objects had not reached the SDM office, though the application was counter signed by the senior superintendent, is

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not the only conclusion that can be arrived at on the basis of the materials gathered.

¶136

The court below proceeded to hold that the Michael had close contact with the convent. It is on record that two sisters along with the neighbours had gone to Michael's house on that day and informed about the missing of the sister Abhaya. They were directed to search in the compound of the convent and also report to the police. Complaint was laid thereafter at 9.15 a.m.. V.V.Augustine went to the convent on the basis of the information given by Michael. The stand taken by Michael is that he had not visited the convent on that day. CW 41 Achamma, who is employed in the convent stated that Michael had visited the convent on 27/3/1992 before noon and Dr. Uma Dathan, the forensic expert examined as CW29 has stated that when he had visited the convent earlier, on both occasions Michael was there. Scaria also stated that he had seen the jeep of the Michael in the convent. The prima facie conclusion arrived at by the special judge to the extent that Michael was present on few occasions in the convent even before the Crime Branch had taken over investigation seems to be justified in the above circumstances.

¶137

On the date of the incident, one photographer named Varghese Chacko was engaged by the convent authorities to take photographs of the dead body. One of the sisters in the convent had requested the photographer to hand over the photograph to her and not to pass it to the media. On a subsequent day, one policeman went to the photographer and demanded the photos and negatives.

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However, the owner of the studio informed that photographs would be given only to the sisters. Michael is stated to have called the owner of the studio and directed him to hand over the photographs to the police. Court below treated this as another situation to presume that the Michael has interfered in the investigation without any authority.

¶141

There was an allegation that though 20 photographs were handed over, some went missing thereafter. However, it is clear that there was some dispute regarding the handing over of the photographs. Even if there are some disputes regarding the person to whom photos were to be handed over, the direction given by Michael to hand over the photos to the police, does not appear to be prima facie misplaced in the absence of anything to establish malice on the side of Michael, since that ought to have been the correct instruction regarding a vital document in relation to a Crime, which was under investigation. The court below hence held that, K.T.Michal had interfered even at the first stage of investigation.

¶142

Another conclusion arrived at by the court below was that Samuel maintained close contact with Michael and was acting under his directions. According to the court below, some police personnel have given statement that Dy.S.P.Samuel used to have closed door meetings with Michael. Sankaran, the head constable had given a statement that Samuel used to have closed door meeting with Michael and he never overheard them. It was also mentioned that K.Samuel kept the material objects in the almirah in his room.

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Further the court below proceeded to conclude that if V.V.Augustine had done any manipulation, he would not have had the courage to do so, except under the support of K.T.Michael who was involved in the issue even from the first day of the incident. The court proceeded to conclude that, materials on record are sufficient to hold that there was meeting of minds between K.T.Michael, K.Samuel and Augustine and the accused in the case.

¶146

Evidently, the conclusions arrived at by the court below referred in the above two paragraphs appear to be mainly based on surmises alone. It cannot be ignored that KT Michael was the supervising officer of Samuel. The version that Samuel used to have closed door meeting with Michael and that he used to discuss about the case with him only, by itself is not sufficient to cast doubt, unless there are materials to show that they behaved strangely. It is quite natural that any police officer investigating into a sensational case may discuss the matter with the superior officer and they cannot be expected to discuss openly. The same material were considered by CBI and opined that they were not sufficient to proceed against Michael.

¶147

Evidently, the conclusion of the court below that there was meeting of the minds and V.V.Augustine mustered courage for manipulation from Michael is not supported by any direct material. Clearly with the available materials, one has to proceed on the realms of several surmises to reach the above conclusion.

¶148

According to the CBI, V.V.Augustine initially used to

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conduct the investigation in a proper manner. When he reached the spot, it was found that scene of occurrence was completely intermingled. At the time of visit of V.V.Augustine, normal activities were going on in the kitchen. The material objects which were found to be scattered in the scene of occurrence, when it was first seen had been restored to its position. In the course of questioning by CBI, V.V.Augustine is stated to have admitted that he had found injuries on the body of the victim and added that he did not incorporate the the actual scenario in the inquest report. According to him, he did so, to satisfy K.T.Michael, According to the CBI, V.V.Augustine had definite knowledge regarding the records. However, V.V.Augustine was found dead on 25/11/2008 and his version could not be confirmed thereafter. According to Scaria, who had assisted Augustine in preparing the inquest report, fresh inquest report was prepared in the evening of the date of incident at the police station. Experts have opined that signatures in the inquest report were forged. There are some materials to indicate that the second inquest report was prepared in the evening of that day. It has also come out on evidence that sister Abhaya was not wearing the undergarments at that time.However, later undergarments were introduced as material object in the inquest report.

¶152

There are consistent materials to doubt that at the instance of V.V.Augustine, manipulations were done. However, his version that it was done at the instance of Michael, as recorded by

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the CBI, is yet to be confirmed. However, crucial link, who is V.V.Augustine, is no more. Only corroborative materials are now available regarding the above version of V.V.Augustine which has to stand the test of confirmation by other witnesses. Hence, it may not be justified at this stage to rely on the evidence recorded by the CBI alone to array K.T.Michael as accused. Hence the question whether on the basis of the above version recorded by the CBI, Michael can be proceeded against depends on how far reliance can be placed on the version of late Augustine and how far CBI is able to establish the version of Augustine that he did the manipulation at the evidence of K.T.Michael.

¶155

34 . CBI on the basis of the materials gathered by it in the course of investigation, had concluded that even though circumstances strongly suggest and suspect the role of K.T.Micheal in the offence, due to various reasons. I feel that the reasons given by the learned Special Judge is not adequate, at present, to proceed against Michael. On the basis of the same set of materials, relied on by CBI,learned Special Judge by a process of evaluation of materials, based few presumptions arrived at certain inferences and concluded that there were materials to conclude that Michael had committed offence,for which he is liable to be tried along with other accused. Evidently, the court below has not referred to any other evidence which was not considered by the CBI. It was by the

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process of deduction, assumptions and reasoning that the court arrived at such a conclusion.

¶159

Re-capitulation of the facts mentioned above, leads to the conclusion that most of the reasoning projected by the learned Special Judge to charge Michael prima facie liable to be summoned, border on surmises and do not strictly satisfy the required quality of materials. It may be true that, the entire materials lead to a strong suspicion regarding the role of K.T.Michael, His involvement in the investigation even before the Crime Branch took over the investigation appears to be available from the materials on record at this stage. But that is not sufficient at this stage to infer from the materials that he has committed offence and liable to be summoned to face the trial. It is true that one of the main link which the CBI wanted to project was version of V.V.Augustine that he had manipulated the inquest report and introduced material objects and did not state the complete details regarding the injuries on the body of the victim. However, that crucial witness is no more in existence. Essentially, the question whether Michael can also be roped in along with other accused to a certain extent, depends on the extent to which the prosecution is able to establish the version of V.V.Augustine from the available materials, which are at this stage are only in the form of

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corroborative materials.

¶163

At this stage,the material against K.T.Michael is in the realm of strong suspicion. Evidently, the requisite quality of materials that is sufficient to summon fourth accused for the offences alleged does not appear from the materials on record. Hence, I am inclined to hold that at this stage, the jurisdiction exercised by the learned Special Judge appears to be premature and not liable to be confirmed. However, if sufficient materials are brought on record, in the course of enquiry or trial, the court will be free to exercise jurisdiction against any person under section 319 of Cr.P.C. Hence, I feel that conclusion arrived at by the court below is in excess of its jurisdiction and is liable to be interfered in exercise of the revisional jurisdiction. Accordingly, Crl.R.P.No.171/2018 is allowed. Since the impugned order is set aside, Crl.R.P.Nos. 610/2018 and 614/2018 are liable to be closed.

¶164

Crl.R.P.No.171/2018 is allowed. The order dated 22/1/2018 to the extent summoning the revision petitioner in Crl.R.P.No.171/2018 to face the trial is set aside.

Sd/-

SUNIL THOMAS

JUDGE

dpk

K.T.Michael IPS v. Dysp, Central Bureau of Investigation

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K.T.Michael IPS v. Dysp, Central Bureau of Investigation

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