Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944 CRL.REV.PET NO. 89 OF 2018 AGAINST THE ORDER IN CMP 809/2016 OF CHIEF JUDL.MAGISTRATE COURT, ERNAKULAM REVISION PETITIONER/COMPLAINANT: BINNY DEVASIA AGED 55 YEARS,W/O.DEVASSIA,PEZHATHUMOOTTIL HOUSE,CHETTUPUZHA.P.O,MANNIANKARA LANE, THRISSUR DISTRICT. BY ADVS.SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.S.M.PRASANTH SRI.T.RAMPRASAD UNNI RESPONDENTS/RESPONDENT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2 THE INSPECTOR OF POLICE CENTRAL BUREAU OF INVESTIGATION,SCB,THIRUVANANTHAPURAM-695001. BY ADV MANU S., ASG OF INDIA SUVIN R MENON-CGC ,SRI G SUDHEER-PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON 14.11.2022 DELIVERED THE FOLLOWING: -:2:-
O R D E R
Dated this the 14th day of November, 2022 A distressed mother of a 21-year-old nursing student who was found dead hanging in her hostel room is the revision petitioner.
2. Miss.Jeesamol P. Devasia was a 21-year-old girl born to
the revision petitioner and her husband Sri.Devasia. In the year 2003, Jeessamol joined the 3 year course on General Nursing and Midwifery at the School of Nursing run by San Joes Parish Hospital, Pavaratty. She was staying at the nursing school and hostel building located in the same compound of the San Joes Parish Hospital. Her room was on the northern side of the third floor of the hostel. It was alleged that she was found engaged in copying during the model examination held by the nursing school on 5/12/2005, consequent to which the invigilator expelled her and asked to continue the exam only after obtaining permission from the Principal. After some time, she was found hanging on a
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fan, in her room, at the hostel. Her friends, other students and staff attempted to rescue her and brought her to the casualty of the hospital, but declared dead after 1½ hours. Consequently, Crime No.504/2005 was registered by Pavaratty Police Station as unnatural death. Subsequently, the crime was transferred to CBCID as per the orders of this court in WP(C) No.10032/2006
dated 10/10/2006 and reregistered the same as Crime No.339/CR/EKM/2006. While the case was under investigation by the CBCID, the parents and relatives of the deceased approached this court by filing WP(C) No. 7662/2013, praying to entrust the investigation to CBI. Accordingly, the investigation of the case was ordered to be taken up by the CBI. The CBI Special Branch, Thiruvananthapuram, took up the case and conducted the investigation. After a full-fledged investigation, the CBI submitted a detailed closure report at the Chief Judicial Magistrate Court (CBI Court) Ernakulam. The revision petitioner submitted a protest to the acceptance of the said report citing a variety of
reasons. The learned Magistrate, as per the order dated 13 th December 2017, dismissed the protest complaint u/s 203 of -:4:- Cr.P.C. accepting the closure report. The said order is under challenge in this revision petition.
3. I have heard Sri.K.Ramakumar, the learned senior counsel for the petitioner, Sri.G.Sudheer, the learned Public Prosecutor and Sri. Suvin R.Menon, the Central Government Counsel, appearing for CBI.
4. The learned Senior counsel for the petitioner,
Sri.K.Ramakumar submitted that the initial investigation was conducted by the local police as well as CBCID in a shabby manner, and various material facts to rule out suicide and to suggest that it was a case of homicide were not adverted to by the investigating agencies. The counsel further submitted that the subsequent investigation conducted by the CBI was just a face-saving measure, and they, too, did not advert to various flaws in the investigation highlighted by the petitioner and concluded that the death was due to suicide by hanging. The learned Senior counsel asserted that it was not a case of suicide but a case of homicide. The court below also committed illegality and impropriety in accepting the closure report submitted by the
-:5:- CBI and rejecting the protest complaint filed by the petitioner,
submitted the counsel. On the other hand, the learned Public Prosecutor Sri.G.Sudheer, as well as the Central Government Counsel appearing for CBI, Sri.Suvin R.Menon, submitted that the apprehension expressed by the petitioner is on the basis of mere surmises and thorough investigation conducted by the local police, CBCID and CBI thereafter confirmed that it was a case of suicide. It is further submitted that the investigation conducted was a foolproof one. The conclusion was based on medical and
scientific evidence. According to the Central Government Counsel, even the polygraph test of the suspect was undertaken. It is submitted that the court below rightly dismissed the protest complaint and accepted the closure report.
5. As stated already, the crime was initially registered by
the local police u/s 174 of Cr.P.C as unnatural death. Subsequently, the case was transferred to CBCID on the orders of this Court. Later, the parents and relatives of the deceased approached this court requesting to entrust the investigation to CBI and accordingly, the investigation was taken over by the CBI. -:6:- The petitioner pointed out the following doubtful circumstances to highlight his version that true facts were not unearthed by both the investigating agencies.
(a) It is alleged that Jeesamol was found engaged in copying during model examination
held by the Nursing School on 5.12.2005,
consequent to which the invigilator expelled her and asked to continue the exam only after obtaining permission from the Principal. The investigation agency has not found the answer sheet of Jeesamol. Smt.Linda stated that she had submitted the answer sheet, including that of Jeesamol to Fr. Paul Payyappilly. But the answer paper of Jeesamol is found missing. They have a suspicion about the explanation.
(b) The model exam was already over. As per
Nursing School Authorities, they conducted a remodel exam again on 5/12/2005. The parents think that this exam was a fabricated one. This story of examination is for establishing the copying incident, which is also fake.
(c) In the Postmortem report, it is stated that the
stomach contained 200 gms of partially digested food materials (rice). Rice is served in the hostel for supper or for the mid-day meal. From this, it -:7:- can be concluded that the death might have occurred at night after supper.
(d) The dress worn by Jeesamol was changed by
hospital authorities. They had put a Nighty, an under-skirt, and blue colour underwear on Jeesamol (as per the inquest report), and these clothes were not of Jeesamol.
(e) The hospital authorities had shifted Jeesa
from the place of occurrence before the arrival of her relatives and the police party. They also cleaned the room as well as the corridors of the hostel and destroyed the evidence.
(f) According to police and hospital authorities, after making wounds on her hand, Jeesamol committed suicide by hanging on the ceiling fan, which is not possible.
(g) They had not seen any symptoms of hanging on the body of Jeesamol. They were suspicious about the hanging.
(h) In the postmortem report, it is stated that the
neck structure and spinal cord are intact and hence suspicion on the theory of suicide. But in the chemical lab report, it is revealed that the vaginal swab and smear of Jeesamol contain spermatozoa. Semen was detected in underwear of Jeesa. The CBCID has not explained anything about it. -:8:-
(i) The blood group of Jeesamol is 'O+', but the Chemical Laboratory, Kakkanad detected 'B' group blood in MOs, which is not properly explained in the final report submitted by the CBI.
(j) The blood stains were found in the door of Tincymol's room which was adjacent to the room of Jeesamol. Blood drops were also found in the corridors. But all these were cleaned by hostel authorities.
6. Admittedly, the deceased was found hanging in her
hostel room in the morning hours on the fateful day. CBI, during the investigation, unearthed all the activities of the deceased from the early hours of that day till her death. The roommates of the deceased were Sibil, Princymol and Siji Abraham. Smt.Sibil gave the statement that on 5/12/2005 at around 3.00 a.m. in the morning, the deceased woke her up and asked her to study for the remodel examination, to which she replied negative and went back to sleep. All the roommates of the deceased gave the statement that none of the rooms on the third floor of the hostel, including their room, has latches to lock the room from inside. The investigation revealed that on 5/12/2005 at 5.30 hours, the deceased attended the morning mass at the church along with
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others and thereafter, she went to the mess at around 7.30 hours and had breakfast. The investigation further revealed that a remodel examination was conducted in the nursing school for the third-year students at 8.00 hours on 5/12/2005, and the deceased had attended this examination. Her friends and batch mates stated that they had seen the deceased preparing for the examination and found her sitting in the examination hall. The investigation further revealed from the statement of many witnesses that during the remodel examination, the deceased was expelled from the examination hall by the invigilator viz., Smt.Linda Varghese allegedly for copying in the examination. Smt.Linda Varghese stated that she had seen the deceased using a bunch of sheets written with some study material during the
examination, and she expelled the deceased from the examination hall and asked her to continue the examination only after meeting the Principal. The investigation further revealed that at around 9.30 hours, the deceased was seen standing in the corridor in front of the examination hall by a junior student viz., Soumya Sebastian and the cleaning staff viz., Usha. Smt.Usha
-:10:- noticed that the deceased, who was jovial otherwise, was looking sad at that time, and she did not say anything to her. Smt.Sheeba, who was a close friend of the deceased, stated that after attending the exam, she first went to the adjacent prayer hall in search of the deceased, and as the deceased was not
available there, she went to the mess hall and enquired with Smt.Jisna about the deceased. Smt. Jisna informed her that Soumya Sebastian had told her that the deceased had gone upstairs. Smt.Sheeba then proceeded to the room of the deceased on the third floor. She stated that when she reached there, the room of the deceased was closed from inside. As there were no latches on the door to lock from inside, the inmates used to put a cot close to the door to keep it closed. Smt.Sheeba pushed the door open and found the deceased hanging on the fan. She screamed and ran downstairs. As per the statement of Sheeba, the deceased was clad in the same churidar which she was wearing in the examination hall. Hearing the scream of Sheeba, other students and the tutor rushed to the room. They brought down the body of the deceased, removed the shawl tied
-:11:- to her neck and gave CPR as well as mouth-to-mouth respiration.
7. The petitioner suspects that somebody sexually
assaulted and murdered the deceased and thereafter tied her to the fan to make it appear that it was a case of hanging. The petitioner alleged that Father Paul Payyappilly is responsible for the death of the deceased. But, the sequence of events mentioned above, especially the fact that the room of the deceased was found closed from inside by putting across a cot to the door and that the alleged incident was taken place during morning hours when there were a lot of people in the hostel rule
out the theory of homicide projected by the prosecution. That apart, there is no evidence to show that there was struggle or force on the floor of the room where the deceased was found. The statement of the witnesses who reached the room would show that when the body of the deceased was removed from the hanging position, the body was warm, and the pulse was feeble. This fact suggests that the deceased had committed hanging minutes prior to Smt. Sheeba entered the room. There is also no evidence of a sexual assault on Jeesamol on 5/12/2005. The
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postmortem examination report, as well as oral evidence of Smt.Tincymol, who occupied the adjacent room, supports this fact. She stated that she was in the room during the time when the incident had happened, and she did not hear any sound of commotion in the corridor. The postmortem report confirmed that the death was due to hanging. It did not reveal any indication of the scuffle. A team of experts from CFSL, New Delhi, visited the scene of the crime for the reconstruction of the scene of the crime and to opine about the nature of hanging. They, based on the reconstruction of the scene of the crime and physical evidence available on record, opined that it appears to be a case of suicide by hanging.
8. As stated already, on the date of the incident at about
9.30 hours, the deceased was seen alive by Smt.Soumya Sebastian, Smt.Mini V.J and Smt.Usha on the corridor of the ground floor of the nursing school building. There is no evidence of her going out of the nursing school building, instead, she was seen going upstairs of the building where the hostel functions by Soumya Sebastian. No noise or commotion was noticed by any of
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the inmates on the third floor where her room is located. Within a short span of time, Smt.Sheeba found her hanging on the ceiling fan. The possibility of any person getting into the girls’ hostel, having around 60 inmates, that too without the notice of anyone, is very remote, and no evidence has come suggestive of the presence of any male member. There is only one access through the main stairs to the girls’ hostel. As there is only one entrance to the hostel, anybody who enters or reaches the hostel will be easily noticed. The time gap between the last seen alive and the first seen hanging is about 15-20 minutes. During this gap, rape, murder, and subsequent escape without being noticed by anyone
in the hostel during the daytime are quite impossible. The deceased, who was found in the violet colour churidar and shawl in the examination hall was found hanging on the shawl wearing the same churidar.
9. It is true that the blood drops/stains were found on the
verandah, in the bathroom, on the door and in the room by the inmates/staff of the hostel. During the investigation, Smt. Usha, the cleaning staff of the nursing school, stated that the corridor -:14:-
and the room were cleaned by her as per the direction of a nun of the hostel. The postmortem certificate revealed that there were incised wounds of skin deep on the left wrist and elbow of the deceased. Dr.Hitesh Sanker T.S, who conducted the autopsy, opined that it could be self-inflicted hesitate marks. The board of medical experts clarified that the possibility of injury being self- inflicted by a right-hand person is more since it is superficial and over areas of predilection. Dr.Krishnan, Associate Professor,
Department of Psychiatry, Medical College Hospital, Thiruvananthapuram opined that the incised wounds on the hands are not hesitational cut marks, but an attempt of suicide itself. No other injuries were noticed on the body of the deceased by any of the witnesses or during the inquest, or in the
postmortem certificate. As stated already, the inmates of the hostel noticed blood drops in the bathroom of Jeesamol. From these circumstances, the investigating agency concluded that the wounds found on the left wrist and elbow of the deceased could be construed as self-inflicted by the deceased and a sign of an aborted attempt before choosing another method.
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10. During the course of the investigation, the suspect,
Father Paul Payyappilly, who was the Vicar of San Joes Parish Church, Pavaratty and the Director of San Joes Parish Hospital and Nursing School at the time of the death of the deceased, was subjected to a polygraph test on 22/3/2013 and the examination report showed that he was non-deceptive with the relevant questions asked to him. Two other persons who had acquaintance with the deceased, Sri.Vinish and Dr.Shabeen Abbas, were also subjected to a polygraph test, and they were also found to be non-deceptive to the relevant questions.
11. During the course of the investigation, the
investigating agency made all efforts to find out whether the deceased had any illicit relationship with anybody, either with an insider of the hospital or an outsider, but the same could not yield any result. Smt.Elsi, who attended the deceased at the casualty of San Joes Parish Hospital, was examined to ascertain the points regarding sexual assault. She stated that she had changed the dress of the deceased to connect monitors and for unitary catheterisation. She further stated that the petticoat of the -:16:- deceased was cut for connecting monitors, and panties were removed for urinary catheterisation. She also stated that human excreta were present on the panties, and hence the vaginal area
was cleaned with betadine lotion and cotton before catheterisation. She asserted that there was no injury or redness in the vaginal area at that time. There appears to be no ambiguity in these actions and does not create any suspicion. Other witnesses who were present at the casualty during that time also stated that they had not seen any marks of sexual assault or seminal remnants on the vaginal area.
12. It is true that the examination conducted at RCEL,
Kakkanad detected semen and spermatozoa in the underwear of the deceased and 'B' group blood in the MOs. However, two experts Dr.Umadethan and Dr.Shirley Vasu asserted that the detection of spermatozoa by the chemical examiner at RCEL, Kakkanad, can be erroneous and suggests that if the circumstantial evidence is not in support of the findings given by the chemical lab, the possibility of false detection of spermatozoa is too high. The expert opinion and subsequent test results of -:17:- samples from other labs are suggestive that the chemical lab report detecting spermatozoa was a wrong detection. There is evidence in the form of documentary evidence from FSL, Thiruvananthapuram and CFSL, New Delhi to show that the blood stains detected on the dress material belonged to 'O' group. The detection of 'B' group blood by RCEL, Ernakulam can only be a wrong detection due to contamination or differences in techniques for blood group determination. The oral testimony of the examiners are also supportive of this fact.
13. All the facts stated above completely rule out the
possibility of the death being a homicide. On the other hand, it completely points to the fact that it is a case of suicide. The CBI has elaborately considered all the circumstances highlighted by the petitioner and concluded that it is a clear case of suicide. A detailed final report has been filed. The court below also meticulously considered the final report as well as the protest complaint and passed the impugned order accepting the report and dismissing the protest complaint. I find no illegality or impropriety in the said order. -:18:- The criminal revision petition fails and it is accordingly dismissed. Sd/- DR. KAUSER EDAPPAGATH JUDGE Rp