The Sessions Court Kottayam, Kerala on Friday acquitted Former Bishop Franco Mulakkal of rape charges. A Kerala nun who was the mother superior of St. Francis Home, Kuravilangadu had accused the bishop of committing rape on her 13 times on several occasions.
Additional Sessions Judge Mr Gopakumar G. pronounced his verdict in 289 pages long judgment.
The bishop was charged under Sections 342, 376(2)(k), 376(2)(n), 376C(a), 377 and 506(II) of IPC by the Kuravilangadu Police Station, Kerala.
The Complainant-Victim was represented by SPP Mr Githesh J. Babu and Counsel Mr John S. Ralph while the bishop-accused was represented by Counsel M/s. B. Raman Pillai & Associate and Counsel Mr C.S. Ajayan before the Court.
Arguments advanced by the Prosecution
The SPP argued before the Court that, as in all cases of sexual violence, it is the testimony of the victim which is of paramount importance. It was pleaded that each and every incident spoken by PW1 – Victim was supported by the testimony of other witnesses who were present along with her at the relevant time.
Further, it was contended that PW1's evidence would prove that she was victimised and demoted from mother superior-ship and later transferred to another convent from the day she started resisting the sexual advances of the accused. The medical reports of the victim also corroborated the testimony of the victim.
Also, it was argued that even after PW1 lost her maidenhead, the hierarchical norms of the congregation forced her to travel with her predator and share seat with him in many functions, that too on the very next day after the sexual violence, which made her situation much worse than an ordinary woman.
The Complainant contended that she was restrained by the societal dogmas and the fear of being ostracized, which prevented her from disclosing her ordeal to her near relatives and companion sisters. She was also reluctant to open up even in her first information statement and also to the doctor, argued the SPP.
Arguments advanced by the Defence
The Defence argued that the victim had no consistent version as her testimony in FIS was contrary to her deposition in Court.
Further, it was argued that PW1 did not disclose the entire incident to PW3 and PW4 instead she informed them that she would be forced to share the bed with the bishop and not that she was raped by the bishop.
Additionally, the Counsel contended that much crucial evidence was suppressed by the Prosecution. The mobile phone used by the victim was not produced in the Court which would have proved the vulgar and sexually coloured messages allegedly sent by the accused.
It was argued that PW1 could not be considered as a sterling witness and that she had given inconsistent and mutually contradictory versions before various authorities. Also, there was a long delay in reporting the matter which remained unexplained.
Analysis of the Court
- Inconsistencies in the disclosure
The Court noted that there was no consistency in the disclosure made by the victim to her companion sisters and also to the various authorities of the Latin church related to the real nature of the abuse and harassment meted out by the accused.
The Court also held that in view of the long delay, the corroborative value of those disclosures is minimal.
"As regards the disclosure made to others, they were never told that the victim was raped. On the other hand PW1's version was that she might be compelled to share bed with the accused. Multiple incidents of rape were not revealed in any of the complaints preferred, the Court noted.
The Court held that there were inconsistent versions of PW1 at different points in time to different persons which posed questions on her credibility.
- Flaws in the Investigation
The Court observed that apart from the defects/laches in the investigation, PW1 did not disclose in any of her previous statements that she was raped on 15.01.2015. The Court noted that the Investigation Officer also did not take any pains to record the statement of the victim with respect to the incident that occurred on 15.01.2015.
- Inconsistency in PW1's statement and history narrated to Doctor
The Court noted that when PW1 had no issues to drafting a complaint with the help of her companion sisters wherein she disclosed that rape was committed her explanation that she could not reveal about penile penetration in their presence could not be believed. Thus, her explanation was beyond comprehension.
Further, the Court held that non-disclosure of penile penetration by the victim was an innocent omission, however, the medical examination report revealed that the victim had failed to disclose the same to the doctor as well. Hence, the Court drew out a conclusion that the victim never raised any complaint about penile penetration either to the police or the doctor.
- Ruptured Hymen
The Court held that it was true that the hymen of the victim was completely torn. However, the defence had an explanation for the same. It had contended that PW1 had an illicit relationship with her cousin's-PW16 husband CW17. In this context, the Court noted –
"Even if it is assumed that the complaint was a false complaint, from the mere fact that the victim's hymen was found torn, penile penetration or forceful sexual intercourse by the accused cannot be inferred."
- Missing Mobile Phone & Laptop of Victim
The Court noted that Prosecution had failed to produce the most important evidence that was her mobile phone on which the accused allegedly used to send her obscene messages.
The Bench held that since the very beginning PW1 complained that the accused used to send her obscene messages on her mobile phone.
It was further held by the Court, "Prosecution has failed to produce the mobile phones of PW1, PW16 and CW17, though the entire case is built around some obscene messages sent by the accused to the phone of PW1 and the message forwarded by PW1 to the phone of PW16."
The Court added that when it came to the production of mobile phone to which the messages were sent, the Prosecution had a strange explanation to offer.
"According to the prosecution after issuing Ext.P4 dispensation letter, PW1 abandoned her phone and SIM Card, and sent it to her house, along with her other articles. The phone and the SIM card were later sold to a scrap dealer, which could not be recovered," the Bench held.
"…when both PW1 and PW7 consistently states that PW1 did not go to her house after issuing Ext.P4 dispensation letter, PW1's explanation that she packed all her materials including the mobile phone and SIM card and sent it back to her home does not appear to be true," the Court noted.
The Court also held that the explanation offered by PW1 and prosecution was highly artificial and unbelievable.
The Court held that worst was the case of the laptop. In this context, the Bench noted –
"Prosecution has produced MO1 Hard disc and has claimed that the hard disc of the laptop got damaged and hence the materials stored in the laptop could not be retrieved."
"Thus by a strange coincidence of events, the digital evidence has not come before court, which would have corroborated the version of PW1," added the Court.
- Relationship between the accused and victim after the incident
The Court noted that the emails produced by the Defence sent by the victim to the accused to prove that the relationship between the two was friendly even after the alleged incident of sexual violence.
The Court opined that the language used in the emails definitely gave an insight into the relationship between the accused and victim.
The Court observed that the accused and victim had cordial and friendly relations with each other even after the alleged repeated incidents of rape.
"In the said circumstances these journeys and close interaction with the accused definitely undermines the prosecution case, the Court held.
- Faction Feud in the Church
The Court noted that the accused had many enemies in the church as the Defence had contended that a group of priests were against accused and it was at their instance and influence that PW1 and her companion sisters had levelled false allegations against the accused.
In this context, the Court held –
"Thus it is established that PW1 has included many hearsay allegations in the complaint given to PW18. All these circumstances show that everything was not fair inside the congregation."
The Court further observed, "In the said circumstances, the claim of the victim that she was raped on 13 occasions under duress cannot be taken reliance on the basis of her solitary testimony. There is no consistency in the statement of the victim."
"Prosecution has failed to give proper explanation for the inconsistent version," the Court held.
The Court pronounced its verdict that the accused was not guilty of the aforementioned offences punishable under Sections 376(2)(k), 376(2)(n), 342, 377, 376-C, 354 and 506(ii) of IPC and was set free.