Bishop Franco Mulakkal: Another Judicial Blunder?

Analysis

The Additional Sessions Court of Kottayam recently acquitted Bishop Franco Mulakkal in the Nun Rape Case. Bishop Franco was the head of the Jalandhar diocese of the Catholic Church.

The nun claimed that she was under duress when the Bishop raped her on 13 occasions at the missionaries of Jesus convent in Kottayam between 2014 and 2016, but her claim was considered inconsistent due to inadequate evidence by the prosecution. 

As per the judgment, the court applied the principle “falsus in uno, falsus in omnibus” which means “false in one thing, false in everything”. 

In the same context, The Honorable Supreme Court in the case Ranbir & Ors v. State of Punjab stated that “Even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of the court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material in particular would not ruin it from the beginning to end”.

However, in the Bishop’s Case, the Additional Sessions Court discredited the victim’s evidence by stating that it was inconsistent and unbelievable on some counts. The court observed that “…when it is not feasible to separate truth from falsehood, when grain and chaff are inextricably mixed up, the only available course is to discard the evidence in toto”. 

Using the case Jayaseelan v. State of Tamil Nadu as an example, the judgment states that “where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto”.

This statement from the obiter dicta was neither referred to nor considered in the Bishop case judgement.

What we feel is that does the process of separating the grain and chaff in the present case amount to the reconstruction of an absolutely new case which might lead the court to discard the evidence in toto? 

The court frowned upon the improvement made by the victim in her statement and the inadequate amount of evidence presented by the prosecution which was used to prove the guilt of the accused.

The court gave a lot of weightage to the fact that the prosecution was not able to produce the mobile and the laptop of the victim which could have been hard evidence to prove the claims of the nun that the Bishop was indeed sending obscene messages to her.

The main reason why the court rejected the victim’s testimony is that she did not raise the allegations of rape (penile penetration) to either the doctor or in her First Information Statement (FIS). In addition, her statement was considered poor due to deviations and exaggerations. 

The well-settled principle which could’ve been considered here is that an FIR is not an encyclopedia of facts and it is not necessary that it must disclose all the facts and details relating to the alleged offence.

More importantly, the victim’s First Information Statement,  alleged that the Bishop inserted fingers in her private parts and this alone is an ingredient that constitutes the offence of rape under Section 375 of the IPC. Unfortunately, the Court did not look into the issue from this perspective and placed considerable weight on the fact that the victim had not expressly mentioned “penile penetration” in her complaints.

The trial court discredited the testimonies of the witnesses who corroborated the facts before the court that the victim had disclosed the instances of sexual assault forced on the victim by the Bishop. The court also discarded the testimony of a nun who testified that the Bishop had inappropriately touched her.

This testimony should’ve tipped the case in favour of the nun proving the Bishop’s bad character but the disposal of this testimony made the character justification of the accused irrelevant. 

What surprises us the most about this judgment is that the court mentioned as well as highlighted an alleged affair of the victim with her cousin’s husband. The court also discussed at length the friendly relations between the victim and the accused. According to Section 53A of the Indian Evidence Act, 1872 for rape cases the character and past sexual experiences of the woman are irrelevant.

The court went right ahead and violated this section by openly discussing the nun’s character in the court and the same was mentioned in the judgment as well.

Another important issue that needs attention is that the Bishop was accused of many charges including one under Section 376C of the IPC, which deals with criminalising non-consensual sexual intercourse by a person in authority. While the court made the finding that the accused was in a position of authority over the victim, they still did not analyze the issue from the perspective of abuse of authority by the accused.

Conclusion

As per the law, a sole testimony of the victim of a rape case is considered sufficient evidence for conviction unless and until the defence can establish serious inconsistencies in it. In the present case, even if the inconsistency is omitted, the offence under Section 376 IPC stands. 

The court stated that the in-fight, rivalry, group fights, and desire for power, position and control over the congregation were apparent from the statements of the witnesses. However, the court did not appreciate the fact that there was no reconstruction of an absolutely new case to discard the evidence in toto.

This judgement would send a wrong message to society, and may potentially result in survivors deterring from approaching the courts against men occupying powerful positions.