New Delhi: Inconsistent statements, the complainant’s continued association with the accused even after the alleged assaults, and the existence of a rival group in the congregation — these are some of the reasons underlined by the additional sessions judge of Kottayam division, Kerala, while acquitting Franco Mulikkal, the former bishop of the Jalandhar Diocese, in a rape case dating back to 2018.
Mulikkal was accused by a Kerala nun of raping her 13 times between 2014 and September 2016, when he was the bishop of the Jalandhar Diocese. The complainant is a member of the Missionaries of Jesus, a diocesan congregation under the Jalandhar Diocese.
In a 289-page verdict delivered Friday, Additional Sessions Judge G. Gopkakumar declared Mulikkal not guilty. One of the points raised by the judge was the delay in the FIR, which was filed on 28 June 2018.
The court said both the prosecution and the complainant had failed to explain the delay. The judge also held that the complainant could not be “categorised as a sterling witness” in view of her inconsistent statements. Apart from her testimony, he added, there was no corroborative evidence to prove the prosecution case.
“This is a case in which the grain and chaff are inextricably mixed up. It is impossible to separate the grain from the chaff. There are exaggerations and embellishments in the version of the victim,” the judge said.
“She has also made every attempt to hide certain facts. It is also evident that the victim was swayed under the influence of others who had other vested interests in the matter.”
While Mulakkal lauded the verdict Friday, saying “Praise the Lord”, the nuns supporting the complainant said they would file an appeal.
The complainant and the nuns supporting her stay in the Kuravilangad convent at Kottayam.
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Delay in filing complaint
The judgment dwells on the delay in the filing of the FIR and how it has impacted the investigation and prosecution in the case.
“As in any other crime, false accusations are on the rise in rape trials as well. Consensual sexual relationship sometimes take the shape of sexual violence, when the relationship takes a beating,” the judge said, giving reasons on why it was important to analyse the causes for the delay.
“Hence, it is all the more important to see whether there are any extraneous causes/reasons for setting the law into motion.”
The court also noted that while the prosecution alleged the incidents of sexual violence started in 2014 and ended on 23 September 2016, “the revelations in this regard started coming out by the end of 2016”.
This, the court said, was after the accused ordered an inquiry into a complaint lodged by the nun’s cousin, who alleged that the nun had had sex with her husband. This was done on 10 December 2016.
During the trial, the cousin claimed she had filed the complaint in anger, but could not explain its contents, including her allegation that her husband attempted suicide on account of his illicit relationship with the nun.
The court thus gave credence to the defence version, that the nun’s allegations were meant to retaliate against the disciplinary inquiry.
The judge observed that Mulakkal had no role in the complaint against the nun. From the evidence presented, the court also concluded that the complainant and her associate sisters who stayed at the convent where the alleged offence took place did not participate in its day-to-day activities.
“These developments points towards indiscipline, non co-operation and lack of mutual respect among the members of the congregation,” ruled the bench, dismissing the complainant’s claim that the disciplinary proceedings were “acts of vengeance, for not yielding to the sexual desires of the accused”.
The complainant’s “inconsistent versions at different points of time to different persons” also led the court to question her credibility.
One such inconsistency was related to her “grievance”, which even the “police failed to explain”.
“There is no consistency in the statement of the victim. The grievance projected by her to her companion sisters was that the accused was taking retaliatory steps for not yielding to his sexual desires, whereas her version before the court was that she was forced to do sexual intercourse with the accused on 13 occasions including fingering on the first occasion,” the court said.
The court also noted that, during her medical exam, she did not tell the doctor about the alleged penile penetration or forceful sexual intercourse. There was no explanation offered by the complainant for this omission, the court said.
In her first information statement, the court said, there was no mention of penile penetration; only of fingering and pressure to have oral sex. In her additional statement to the police, however, the complainant levelled charges of penile penetration against the accused.
On the finding that the complainant’s hymen was found torn, the judge weighed in on the defence’s arguments that she had indulged in sexual intercourse with her cousin’s husband, and that “from the mere fact that the victim’s hymen was found torn, penile penetration or forceful sexual intercourse cannot be inferred”.
On the discrepancy in her statement, the court referred to the “possibility to cover her sexual relationship” with her cousin’s husband.
In her disclosures to witnesses, the judge said, the complainant never shared details about forced sexual assault. The versions that have emerged reveal she claimed she “might be compelled to share bed with the accused”.
Even the statement of the two witnesses, who according to police were present at the convent when the first two alleged incidents of rape occurred, showed they had no direct knowledge about them. One of them admitted she had only hearsay knowledge about the incident.
“They did not have even the slightest hint of the abuse, until they heard about the same through the media, that too after 4 years,” the court said.
The witness whom the nun had apparently first informed about the alleged sexual abuse by the bishop also did not support the prosecution version.
The prosecution also failed to prove that the accused was of a “bad character” and had misbehaved with other nuns. The defence, meanwhile, was able to establish that the bishop was a popular priest in the community.
The court also noted that the complainant and the accused exchanged mails and had close interactions with each other on the days the alleged sexual violence took place.
“She had travelled long distance with the accused in his car and had attended many functions on almost all days, next to the days of the alleged forceful sexual violence,” the bench observed, adding: “She was the chief adviser of the bishop in all appointments…”
It took into account the mails that were exchanged between them on the first two days of the alleged assault and noted: “The language used in the mails are neither formal nor official. These emails definitely give an insight into the relationship between the accused and the victim. The picture of a tyrannical, or vengeful person is not revealed from these emails.”
Lapses by police
During the trial, it was brought to the court’s notice that the nun had in her statement omitted one of the 13 dates on which she was allegedly raped. When asked how the date was included in the chargesheet, the investigating officer informed the court he did so on a phone call by the complainant.
The judge found this statement “bewildering” and also noted that the police had failed to gather evidence to verify the allegations.
Police were pulled up for not producing the mobile phone of the complainant as well as witnesses to establish the charges that Mulakkal used to send obscene messages to the victim. The prosecution told the court that the complainant had abandoned her phone and SIM card, which were later sold to a scrap dealer and, therefore, could not be recovered.
Although the police had approached the mobile company with a request to retrieve the data, particularly the messages sent by the accused to the complainant, the firm replied the required information is not available.
The court also noted the police’s failure to conduct a scientific analysis of the laptop, which the nun had used to type and e-mail her complaints against Mulakkal. Police had claimed in court that the hard disk had got damaged.
“Worst is the case of the laptop,” the court said, as the prosecution produced the “damaged” hard disk.
The judge observed that the laptop was reportedly sent for service for the hard disk almost three months after the FIR was registered and, even then, the police chose not to recover the machine for their probe.
Infighting within congregation
According to the defence, the complainant had filed her complaint at the instance of a rival group of priests.
The court accepted this contention, after examining the prosecution witnesses, who revealed a longstanding factional feud in the congregation.
“…There was evidence to show that the accused had many enemies within the church and all these circumstances showed that everything was not fair inside the congregation,” the court said.
The judge went on to say it was “evident that the prosecutrix was swayed under the influence of others who had other vested interest in the matter”.
“The in-fight and rivalry and group fights of the nuns, and the desire for power, position and control over the congregation is evident from the demand placed by prosecutrix (before inquiry commission) and her supporting nuns who were ready to settle the matter if their demands for a separate region under the diocese of Bihar is accepted by the church,” the court said.
(Edited by Sunanda Ranjan)
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Source: The Print