Bishop Franco Mulakkal: Ten reasons why court acquitted him of rape charges

A Kerala court on Friday acquitted former Bishop of the Jalandhar Diocese, Franco Mulakkal, accused of repeatedly raping a Nun in Kerala [State of Kerala v. Bishop Franco Mulakkal]..Additional Sessions Judge, G Gopakumar Kottayam, delivered the highly awaited verdict..The verdict which runs into 289 pages said that there was no evidence against the bishop except the testimony of the victim.The testimony of the victim, the Court said, was inconsistent and were riddled with variations posing questions on her credibility.The entire case was built around some obscene messages sent by the accused to the phone of the victim but the mobile phones of the victim and that prosecution witness to whom the victim forwarded the messages from the accused were not produced, the Court noted.According to the Court, the allegations were an outcome of factional feud within the church due to which Franco had rivals, as well as in-fighting among the sisters within the congregation and the desire of power and position of the complainant/ prosecutrix over the congregation..Below are the grounds on which the Court based its acquittal:.The Court said that though prosecution alleged that the incidents of sexual violence started in the year 2014 and ended on September 23, 2016, the revelations in this regard started coming out, by the end of 2016.“Prior to that on November 13, 2016, PW16 had submitted Ext.D50 complaint to the congregation. Subsequently, on December 10, 2016, accused had issued Ext.P93 order to commence an enquiry into the complaint. As per Ext.P19 Sec.164 statement, the first disclosure from the side of PW1 about the sexual desires of the accused also came on December 2016,” the Court noted.It further said that various subsequent events/ communications also did not speak about rape or sexual harassment but was instead about the other grievances against Franco..The Court held that the sexual allegations against the accused started coming, after the initiation of disciplinary proceedings against the prosecutrix on the basis of the complaint preferred by Prosecution Witness 16, who was the prosecutrix’s cousin.Certain serious allegations were levelled against the prosecutrix though the accused or the mother general were not at fault for ordering an enquiry into the complaint by PW 16, the Court held..The Court noted that the letters written by the prosecutrix and her companion sisters would prove that they had issues with one Sister Tincy, the new Mother General.A report of a three-member committee said that mudslinging was going on among the members of congregation.“Evidence of PW22 shows that PW1 and her associate sisters were staying the convent like separate group and were not participating in the day-to-day activities of the convent. These developments points towards indiscipline, non-cooperation and lack of mutual respect among the members of the congregation,” the Court said.Thus, the Court held that the evidence on record will not prove that the measures against accused were acts of vengeance, for not yielding to the sexual desires of the accused.“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 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..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.Kerala court .The defence had contended that a rival group of priests were against the accused and that it was at their instance and influence that complainant nun and her companion sisters levelled false allegations against the accused.The Court in this regard noted that evidence of prosecution witness 2 (PW 2) showed that the longstanding factional feud has also played its part in the events that happened after the registration of the case.“PW9 has also admitted that when the accused took charge as the Bishop there was a protest from the part of the devotees and that he was shown black flag. The defence contends that the protest was organised by his rival faction,” the Court noted.Thus, there was evidence to show that accused had many enemies within the church and all these circumstances showed that everything was not fair inside the congregation, the Court concluded.“It is also evident that the prosecutrix was swayed under the influence of others who had other vested interest in the matter,” the Court ruled..Prosecutrix was swayed under the influence of others who had other vested interest in the matterKerala court .This perhaps might have been the most crucial aspect of the judgment which turned the tide against the prosecutrix.The Court noted that in her initial disclosures, the allegation was that the accused was forcing her to share bed with him and not of rape.“Her revelation to PWs 3 and 4 during December 2016 was that Bishop is forcing her to share bed with him. She did not disclose to them that she was subjected to sexual violence on 13 occasions. She did not mention in dispensation letter dated May 26, 2017 that she was subjected to sexual violence. Her version to PW6, Bishop Kurain Valiyakandathil was that accused is taking retaliatory measures for not sharing bed with him and not that she was raped or sexually abused,” the judgment noted.In the letter sent to Cardinal Marc on May 14, 2018, her version was that the accused abused her for the first time on May 5, 2014. It was also stated in the said letter that the abuse continued for several times. But it is not specified that she was raped on 13 occasions.Regarding the specific allegation of rape too, there were inconsistencies, the Court opined.The following aspects were also noted by the Court in this regard:- In Ext.P20 complaint given to the District Police Chief her version is that an offence under Sec.376 IPC was committed against her. No other detail was stated.- Her original version before PW21 the doctor was that there is no history of penetrative sex. Subsequently that entry was struck off. Even in the other portion of the history narrated to PW21, there is no allegation of penile penetration.- In the first information statement (FIS), she did not disclose about penile penetration. Her version was that the accused inserted his fingers into her vagina and that he attempted to thrust his sexual- In her additional statement and Sec.164 statement, her version was that she was subjected to forcible sexual intercourse including penile penetration on 12 occasions and that there was only fingering on the first occasion.These inconsistent versions at different point of time to different persons, poses questions on her credibility, the Court concluded..One of the most important aspects which weighed heavily against the prosecution was that it could not produce the mobile phone to which the accused allegedly sent obscene messages.The Court said that prosecutrix was complaining right from the beginning that the accused used to send obscene messages to her phone.However, 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.In this regard, the Court also noted that the explanation offered by the prosecution is strange.“According to the prosecution after issuing 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. In this connection the evidence,” the Court noted.The prosecution also contended that though the investigation officer made an attempt to trace out the details of the phone calls, and had also submitted an application before Judicial First Class Magistrate Court, Pala, mobile companies replied that the required information was not available.The Court, however, noted that explanation of phone being sold to scrap dealer was contradicted by subsequent events and other evidence.The case with regard to the laptop to which the messages are said to have been transferred is worse, the Court said."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," the Court observed.Thus, by a strange coincidence of events, the digital evidence which would have corroborated the version of the prosecutrix, has not come before court, the judge said..Digital evidence which could have corroborated testimony of prosecutrix was not produced.Kerala court.Two witnesses, prosecution witness (PW3)and prosecution witness 4 (PW4) never raised any complaints of sexual harassment against the accused.The complaint of PW3 was that she was not permitted to write her exams.Grievance of PW4 was that she was transferred to St. Biyani Convent at Gurdaspur and when she reached there in July 2017 to assume charge, she was informed that she has been relegated to an ordinary sister.PW4 further testified that the accused threatened them to out them from the convent.However, the Court noted that in the letters written by PW4 to her father and to the Mother General and councilors, she had stated that she had no idea as to what had happened between the prosecutrix and the accused.“Thus, even if it is assumed that the measures taken against PWs 3 and 4, were retaliatory in nature, there is no conclusive evidence to prove that the retaliatory measures had any connection with the case projected by the prosecution that, the accused was taking revenge against PW3 and PW4 for supporting PW1,” the Court said..The Court said that it was true that the hymen of the prosecutrix was found torn in her medical examination. But defence contended that there was a complaint against the prosecutrix, by her own cousin that she had indulged in sexual intercourse with her husband.Even if it is assumed that the complaint against the prosecutrix by her cousin was a false complaint, from the mere fact that the prosecutrix’s hymen was found torn, penile penetration or forceful sexual intercourse by accused cannot be inferred, the Court said..The Court noted that emails and photographs showed that the prosecutrix had close interactions with the accused on the days immediately after the alleged sexual violence.“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. PW8 who had travelled with the prosecutrix during some of those occasions had no hint, either from her interaction with the accused or from her interaction with PW8 and others, about the sexual violence,” the Court stated.Further, enquiry report of the three-member committee showed that the prosecutrix was maintaining a very close relationship with the accused.“She was the chief adviser of the Bishop in all appointments and sometimes those appointments were made overruling the decision of the general council,” the judge further noted..The Court noted that the prosecution did not produce evidence of bad character of the accused which could be relevant to the present case.“It is true that PW8 has deposed that the accused had once put his hands over her shoulder and pulled her towards him. But as already pointed out, the behaviour of the accused to PW8 is not a relevant issue in this trial,” the judgment said..[Read Judgment]