In a latest development, we saw how the Kerala Sessions Court of Kottayam Division in a recent 289-page judgment titled State of Kerala vs Bishop Franco Mulakkal in Sessions Case No. 457/2019 (Crime No.746/2018 of Kuravilangadu Police Station) (C.P. No. 15/2019 of J.F.C.M. Court - I, Pala) delivered as recently as on January 14, 2022 acquitted Roman Catholic Bishop Franco Mulakkal on charges of repeatedly raping a nun 13 times over three years in a convent between 2014 and 2016 during his visit to the convent when he was the Bishop of the Jalandhar diocese of the Roman Catholic Church under Sections 376(2)(k), 376(2)(n), 342, 377, 376C, 354, 506(ii) IPC (framed on 13.08.2020) saying that the victim's statement was inconsistent and police failed to provide evidence to back her claim.The nun is a member of the Missionaries of Jesus, a diocesan congregation under the Jalandhar Diocese. We saw how in this high profile case which shone a limelight on violence against women in religious institutions and that too against nuns, the Additional District and Sessions Judge G Gopakumar of the Additional District and Sessions Court in Kottayam acquitted erstwhile Bishop Franco Mulakkal of the Catholic Church in the nun rape case.

Truth be told, it must be mentioned here that a group of nuns of Kuravilangad Convent who have been standing with the nun in her fight for justice were on the verge of tears when they said they were yet to believe such a verdict came out from the court and they did not know what has happened. Sister Anupama who was the face of the nun's years long fight for justice said plainly that they would surely challenge the verdict in the higher court and take forward the fight of their hapless colleague. She also said that:
We will continue our stay in the convent and take forward our fight till our sister gets justice. Police and prosecution showed justice to us but we did not get the expected justice from the judiciary. The trial court refused to hear hapless wails of a victim who can't even speak loud.

To be sure, it must be mentioned here that the former Police Superintendent of Kottayam – S Harishankar, who supervised the investigation said that:
The verdict is unbelievable. It is wrong to say there is not enough evidence and we conducted the investigation most scientifically. We are really disappointed... The Public Prosecutor Jithesh Babu also said that:
The outcome is really shocking and we never expected this.

As we see, while extending support to the nun, the National Commission for Women (NCW) Chairperson – Rekha Sharma tweeted that:
Shocked at the judgment of Kerala Additional District and Session Court. The victim nun must go to High Court. NCW is with her in this fight for justice. It must be mentioned here that the rape case was registered in Kottayam on June 29, 2018 after the nun had alleged that she was subjected to sexual abuse by Mulakkal between 2014 and 2016. What also deserves mentioning here is that the Special Investigation Team which probed the case arrested the Bishop in September 2018 and charged him with wrongful confinement, rape and criminal intimidation.

Be it noted, the Judge in his judgment observes in para 389 that:
Now this court will analyse the solitary evidence of PW1 and see how far her solitary evidence can be taken reliance. PW1 has given contradictory versions to different persons at different point of time.

1. 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.
    
2. She did not mention in Ext.P4 dispensation letter dated 26.05.2017 that she was subjected to sexual violence.
    
3. 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.
    
4. In Ext.P8 letter given to PW18 Cardinal Mar George Alencherry her grievance was that she was unable to tolerate the dealings of Bishop directly and through phone calls and messages made with bad intention. Her grievance was that the accused used vulgar words with sexual tones in the messages sent to the sisters. In cross-examination she admitted that she had no direct knowledge about some of the allegations made in Ext.P8. She specifies in the letter that she cannot reveal the matter in detail and that she want to meet PW18 and discuss her struggles. Contrary to the claim of PW1, PW18 testified that apart from the grievances about the problems and harassment faced within the congregation, victim did not disclose to him that she had been abused sexually by the accused.
    
5. In Ext.P13 letter sent to Cardinal Marc on 14.05.2018, her version was that the accused abused her for the first time on 05.05.2014. 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.
    
6. 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.
    
7. In Ext.P1 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 organ into her mouth and that she was forced to hold his sexual organ. The explanation offered by the victim is that she had no trust in PW37, the woman police officer and that the statement was recorded in an unsecured environment. Both explanation have been proved as incorrect.
    
8. 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.
    
9. 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, pose questions on her credibility. The following circumstances also creates doubts on her version.
    
10. Exts.D10 series e-mails, Exts.D6 series and Exts.D11 series photographs and visuals in Ext.D7 DVD shows that she had close interactions with the accused on the days, next after the alleged sexual violence.
     
11. Entries in Ext.P34 chronicle shows that 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 victim 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 to which PW1 was subjected to on the previous nights.
     
12. Going by her testimony, after PW1 conveyed to the accused that she would not permit him to come to the convent. The accused never came to the convent. Even after reaching Kerala on January 24-01-2017, his message to the victim was that he is passing through Kuravilangadu. The version of PW1 will not go in tandem with the projected case of the prosecution that the accused was using all sorts of threats to make her yield to his sexual desires.
     
13. The messages claimed by PW1 to have been sent by the accused in response to her stand that she will not permit him to stay in the convent gives an insight into the nature of relationship between the accused and PW1. The message of the accused going by the Sec.164 statement of the victim was that 'with heavy heart I am joining with your decision'. 'I want to see you, I want to need you, call me'. No threat or intimidation or force is revealed from these messages.
     
14. 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.
     
15. Ext. P57 enquiry report of the three member committee shows that the victim was maintaining a very close relationship with the accused. She was the chief adviser of the Bishop in all appointments and some times those appointments were made overruling the decision of the general council.
     
16. It is proved form the evidence of PW1, PW16 and PW7 that the accused had no role in the complaint preferred by Jaya, the cousin of PW1, alleging that PW1 had illicit relationship with her husband. The enquiry ordered by accused on the complaint of Jaya, cannot be regarded as a retaliatory measure.
     
17. Though the prosecution has attempted to explain the delay ranging from four to two years, there is no satisfactory explanation of the delay. There are enough circumstances to prove that PW1 started complaining about the sexual abuse and sexual overtures of the accused, after the commencement of the enquiry ordered in the complaint of Jaya.
18. PW1 and her companion sisters were unhappy with the appointment of Sr. Tincy, as the mother superior of the convent. Ext D30(a) letter dtd. 17.02.2018 shows that PW1 had made complaints against Sr. Tincy, that she is not permitting her to use the common facilities provided to the sisters.
     
19. Ext. P57 report of the three member committee shows that the victim, her companion sisters and their family members shouted and abused at the committee members. There was also an attempt for physical assault. The report would also prove that there was infighting among the members of the convent. PW22's evidence would prove that PW1 and her companion sisters were staying in the convent as a separate group and was not participating in the day to day activities of the convent.
     
20. PW18 deposed that PW1 wanted to join Syro Malabar Church and he advised her that her request would be considered after she comes out of M.J. Congregation. This fact is admitted by PW1 as well.
     
21. The evidence of PW1, PW3, PW4 and PW22 proves that they have placed some demands before the church, including a demand that the convent shall be placed under the diocese of Bihar and that they were ready to settle all issues if their demands are met. The complaint was filed after their demand was rejected.
    
     

As a corollary, the Judge then holds in para 389 that:
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. 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. Prosecution has failed to give proper explanation for the inconsistent version. Of course, it is contended that initially the victim was reluctant to disclose to her companion sisters about the sexual abuse. But there is no explanation for the omissions made in Ext.P1 FIS and the history narrated to the doctor wherein also penile penetration was not disclosed. In fact her original version to the doctor as evident from Ext. X1(a) is that there is no history of penetrative sex. In view of the inconsistent version of the victim, this court is of the view that she cannot be categorised as a sterling witness as laid down in Deepu v. State (NCT of Delhi) (supra). PW1 cannot be categorised as a wholly reliable witness as well [see Kusti Mallaiah v. State of Andhra Pradesh (Supra)].

Furthermore, the Bench then observes in para 390 that:
Apart from the testimony of PW1 there is no corroborative evidence to prove the prosecution case. The police could not seize the mobile phone used by the victim which would have provided some input into the alleged vulgar messages sent by the accused. The explanation offered for the non production of the phone is thoroughly dissatisfactory. The laptop also was not subjected to scientific analysis, as it is claimed that the hard disk got damaged.

Going ahead, the Judge then mentions in para 391 that:
It is true that the hymen of the victim was found torn in her medical examination. But defence contends that there was a complaint against the victim, by her own cousin that she had indulged in sexual intercourse with her husband. 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 cannot be inferred [see Sasi v. State of Kerala (2019(3) KLT 561], particularly in the light of the history narrated to PW21, doctor that there was no history of penile penetration.

It is worth noting that the Judge then added in para 392 that:
As regards the complaint of Jaya, it is established from the evidence of the victim, her sister and PW16 that the accused had absolutely no role in the complaint. From the mere fact that the accused was instrumental in ordering an enquiry against the victim one cannot reach to a conclusion that the enquiry ordered by the accused was part of his retaliatory measure for not yielding to his sexual demands, on the 14th occasion. It is quite natural for a person at the helm of the affairs to order enquiry into a complaint, when serious allegations of inchastity are raised against a nun, that too by her own cousin. There were other circumstances as well to order such an enquiry since it is established that the husband of Jaya had stayed at the convent for five days under the pretext of attending Abhishekagni convention. Ext.P34 chronicle however will not prove that he attended the convention. Prosecution also failed to examine CW17 Ananthan who is a material witness on these aspects.

It cannot be glossed over that the Judge then specifies in para 393 that:
It is true that PW16 has deposed before this court that the complaint levelled against the victim was false and that she filed this complaint on account of her hostile relationship with PW1 and PW7 and CW10, the brother of the victim. But it is doubtful whether a lady of the stature of PW16 who is a teacher by profession would malign the reputation of her own husband, who is a lawyer practicing at the Hon'ble Supreme Court of India, for a silly verbal brawl with PW1 and her family members. At any rate, she has not till date withdrawn her complaint. In the said circumstances, the enquiry ordered by the mother superior at the recommendation of the accused cannot be regarded as an act of vengeance, as alleged by the prosecution.

Most of all, the Judge then holds in para 394 that:
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. 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 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 PW1 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.

No less significant is what is then held in para 396 that:
As held by the Hon'ble Apex Court in Jayaseelan (supra) 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. In the said circumstances, this court is unable to place reliance on the solitary testimony of PW1 and to hold the accused guilty of the offences charged against him. I accordingly acquit the accused of the offences under Sec. 376(2)(k), 376(2)(n), 342, 377, 376-C, 354 and 506(ii) of IPC.

In sum, this judgment which has dismissed the nun's claim that she was raped on 13 occasions under duress saying that it cannot be taken as reliable on the basis of her solitary testimony has to be accepted even though legal experts contend that this ignores he changes in law on rape till it is overturned by a higher court. It cannot be however lightly dismissed that B Kemal Pasha who is a former Justice of the Kerala High Court has said that:
The verdict was a clear case of miscarriage of justice. Kottayam Superintendent of Police (SP) D Shilpa who is also a women said that:
We got the detailed verdict late Friday. We have sought a legal opinion from the special public prosecutor to move an appeal against the judgment.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut-250001, Uttar Pradesh