‘WHY DID THE COURT ACQUIT BISHOP FRANCO MULAKKAL?’ - A SUMMARY

The recent verdict of the Additional District and Sessions Court -I, Kottayam in State of Kerala vs. Bp. Franco Mulakkal, numbered as S. C. No. 457/2019 on the files of the said court has sent ripples across the nation. Criticism has poured out from media houses and individuals belonging to various sections of society having diverse backgrounds, more so in critique of the judgement stating it as flawed or how justice has failed and that how the nun was put on trial.

But on perusing the judgement, one could see that the conclusions arrived at by the honorable Court is far from flawed. It is an epitome of judicial involvement in a criminal trial, the sole purpose of which is neither to convict nor to acquit, but to find out the truth.

GIST OF THE PROSECUTION ALLEGATION

The prosecution allegation in brief is that the accused being the Bishop of Jalandhar, had raped the de facto complainant in the case, who is a nun of the Missionaries of Jesus Congregation, 13 times over the course of two years between 05/05/2014 and 23/09/2016 at Room No.20 of the St. Francis Mission Home, Kerala, Kuravilangad and had also committed carnal intercourse against the order of nature thereby committed the offences under Sections 376(2)(k), 376(2)(n), 342, 377, 376C, 354, and 506(ii) of the Indian Penal Code, 1860.???.

TRIAL

During the course of trial of over 105 days, the prosecution had examined 39 witnesses and marked 122 documents, along with 4 Material Objects.?The defence had examined 6 witnesses and had produced 58 documents.?Two third party documents were marked as Exbts X1 and X1(a).

REASONS FOR ACQUITTAL

Following are the reasons and legal principles riding on which the court arrived at the conclusion that Bp. Franco Mulakkal is not guilty of raping the nun for over 13 times

I. Neither sterling NOR wholly reliable

Sterling witness or wholly reliable witness

The nature of an offence of rape is such that it is often the raped and the rapist who alone would be having full knowledge regarding the said incident. There is rarely an eye witness to the said crime and in most cases medical evidence could not be relied upon due to the delay incurred in ?reporting the crime. In such circumstances when an accused is called to court to answer a charge of rape, there is limited scope for much evidence for the prosecution to adduce in support of their case.

Courts of our land have been mindful of the said fact and have gone on to hold that a conviction for a charge of rape could be based solely on the testimony of a rape victim given that it inspires cent percent confidence[1]. The evidence of a rape victim has been placed at par to that of an injured witness[2], and courts have time and again placed their belief on the statement of the rape victim alone in arriving at their decision.

?However, with passage of time, the incidents where a person was found to be falsely implicated on a charge of rape have also come out in court most often in retaliation to extraneous matters like family feuds, neighbourhood disputes, romantic disputes etc. ?Recently in August 2021, the honorable High Court of Delhi had a chance to observe in Vimlesh Agnihotri & Ors vs. State and Anr[3] that while there are always repercussions faced by a victim of rape, on the other hand, false allegations of rape have the potential to destroy the life and career of the accused.?The accused in a false case of rape loses his honour, cannot face his family and is stigmatized for life.

Hence, to keep the balance between the interests of the victim to seek justice and to protect the accused from false implication, courts of our country have laid down that an order of conviction in a rape case could be based solely on the testimony of a rape victim given that is shown to be of a ‘sterling’ quality[4]. The term sterling witness has been explained by the apex court in Deepu vs. State (NCT of Delhi)[5] as follows

?‘What would be relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused.”

Yet another classification was made quat the oral testimony of a solitary witness in Kusti Malliah vs. State of Andhra Pradesh[6] into three categories, namely wholly reliable, wholly unreliable and neither wholly reliable or wholly unreliable, wherein conviction could be easily based when the witness is found to be wholly reliable and on the other hand corroboration should be insisted for material particulars before acting on the testimony of the witness who is neither wholly reliable or wholly unreliable.??

?The honorable court after appreciating all the evidence and material particular facts and circumstances was forced to arrive at a conclusion that the witness can neither be categorised as a sterling or wholly reliable witness.?

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Why did the court find the nun to not be of a sterling quality?

1. Omission of Penile Penetration in FIS and description of history to doctor.

As per the deposition of the prosecutrix in court, she had stated that as far as the offence of rape is concerned, the accused had inserted his fingers into her vagina and had forced her to onanism on 05/05/2014 and that on the next 12 instances, she was forcibly and brutally raped.?

However, in her First Information Statement (FIS) that was recorded on 28th of June, 2018 the allegation of atrocity that was committed against her was that of finger penetration for all the thirteen times and there was no allegation of penile penetration at all. A similar version was seen as deposed to the doctor on the very next day, and it was seen recorded by the doctor that there was ‘no history of penetrative sex’. The said portion was seen scored off in the Medical Certificate, and subsequently the defence had summoned the carbon copy of the same which was kept at the Medical College Hospital, Kottayam wherein the said portion was not seen to be scored off and was duly corroborated by an OP Ticket which contained a similar description.

On being asked regarding the omission to state these facts in the FIS she had stated that she didn’t trust the police officer who had taken her statement initially. However, the court found that there was no apprehension of such nature at any point of time and that she herself had stated to the District Superintendent of Police that she was ready to give her statement to a female police officer. She had also stated that her statement was not taken in a free atmosphere. Both these versions were proved to be false with the examination of the Investigating Officer, the WCPO who had taken down her statement as well as the version of Sr. Sophy who was the Mother Superior of the Convent during the relevant period. Moreover, the fact that a nun would go to the extent of alleging vaginal penetration and not disclose about penile penetration would seem to be devoid of any reasonable backing. ?

With regard to the doctor, she did not have a case that she did abstain from telling anything with regard to the incident. The doctor had stated that she had written down everything as deposed to by the victim. In such circumstances, the fact that she was seen stated ‘no history of penetrative sex’ to the doctor during her medical examination was found to be damaging to the prosecution case.

On the other hand, the defence had a version that the story of a penile penetration was introduced subsequent to the medical examination of the victim, as during medical examination the hymen of the victim was found to be completely torn. As there was a risk that it would probabalise the version of the accused that she was having an extra marital affair with Mr. Anand who was arraigned as CW17 by the Investigating Officer, the entire allegations were changed so as to include the allegation of a brutal rape. It was the case of the accused that the entire allegations levelled against him was a counterblast to the enquiry ordered by him into the said issue. That being so, the inability of the prosecution to properly explain the said omission was seen to be of a serious nature. ???

2. The first disclosure

As per the deposition of the de facto complainant in court, she had stated that the instance was first disclosed to Sr. Lissy Vadakkel who was her ‘spiritual mother’ somewhere between the end of 2014 or the beginning of 2015 when she had visited the convent.

The said fact was conspicuously absent in her FIS or in the statement she had given before the magistrate under Section 164 Cr.P.C. On the contrary, as per the deposition in her 164 statement, she had stated that the first disclosure was made to her companion sisters namely PW3 Sr. Neena Rose and PW4 Sr. Anupama in December 2016, and that too that the accused was pressurising her to share a bed with him and not that he had raped or that she was sexually assaulted. However, this was again contradictory to her version in court that she had disclosed to them regarding the said incidents as early as on 29/09/2016.?The inconsistency of the fact to whom the matters were disclosed first and the omission to state such material particulars in the FIS were observed as highly suspicious by the learned judge. He had also observed that a rape victim would never forget to whom she had disclosed to for the first time as it would involve such tremendous amount of courage and bravery, which could not be seen as a minute omission.

The defence argued that Sr. Lissy was a planted witness in light of the fact that she was only questioned by the Investigating Officer on 06/10/2018 which wouldn’t have been the case had she disclosed to the police officer at the very first instance. The court had observed that in the given circumstances a nun wouldn’t have forgotten to whom she had first disclosed the incident. Moreover, the court also found that despite the fact that the de facto complainant and PW2 were in contact till 2016, she had only disclosed the first two incidents. Had it been the case that PW2 was helping her suffer through the ordeal, she would have naturally disclosed the remaining incidents to her as well. However, no valid explanations were given for the same. ??

3. Disclosure to Companion Sisters

As mentioned earlier the de facto complainant had stated before the court that she had disclosed the 13 incidents of rape to PW3 and PW4 on 29/09/2016 and the companion sisters, namely Sr. Anupama and Sr. Neena Rose had deposed in court to the same effect. However, an entirely contradictory version was seen deposed by the de facto complainant to the Magistrate who had recorded her statement under Section 164 of Cr.P.C, 1973 with regard to the time and contents of the disclosure made to them. In the latter, she was seen stated that she had mentioned some things to her companion sisters to the effect that the accused was forcing her to share a bed with him and not that she had done it. She herself had admitted that she did not tell them anything regarding the rape or sexual assault committed by the accused on her, which again was as late as in the month of December 2016. This was further corroborated by a video interview given by Sr. Anupama during September 2018 to Mr. Abhilash Mohan for a program called Counter Point broadcasted on the Reporter Channel. In the said interview she was seen saying that none of them knew about the incident of rape till the police complaint was registered and all they knew was that the accused was forcing her to share his bed. The said video was adduced in evidence and Mr. Abhilash Mohan was examined before the court to prove the authenticity of the same. ?

The prosecutrix had also deposed before the court that it was on October 2016 that she finally mustered the courage to call the Bishop and say that he is no longer permitted to come to the Convent and that if he comes, she’ll leave for her home. However, in her 164 statement it was seen stated by her that she had told him not to visit the convent anymore in the month of December 2016. The court found that the prosecutrix did not have a consistent version as far as the said facts were concerned.

On the other hand, the defence had a specific case that the timeline of the disclosure to the companion sisters and the day she finally said no to the accused was shifted for a specific reason. From the deposition of PW1, it could be seen that the de facto complainant and the accused had a cordial relation till December 2016. They used to attend functions together, have phone calls and email exchanges. Video footages, chronicle (daily register) data from the Convent and email printouts were produced in evidence. It was on 10th of December, 2016 that the accused had ordered an enquiry into the complaint filed by Ms. Jaya Francis levelling allegations of adultery between the de facto complainant and her husband. It was deposed to by PW1 that she used to attend phone calls of the accused till December 2016. The defence had argued that the reason why the dates of disclosure was shifted was for the sole purpose to make it look like there were issues between the accused and the de facto complainant even before the issue of the enquiry came up.

In light of the said circumstances, the court was constrained to observe that there were material improvements, omissions and contradictions which could not be brushed aside as mere shortcomings of human memory. Consequently, in light of established guidelines on the subject, the nun could not found to be of a sterling quality nor could she be seen as a wholly reliable witness, as to base a finding on her statement alone.

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II. ABSENCE OF RELIABLE CORROBORATING CIRCUMSTANCES

As the court found that the victim was not a sterling witness, it proceeded to examine other evidence on record to seek corroboration to her version in court.

?1. STAY OF THE ACCUSED IN THE CONVENT

Much emphasis was placed by the prosecution on the fact that the ?????accused being the Bishop of Jalandhar had stayed at a convent wherein three young nuns were staying alone. It had come out in evidence of the de facto complainant and other inmates of the convent that there was nothing unusual in men staying in Room No.20 which was the guest room of their convent. In fact, it was seen that other bishops, priests and relatives of the inmates therein used to stay in the said room on various occasions. Therefore, the court found that much importance could not be attached to the said fact. It had also come out in evidence that the Guest Room was in a different building than that of the Convent, having separate building numbers and that the said room was in the building wherein an old age home and a ladies hostel was seen to be functioning. So, the contention that the accused was staying in the convent or that it would indicate towards the commission of rape would lose ground.

?2. THE PROSECUTRIX HAD CONFESSED TO VARIOUS ?PRIESTS AND COUNSELLORS REGARDING HER ORDEAL.

?As per Section 157 of the Indian Evidence Act,1872 the fact that a victim ????of rape had made any statement with regard to the incident to any person at or about the time when the fact took place would be a corroborating circumstance. ?It was the version of the prosecutrix that due to heavy guilt that she suffered from the fact that her vow of chastity was broken, she had attended various Spiritual Retreats and had attended various confessions, and that in the course of it she had disclosed her ordeal to some counsellors.

?The court observed that though it is known that the counsellors are under an oath of secrecy to not reveal anything that is said to them in course of a confession, it observed that the victim did not mention the names of the counsellors nor was the Investigating Officer able to identify the confessors who had taken her confession. Though the name of the confessor of the room mate of the victim was identified, the inability to identify the de facto complainant’s confessors were found to be of importance. Moreover, it did come out in evidence that as per the Constitution and Directory of the MJ Congregation Nuns are supposed to have confessions every fortnight and were supposed to attend 5 retreats every year. As per the prosecution case, the victim was raped 7 times during the year 2015 and thrice each during 2014 and 2015. As per records, she was not seen attending any confessions or retreats during 2015. The said fact was unexplained by the prosecutrix.?In such circumstances, the fact that the victim had disclosed the ordeal or had sought for strength to endure the same could not be believed without a pinch of salt.

3. DISCLOSURE TO OTHER WITNESSES REGARDING RAPE

The next corroborating circumstance the de facto complainant had raised before the court was that she had disclosed the ordeals to different people at various points of time. Upon the trial of an indictment for rape, or other kindred offences against women or girls, the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of such complaint, may, so far as they relate to the charge against the prisoner, be given in evidence on the part of the prosecution, not as being evidence of the facts complained of, but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as negativing consent on her part.[7] The witnesses to whom such complaints were claimed to be made by her were examined before the court.

Sr. Lissy Vadakkel

The victim had deposed earlier before the court that she had revealed the ordeal to Sr. Lissy Vadakkel, a nun, during the end of 2014 or the beginning of 2015. ?For reasons mentioned earlier, the court couldn’t place reliance on her version. In addition, during her cross examination she had mentioned that she did not know the investigating officer Mr. K. Subhash or Mr. Mohandas who were present before the court on the same day. She couldn’t identify them. On the other hand, a letter written by Sr. Lissy to her Provincial Superior was shown to her in which she had stated that Mr. Subhash and Mohandas had come to see her and they had even made a phone call to Bishop Kurian Valiyakandathil, the Bishop of Bhagalpur Diocese and then made her talk to him over phone. It was only after that she had given her statement to the police officers. The defence also had a case that the faction feud within the church between the accused and other priests was one of the reasons which led to the lodging of the complaint. Though she had denied the said fact stating that she had written lies to the Provincial Superior, the court found that the name of the Bishop and the investigating officers finding a place in the said letter cannot be said to be a figment of imagination. It did come out in her evidence that few fathers had come to visit her in her convent and they had taken pictures with her as well. As the said witness had changed her stand and her testimony prima facie seemed to be influenced, coupled with the fact that the version of the victim that she had disclosed to Sr. Lissy was absent in her 164 statement or FIS statement and that it only came out during 2018, cast serious doubt on the veracity of the same. Moreover, all these factors gave strength to the version of the defence that she was a planted witness.

Sr. Anupama and Sr. Neena Rose.

As discussed earlier, the court had ample reasons to disbelieve the version of PW1 that she had disclosed about the 13 incidents of rape to Sr. Neena Rose and Sr. Anupama. Moreover, a letter written by Sr. Anupama during 2017 November was also produced by the prosecution which would show that she had no idea as to what was the issue between the accused and the de facto complainant which was further supported by the television interview. ??

Praveen

The de facto complainant had deposed before the court that after getting tensed on knowing the visit of the accused in January 2016 she had informed the matter to Sr. Neena Rose, who with the help of Sr. Anupama had arranged for a taxi for the de facto complainant to reach her home on the event of the visit of the accused to the convent. It was the version of Sr. Neena Rose and Sr. Anupama that they had disclosed the matter to the taxi driver upon his insistence. The court disbelieved this version on the point that it was unbelievable that the nuns would disclose such a matter which was deposed to them with utmost secrecy to a taxi driver in a casual manner. The court also took note of the fact that no other person including the family members of the de facto complainant knew of the incident at that time. In such circumstances the court took the view that it could not be believed without a pinch of salt and that it seemed more like an attempt of the prosecution to include corroboration from an outsider. ?

Darly and Fr. Sebastian Pallasseril

It was the version of the de facto complainant that the incidents of rapes were disclosed to her elder sister Darly and her relative Fr. Sebastian Pallasseril who too was a priest in the Jalandhar Diocese. The court found that both these disclosures were made in the May 2017, after a really prolonged period. It is settled law that delay incurred in disclosing the same would take away the benefit of corroboration under Section 157 of the Indian Evidence Act, 1872. The court placed reliance on the dictum laid down by the apex court in State of Tamil Nadu vs. Suresh[8] to hold that the probative value of a statement made to a non-authority would get reduced with the lapse of time. The proper test is to ascertain whether the statement was made as reasonably as can be expected in the factual scenario and whether it was made before an opportunity for tutoring or concoction.

Fr. Joseph Thadathil

As per the version of the de facto complainant, Fr. Joseph Thadathil, the Vicar of Kuravilangadu Church, was the first person who was non associated with the Jalandhar Diocese to whom she had disclosed the incident of rape to in the first week of June 2017. The vicar was summoned before the court and he had deposed that the complaints raised her were not about any sexual abuse and that he had only come to know about it through media in the year 2018. The only apprehensions that she had raised were regarding the transfers and other internal issues happening within the convent. He was a loyal witness to the prosecution and his version was found by the court to be binding upon them. She had also deposed that she had disclosed the ordeal to the Pala Bishop, however he was given up by the prosecution and thus her version that she disclosed the matter to the bishop was left without any corroboration.

Bp. Sebastian Vadakkel

The next disclosure was made to Bp. Sebastian Vadakkel, the bishop of the Ujjain Diocese. ??The bishop was examined before the court as PW17 and he had deposed before the court that all the prosecutrix had stated to him was that the accused was starting a new congregation and that the sisters were being pressurised to join his congregation and that he was acting as a hindrance to join his congregation. No allegations of rape or sexual abuse was deposed to him.

Cardinal Mar George Alenchery

The victim had deposed before the court that she had complained about the incidents of rape to the Cardinal, who was examined before the court as PW18. However, as per the Cardinal, she had only deposed that the nuns were being maliciously transferred and that he was taking retaliatory measures against the sister. She had also deposed that the accused was sending them obscene messages and that he would indulge in obscene talks. The said messages were not produced before the court by the prosecution. However, the victim had herself admitted in in the written complaint given by the de facto complainant to the Cardinal that upon going through the messages one may not feel anything wrong but that the intention is not pure. ?The court had also stated that even when she had dared to go to such extents to say that the bishop was sending obscene texts, the fact that the victim had still chose not to disclose the ordeal of rape to the Cardinal looms large over the prosecution case. Therefore, in such circumstances, the victim’s version could not get strength from the Cardinal’s version.

Bp. Kurian Valiyakandathil

The victim had deposed that she had written a letter with the help of Fr. Sebastian Pallasseril complaining of rape to the Apostolic Nuncio, and that she had handed over the same to Bp. Kurian Valiyakandathil, the Bishop of Bhagalpur to hand it over to the Nuncio by hand during the CBCI meeting to be held in Bangalore in the month of February 2017. He had deposed before the court that the victim had told him that the letter was regarding the issues she was facing from Bishop Franco as she had refused to share his bed with him. However, the court found that the victim had no such version that she had disclosed anything to the bishop. Moreover, the court had also observed that the bishop was trying to hide something from the court and that he was feigning ignorance to questions raised by the defence regarding his acquaintance with Sr. Lissy Vadakkel. Added to this fact was the version of the defence that he had personal grudge towards the accused on various counts including professional jealousy and over him being denied the opportunity to conduct offerings during the death ceremony of the previous Bishop of Jalandhar, Symphorian Keeparth, who happened to be his relative at the instance of the accused. The court couldn’t rely on him due to many material discrepancies between his version and that of the de facto complainant coupled with other circumstances that came out in evidence. The complaint too couldn’t be admitted as it was a photocopy filed without satisfying the conditions that would permit the prosecution to adduce secondary evidence of the letter as per Section 65 of the Evidence Act, 1872. ?

It is noteworthy that all of the witnesses were loyal to the prosecution and sticked to their version given during investigation. None of them was declared as hostile to the prosecution. It is settled law that the versions of witnesses who are not declared hostile is binding on the prosecution[9] and would enable the defence to place reliance on the same. This fact turns to be very important in appreciating the evidence as a whole.

4. LETTERS WRITTEN BY THE DE FACTO COMPLAINANT

The next point of corroboration that the court had looked into was the letters that the de facto complainant had produced which she claims was written complaining against the bishop to various authorities within the Church. Most of them were dwelling on with the theme of internal issues within the Congregation and regarding the over interference of the Bishop in matters of internal administration of the Congregation. The de facto complainant had claimed that she had purposefully omitted to mention the instances of rape in the letter addressed to the Cardinal at the instance of Bp. Sebastian Vadakkel as his secretaries might go through the letter which subsequently would take the matter to the ears of the accused and cause further problems to the nun. Not only did the Bishop of Ujjain deny that, the same was marked as an omission for the fact that she was giving the explanation for the first time before the court, which did not find a place in any of the previous statements given by her either to the police or the Magistrate. ?However, the said explanation was found to be not satisfactory on account of the fact that the letter was addressed to the Cardinal as ‘Personal and Confidential’ and it was the version of the Cardinal his secretaries would not usually go through a letter which was addressed as Personal and Confidential. Moreover, the court also found it odd as the de facto complaint chose to go to the extent of alleging that the accused was sending her obscene messages but yet still she chose not to mention about the matter of rape. This explanation was found not to be satisfactory to the court. ??

In another complaint dtd 14/05/2018 which she had claimed to have sent to the Cardinal Marc in Rome, she had mentioned about the sexual abuse by the accused on May 05 2014, but she did not mention about the number of times that the incident had occurred rather than vaguely mentioning that it had happened several times. Moreover, in the letter she had also mentioned that she had said a firm no to the accused in September 2016, while her version in court was that it was on October 2016 that she had decided to say no to the accused when she had called him to wish his feast. The said fact apart from being an omission was contradictory to her version in the 164 statement that she had said no to the accused only in December 2016. She had filed a complaint to the police officer in less than two weeks. ?Two other letters sent by her to various authorities could not be looked into for want of due proof of its contents.?

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5. MEDICAL CERTIFICATE

The Medical Certificate of the victim was produced before the Court wherein she was seen stated that there was ‘no history of penetrative sex’, which would again damage the prosecution case. The attempt to cover up the same by scoring off the said part was proved before the court as the carbon copy of the said document was summoned by the accused. ?

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6. IMMEDIATE CONDUCT OF THE VICTIM AND RELATIONSHIP WITH THE ACCUSED

The conduct of a victim is a relevant fact as per Section 8 of the Indian Evidence Act, 1872. The victim had alleged that she was raped by the accused on 13 different dates between 05/05/2014 to 23/09/2016 by the accused. However, out of 9 of the 13 days of alleged rape, the victim is seen in the close company of the accused on the next days attending various functions and traveling along with him. Even after the first instance of rape, the next day (06/05/2014) she was visiting her family along with the accused on account of the first holy communion function wherein the accused was invited as the main celebrant. The court had observed that she had attempted to conceal the said fact while giving the statement before the lady police officer. Being raped just the immediate precedent day, she could very well have stayed back at her home after knowing that the accused might stay back on that night wherein later on she would again be raped. However, her conduct wherein she chose to return with the accused created great suspicion in the mind of the court. Moreover, the email exchanges between the accused and the de facto complainant were produced before the court which would show that both of them were having cordial relations even during the month of February 2016. The court found that the language in the said emails were neither formal nor official but were indicative of a cordial relation, that too during the period of alleged abuse. Moreover, the defence had also produced the photographs and videos of various functions wherein the accused and the de facto complainant were seen in the close company of each other. Though the court noted that she was seen in a joyful mood in almost all of the said pictures and video footages, it didn’t rely on to answer the question whether the victim was raped the day before. The court had done so by remarking that Gone are the days of St. Jerome, when face was considered as the mirror of the mind, and eyes without speaking confess the secrets of heart.’, in what seems to be a biblical reference to those days where men were righteous, honorable and reliance could be placed on their eyes and their face for questions in their heart.

Added to this were the versions of Sr. Leona who was the constant companion of the de facto complainant as seen from the Chronicle of the Convent and that of Sr. Nimisha who was one of the three inmates of the convent during the initial days of rape, that they did not find anything unusual from the actions or behaviour of the de facto complainant till the victim had lodged the complaint in 2018. ??In such circumstances, the version of the de facto complainant loses further ground.

III. PROBABILITY OF THE CASE OF THE ACCUSED?

The accused had argued that he was being falsely implicated in the case as he had ordered an enquiry into a complaint filed by the first cousin of the de facto complainant Ms. Jaya Francis alleging that the de facto complainant was having an extra marital affair with her husband Mr. Anand and that she has endeavoured to implicate him at the instance of certain factions within the Church who were in inimical terms with him. The following factors came out in evidence that would probabalise the version of the accused more.

1. COMPLAINT OF JAYA

The complaint of Jaya, the first cousin of the de facto complainant who was residing at Delhi along with her husband who is a lawyer at the Supreme Court is of crucial significance as far as the facts of this case is concerned as the accused had a case that the case at hand was lodged as a counterblast to the enquiry ordered upon the said complaint.

It was seen from the records that Ms. Jaya had preferred a complaint before the then Superior General of the Congregation on 13/11/2016 wherein she had alleged that the de facto complainant and her husband were having an extra marital affair and that her husband Mr. Anand had visited the Convent and stayed there for 5 days at the Kuravilangad Convent under the pretext of attending the Abhishekagni Convention and had sexual relations with her on all the said days. She stated that she they used to constantly send messages and have phone calls, and had also enumerated various facts and circumstances in the complainant regarding the matters of the congregation and her relation with the accused which were within the special knowledge of the de facto complainant and included private body marks which were known to her husband in course of their relationship.

As per her version it was that on 05/11/2016 the de facto complainant had forwarded a message which was sent by her husband Mr. Anand to her. Upon seeing the same, Jaya had called her on her phone where she had told Jaya that her husband had sent that text and that he’s over-caring. Confused, she forwarded the same to her husband and decides to go home earlier. Upon reaching her house she finds her husband writing a note seeking forgiveness and she finds a rope noose tied in their room in what seems to be in furtherance to commit suicide. Seeing this they have a full-blown fight wherein Anand confesses to her that he had been having an affair with the de facto complainant behind Jaya’s back. He explains how it all started at their apartment during August 2016 when she came for a visit and after Jaya left for work early the de facto complainant had hugged him and kissed him and had told him that she had been waiting to do that for some time. Thereafter they spend some time doing ‘immoral things’ and thereafter she made him take a photograph of her without her religious dress on wearing her nighty and her goggles. ?Throughout its course the letter contains various instances which found corroboration from various documents and testimonies made before the court.

The de facto complainant’s version is that it is a false allegation which is a figment of imagination of her cousin who is suffering from certain mental ailments. She had even gone to the extent that similar allegations were raised by Jaya against her sister which had caused various issues within their family. Yet in one of the letters written by her to the authorities she is seen saying that the letter was written by her cousin at the instance of the accused.

When Jaya was examined before the court, she had denied all the said versions of the de facto complainant. She had deposed to the effect that the said allegations were written in the heat of a moment where she was having a fight with the de facto complainant and her siblings over a text message which was forwarded by the de facto complainant to Jaya which was alleged to be sent by her husband. She had stated that she had written such allegations with the intent to ridicule her and her family in retaliation to them ridiculing her.

The court while examining the evidence found the said explanation not to??be satisfactory for a count of reasons:

?(a) that it seemed improbable that Jaya, a teacher working in a reputed private school in Delhi would travel 7 hours to Jalandhar to meet the Superior General of the Congregation and would raise such imputations against her husband who was working as a reputed lawyer at the Supreme Court of India over a simple misunderstood text, the contents of which, interestingly, none has deposed before the court.

(b) The letter contained many matters which were within the special knowledge of the de facto complainant. No explanations were provided as to how Jaya came to know about such circumstances, especially with regard to the messages and conversations between the accused and the de facto complainant.

(c) There were ample corroborations found from the Chronicle of the Convent as well as the statement of Sr. Leona with regard to circumstances mentioned in the letter.

(d) That Jaya had deposed that she and the de facto complainant are still not on talking terms.

(e) That no corroboration was provided for the fact that Jaya was having any mental illness or that she had raised such imputations against her sister on a previous occasion, both of which were vehemently denied by Ms. Jaya.

(f) The court had found that the handwriting and signature of Ms. Jaya on the complaint resembled her handwriting of the endorsement made her deposition in court despite the fact that she had not admitted the same.

(g) That Jaya has not retracted her complaint till date.

(h) That there is every possibility that she was deposing falsehood before the court under peer pressure from her family to protect her family honor and reputation.

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2. RETALIATORY MEASURES TAKEN BY THE CONGREGATION AT THE BEHEST OF THE ACCUSED

It was seen that an order was passed by the accused to conduct an enquiry on 10/12/2016. Consequentially, the de facto complainant was stripped of her Kerala-in-Charge post in February 2016. As the enquiry seemed to be lagging, he had yet again passed a reminder in the month of 13/03/2017. Both of the said documents were produced before the court and were duly proved.

Consequentially, in May 2017 de facto complainant was removed from the post of Mother Superior of Kuravilangadu Mission Home. It was her version that she was demoted to the post of an ordinary nun and that it was unprecedented to have a nun demoted from a post and to be retained in the same convent.

However, during her cross examination she had admitted that she was retained in the said convent as per her request for treatment purposes. The prosecution did not produce the transfer list before the court. Added to that was the deposition of Sr. Sophie, the Mother Superior of St. Francis Mission Home during the period of investigation, that it was normal for a nun who was taken off a position to be continued as a normal nun. Moreover, the court found that it was not abnormal for an authority to order an enquiry into an allegation involving the breaking of the vow of chastity of a nun. As seen from the interview given by Sr. Anupama to Sri. Abhilash Mohan, the court had taken note of the fact that the nuns were ready to settle the issue had their demands of having a separate region under the Bhagalpur Diocese with the Kuravilangadu Convent as a mission home under the said region were granted, which would yet again point towards the fact that the matter was pertaining to the internal issues of the congregation.

The court had also observed from various enquiry reports that were produced by the prosecution, namely the ones in July 2017, January 2018 and June 2018 that there was a lot of infighting going on between the members of the Kuravilangadu Mission home on account of the issues of transfer, appointment and assigning of roles which would point towards lack of indiscipline and mutual respect among the members. The issue of physical harassment levelled against the de facto complainant and other nuns by Sr. Tincy, who was the successor of the de facto complainant as the Mother Superior in the said convent post May 2017 was one among the many instances highlighted in this regard. ?In the said circumstances the court disbelieved the version of the prosecutrix that it was a retaliatory measure on part of the accused as she didn’t yield to his sexual desires.

3. FEUD FACTION WITHIN THE CHURCH

The court observed from the deposition of Fr. Antony Thuruthiyil, a priest belonging to the Jalandhar Diocese that there were many fathers who harboured enmity towards the accused. The names of some of the fathers were deposed by him as well, some of them who were arraigned as witnesses by the Investigating Officer but was given up by the prosecution without examining. The court had also noted the fact that Fr. Sebastian Pallassery was one among such names and a contradiction was put to him that he along with other priests had met the accused. Various other instances were also pointed out to the accused where there were protests and black flags being waved at the accused on various instances. Couple of instances wherein the accused had taken disciplinary actions against some of the named priests were also put to him. Moreover, the involvement of some priests could be derived from the testimony of Sr. Lissy Vadakkel. Some of the letters relied on by the prosecution sent to Rome contained some attachments given by some of the fathers named which could only have been complaints unconnected to the issue at hand. Therefore, the court found that there was in fact some faction feud that was playing within the church that had played its part in the case at hand.

IV ?FLAWS IN INVESTIGATION

The inability of the investigating officer to

a)????produce the mobile phone of the de facto complainant before the court in which the accused was said to have sent obscene messages

b)???produce the laptop of the de fact complainant which was admittedly used to prepare all the complaints and which also contained various messages sent by the accused

c)????conduct an investigation as to the claim of the de facto complainant that she had taken a new sim card after she gave her dispensation letter

d)???the fact that no investigation was made on the disclosure of an incident of rape on 15.01.2015 which was absent in her earlier disclosures

e)????the inability to produce the mobile phones of Ms. Jaya Francis and her husband Mr. Anand

f)?????No investigation as to the room in which the de facto complainant used to reside during the time of the alleged incidents of rape

g)???No investigation as to the details of guests of the old age home or the lady’s hostel who used to stay in the convent during that time or who used to stay on the same floor as that of the accused and the de facto complainant

h)???No investigation made on the correction on the medical certificate of the de facto complainant

i)??????No investigation done on where the companions of the accused who had visited the convent along with him on the certain dates of rape had stayed and their knowledge as to the incidents of rape????

V. NO PROPER EXPLANATION OF DELAY INCURRED IN FILING THE COMPLAINT

The court had observed that it is settled law that delay in lodging an FIR in sexual offences need not be used as a ritualistic formula to doubt the prosecution case, [10] and it was also mindful of the fact that the said exception is to be applied with much care and caution on account of a rise of fake rape cases being filed in the country. In such circumstances the court observed that it becomes all the more important to see whether there are any extraneous reasons for setting the law in motion. The court had placed reliance on the dictum the apex court in Ramdas and Others v. State of Maharashtra (2007) 2 SCC 170 wherein it was observed that the delay in registering the FIR may not by itself be fatal to the case of the prosecution but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.

After analysing all the evidence on record, the court had concluded that the sexual allegations against the accused started coming after the initiation of disciplinary proceedings against the de facto complainant on the basis of the complainant of her cousin Ms. Jaya Francis. Though the court had observed that she had filed various complaints to various authorities between December 2016 to June 2018, it was seen that almost all of them were related to matters of internal administration particularly relating to the question of transfer and other issues. Though the court observed that there were complaints against the accused as well ranging from that he was playing behind the curtain, or that he was over interfering in the matters of the congregation, or even to the extent that the Bishop would use the sisters sexually if he gets a chance, no allegations of rape or sexual abuse were levelled against the accused by the de facto complainant at any point of time.

VERDICT

Considering all the facts and circumstances pertaining to the case, the inconsistencies in the versions of the de facto complainant the rest of the witnesses and the results of investigation, her attempt to hide material facts, and the infighting within the church and the congregation, the court came to a conclusion that the case at hand was of such a nature where the truth and falsity were so inextricably mixed up to the point that it was impossible to differentiate between what is true or what is false. In such circumstances, the court relied on the dictum of the honorable apex court in Jayaseelan vs. State of T.N[11] wherein it was held 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 the divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available is to discard the evidence in toto” and observed that the court was unable to place reliance on the solitary testimony of the de facto complainant to hold the accused guilty of the offences alleged and in the absence of other corroborating materials, the court had found the acquitted the accused from all the charges arraigned.

CONCLUSION

Considering all the circumstances pointed above, one could only see that the honorable court had approached each issue and had answered each of them from the standpoint of a reasonable and prudent man as stipulated by law.?The learned judge had arrived at each conclusion based on a subjective evaluation of facts, circumstances and evidences on record. In a criminal trial, appreciation of evidence based on the touchstone of reasonableness and that of established principles of law is the cardinal role of a Court.

It was observed in Tarapada Mitra?v.?Emperor[12]?that in order to convict an accused it is not enough to find that the prosecution theory is one theory which would explain the facts, but it has got to be shown that it is the only theory which in a reasonable sense is compatible with the facts. However, from the facts of the case that would not be the case.

?The fact that the finding of a trial judge has the advantage of observing the demeanour of the witness should not be overlooked. Throughout the annals of the judgement, the court is found answering several questions and doubts regarding the versions that were presented before it which the prosecution has unsurprisingly failed to answer. Those apprehensions are that of any reasonable and prudent man, the standard which was devised by Sir James Stephen when he had given birth the law governing Evidence in India. The court had rightly quoted the words of the honorable apex court in Tameezuddin @ Tammu v. State of (NCT) of Delhi[13] where the court had stated that ‘it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.” For the reasons stated earlier, no fault can be found in the finding of the court that the de facto complainant was neither a sterling witness nor a wholly reliable witness in order to base a conviction solely upon her statement before the court. Going through the rest of the evidence before the court it could also be seen that there exist no corroborating circumstances which could be relied on in support of her version. On an unbiased appreciation of facts and circumstances, a finding contrary to the acquittal of the accused would be a perversion on the face of established principles of law regarding appreciation of evidence in a criminal trial. A contrary finding cannot be arrived at without shaking the foundational stone of Section 3 of the Indian Evidence Act, 1872.

While there are many critics of the judge who took a bold stand to acquit the accused in a sensational case such as the once at hand, they need to be mindful of the fact that it is that fake rape cases are a nasty truth in this country, where the shield of law is being misused for various extraneous reasons. Recently the Delhi High Court in Vimlesh Agnihotri had rightly observed that such litigations are instituted by unscrupulous litigants in the hope that the other party will capitulate to their demands out of fear or shame. The court had even stressed on the duty of judges to ensure that there is no incentive or motive for frivolous litigations which unnecessarily consumes the Court’s otherwise scarce time and had even recommended imposition of exemplary costs on litigants found to be doing so.

THE ROLE OF MEDIA TRIAL

The role that media plays in a criminal trial has often been a point of debate in this country. Trial by media is a phrase, popular in the late 20th century and early 21st century, to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in a court of law.[14] ?The courts have time and again warned the presiding officers to not swayed by public sentiments and that no external factors should come in their way when it comes to dispensation of justice. It is often quite conveniently forgotten by all and the media in particular, that a man is presumed innocent until he is proven guilty. In Murukeshan v. State of Kerala[15] the words of the court assumes ever relevant significance, which is quoted below

?“The Fourth Estate also does not seem to realise the irreparable damage that may be inflicted on the victims of crimes and the alleged culprits and those close to them through sensationalised journalistic adventures. Truth is very often suppressed, exaggerated or distorted in order to add flavour and spice to the story put forward. The fickle minded public which might be conditioned to believe a particular version given through a calculated process of media indoctrination will be loath to accept a different conclusion reached in the Court verdict. It is pertinent to remember that the Trial Court can take into consideration only legal evidence. If the Court were to finally record an order of acquittal for want of acceptable evidence before it, it may not be out of place if the public at large were to conclude that the Court verdict was wrong. They may even attribute motives in the presiding Judge. No disciplined society which believes in the rule of law can afford to have such a state of affairs to come to stay.”?

From the matters on record, it is undeniable that the court had displayed exemplary involvement rather than being a mere umpire who would sit and record the evidences at hand. This trial is an excellent example of the fact that judicial wisdom of a judge could go miles in ascertaining the truth in a case. It is not just the spirit of law but the faith of an independent and unbiased judiciary that has been kept alive with this judgement. By all means this judgement written in golden letters is a true reflection of the spirit of fair trial and an ode of time to the cardinal saying fiat jusitia ruat caelum, that let justice be done though the heavens may fall.

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[1] State of Himachal Pradesh vs. Manga Singh 2018 (15) SCALE 895

[2] Wahid Khan vs. State of Madhya Pradesh, (2010) 2 SCC 9, Raja and others vs. State of Karnataka (2016) 10 SCC 506

[3] Crl. M. C. 1524/2021, High Court of Delhi

[4] Krishna Kumar Malik vs. State of Haryana (2011) 7 SCC 130

[5] (2012) 8 SCC 21

[6] (2013) 12 SCC 680

[7] The Queen V. Lillyman., [1896] 2 Q.B. 167

[8] AIR 1998 SC 1044

[9] Mukhtiar Ahammed Ansari vs. State (NCT of Delhi) (2005) 5 SCC 258, Jagan M. Seshadri vs. State of Tamil Nadu (2002) 9 SCC 639, Assoo vs. State of M. P (2011) 14 SCC 448

[10] Dildar Singh vs. State of Rajasthan (2006) 10 SCC 531, State of U.P. v. Manoj Kumar Pande (2009) 1 SCC 72,?

[11] AIR 2009 SC 1901

[12] A.I.R. 1933 C. 603.

[13] (2009) 15 SCC 566

[14] Judicial Activism of Media, 2010 PL July S-2

[15] 2011(1) KHC 97