Reacting to the acquittal of Bishop Franco Mulakkal in a rape case, former district Superintendent of Kottayam, S Harishankar said that the judgment was unprecedented and unfortunate. Despite the consistent stand of the complainant and the witnesses, the judgment by Kottayam Additional District and Sessions Court judge G Gopakumar has come out not in favour of the survivor, which is not in line with the general trend of judgments in sexual assault cases in the country, he said.
The acquittal comes over three years after the survivor, a nun from the Missionaries of Jesus convent in Kottayam’s Kuravilangad, began fighting a legal case against the bishop. She said that the bishop raped her 13 times between 2014 and 2016, and despite submitting a complaint to the Church in 2017, no action was against him. In June 2018, she approached the police.
“This is an unprecedented judgment, which cannot be accepted. The survivor has given an exact statement and she was cross-examined for nine days. As she was telling the truth, there were no contradictions during the cross-examination. Also, there is clear medical evidence and corroborative witnesses. In such cases, there are guidelines which state that punishment shall be granted based on the survivor's statements alone, if it is without contradictions. With this in place, acquitting a case with this many corroborations and medical evidence must be a first one in the history of Indian legal framework, and it stands as an odd one out in the Indian legal framework,” said the former Superintendent of Police, who headed the investigation in the case.
While there is a clear statement from the survivor, he said that even the delay in reporting the incidents which started in 2014 was justified. Harishankar pointed out that the Supreme Court has said that if the delay in reporting has sufficient reasoning, a delay shall not be a sole reason for acquittal. “Rape is a particular type of crime, where when the accused becomes guilty in front of law, the survivor is singled out in society," he said.
“In a fiduciary relationship, the existence and day-to-day life of a nun is dependent on a bishop. The fear of reporting against a person who can decide the fate of the survivor is behind the delay in reporting this incident. The existence of the survivor depends on the assailant. In such a situation, we cannot expect the survivor to speak out immediately. She was not able to talk because of psychological pressure. But she was talking to nuns, did confessions in church and tried to take it up to higher authorities, which amounts to taking continuous action. And then she came to the police in 2018,” Harishankar said.
Stating that there is a social angle to this, he said that the nun got the chance to talk, and as there was help, she came forward and is fighting. “There are hundreds of others silenced like this in several institutions, including orphanages, children's homes, mental asylums, old age homes, where there might be situations in which the protector is the assailant. There might be several institutions where fiduciary relations are being exploited. There are hundreds of people who are scared to talk, as their life and existence is under threat. Such people might be around us. We must think about what message this judgment is sending out. What is the message that we are giving?” he asked.
“If we are saying that these people must be silent throughout their life, then I think it is a wrong message that we are sending out to the society. This is a totally unacceptable judgment. We will go for an appeal. As soon as we get the judgment copy, the Investigation Officer and prosecutor will hold discussions and go for an appeal,” he added.
Speaking about accurate and consistent evidence in the case, Harishankar said that there is corroborative evidence and exact witnesses. “This is a case where people came forward courageously and provided accurate testimony, without being influenced. Further, there are three pieces of medical evidence. For a nun, evidence for vaginal penetration is an abnormal one and that came out exactly,” he added.
Saying that the judgment is an unprecedented one, he said, “The SC has said that if the survivor’s statement in itself is consistent and without massive contradictions, it is a satisfactory piece for conviction. In this backdrop, we are seeing this judgment in astonishment.”
He further added that the defence witnesses were not able to establish any facts. “No credible defence witnesses were produced and all the prosecution witnesses gave statements accurately. We can understand the interpretation only when we get the judgment copy and will definitely go for an appeal,” Harishankar said.
Harishankar went on to say that another speciality in this case was that the SC’s survivor protection scheme, that came out after a 2018 judgment, was implemented for the first time in a case in Kerala. “There was an instance where a witness was hidden in Hyderabad so as to not let them speak. After a missing case was filed by the family members, they were brought back and they submitted an application to the competent authority of the survivor protection scheme of the Kottayam district magistrate and based on that they were given witness protection,” he said.
“We were expecting a 100% conviction till this morning. Even when I called the prosecutor this morning, he said that there was no way other than conviction. No witness turned hostile in this case. This is a setback for those who truthfully gave statements despite all odds. There are many who are silenced in several places. All of them will not come out after this. What is more painful is the message we are not able to send — that is, no matter how powerful a person who did a mistake is, if a survivor comes forward, they will be punished,” the former SP said.
He added that all of these were ‘an academic interpretation of the judicial decision in light of existing decisions of higher courts’. "Like a delay in FIR; how to consider delays and contradictions in a rape case. We expected a conviction based on these factors. A different judgment has come out, which is not in line with the general trend of judgments in the country, which is an aberration. How that aberration happened can be understood only after reading the judgment copy. Our belief is that there is a huge scope for appeal in this case,” he said and added that the judgment should be analysed in a detailed manner and should definitely go for an appeal.
“This is not a case that would end here. The investigation team has not even thought about leaving this case here. Further steps will be taken after seeing what is the legal interpretation given by the court,” Harishankar said.