Franco Mulakkal case: Prosecution to file appeal in Kerala HC

“The court has accepted the authority of the accused over the complainant and hence established a fiduciary relationship between them.
Bishop Franco Mulakkal greeting his supporters after he was acquitted by the Additional District and Sessions Court-I in Kottayam. (Photo | Express)
Bishop Franco Mulakkal greeting his supporters after he was acquitted by the Additional District and Sessions Court-I in Kottayam. (Photo | Express)

KOTTAYAM: Amid strong criticism from various quarters over the acquittal of Bishop Franco Mulakkal — former head of Latin Catholic Diocese of Jalandhar — in the nun rape case, the prosecution and the investigation team have decided to file an appeal against the trial court judgment in the High Court.

Even as reactions condemning the verdict by the Kottayam Additional District and Sessions Court-I flooded the social media, the investigation team’s scrutiny of the judgment found several disagreeable observations made by the court, which it will point out in the High Court.

While the prosecution is of the view that the rape survivor was discredited through the observations in the judgment, legal experts said the reason for dismissing the rape charge against the accused, even after the “fiduciary” relationship between the victim and the assailant was proven beyond doubt, was not satisfactory.

“The court has accepted the authority of the accused over the complainant and hence established a fiduciary relationship between them. In such a context IPC 376 (rape on a woman incapable of giving consent) will definitely stand. Then there is no value for minor contradictions, omissions or additions in the statement of the survivor. This apart, the prosecution could prove that the accused stayed in the convent on the day the complainant was raped,” said an advocate on condition of anonymity.

According to the prosecution, the victim was discredited for minor differences in various statements, which is unacceptable. As per the principle adopted by the apex court, minor changes in deposition is a sign of credibility while it is the parrot-like version that has to be discarded. And the court has failed to appreciate this fact, the prosecution said.

Court was keen on finding reasons to disbelieve victim: Kemal Pasha

The prosecution is also planning to point out in the High Court that all the prosecution witnesses were discredited as unbel ievable on minor grounds. “For instance, to escape from disciplinary action from the Church for cooperating with investigation, witness number 2, who is a nun, had given an apology to her superior in writing in which she stated that she had given the statement on police pressure and she would not proceed. The court took this into account to come to a conclusion that she is an unreliable witness, while the circumstances in which she gave the letter was given no appreciation,” the prosecution said.

The social background of the nun and the context which led to different expressions on her experience have not been appreciated. The usage of words rape, sexual harassment, sexual abuse was used interchangeably in common parlance. The fact that the term penetrative sexual intercourse was not used each time by the victim couldn’t be looked upon as an omission as the victim was neither preplanned nor has legal knowledge, the prosecution said.

The judgment seemed to give a colour of consent to the act which has not even been raised by the accused. Consent has to be unequivocal verbal or nonverbal for the sexual act which has to be proved by the accused. Travelling in a car or participating in a function is not consent by remote chance, pointed out the prosecution. Meanwhile, former High Court judge Justice Kemal Pasha lashed out at the judgment stating the court was keen on finding reasons to disbelieve the victim rather than believing her. “The findings in the judgment are perverse.

Several observations were against our common sense. The minor contradictions or changes in statements are expected. It happens in the natural course of human conduct. Moreover, statement on the failure of producing some materials objects like mobile phone of the victim, was not at all relevant in this rape case,” he said.

Meanwhile, District Police Chief Shilpa Devaiah said steps had been taken to ensure the safety of the dissident nuns who protested against the bishop. Currently, the nuns are staying at the St Francis Mission Home, Kuravilangad. Shilpa said the police would seek legal opinion from the prosecutor in filing appeal against the judgment. “We have 60 days to file the appeal. But we are planning to do so as early as possible,” she said.

Prosecution claims

  1. Reason for dismissing the rape charge against the accused, even after the fiduciary relationship between the victim and the assailant was proven beyond doubt, was not satisfactory
  2. The victim was discredited for minor differences in various statements, which is not acceptable
  3. All the prosecution witnesses were discredited as unbelievable on minor grounds
  4. The judgment seemed to give a colour of consent to the act which has not even been raised by the accused

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