Franco Case: Kerala Police Shocked as Witnesses Discredited on 'Minor Grounds'
A senior police officer who is privy to the case pointed out several 'glaring errors' in the judgment.
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Shocked by the verdict in the case of the Bishop Franco Mulakkal, the Kerala police has retorted strongly saying, “all prosecution witnesses have been discredited as unbelievable on minor grounds which are not acceptable.”
The Additional Sessions Court at Kottayam adopted an approach that did not make any attempt to understand the socio-psychological perspective of the survivor, said a source in the police department.
A senior police officer (on the condition of anonymity), who is privy to the case, explained to The Quint the “glaring errors in the judgment order.”
In a 289-page verdict delivered on Friday, 14 January, Additional Sessions Judge G Gopakumar had declared Mulakkal not guilty.
Here is what the court held and what the police had to say.
1. Delay in Filing Complaint
What court held in judgment:
The court said that though prosecution alleged that the incidents of sexual violence started in May 2014 and ended on 23 September 2016, the revelations only started somewhere towards the end of 2016, and the complaint was only filed in June 2018.
Rebuttal by Kerala police:
“The court has accepted that the accused is the supreme authority over the victim who has the powers to influence her life. Under such circumstances, inability to resist or delay in reporting etc is quite natural," said the police officer.
2. Inconsistent Versions by Survivor Regarding Rape
What court held in judgment:
This perhaps might have been the most crucial aspect of the judgment, which turned the tide against the survivor. The court noted that in her initial disclosures, during December 2016, the allegation was that the accused was forcing her “to share bed” with him and not of rape.
She did not reportedly mention in dispensation letter dated 26 May 2017 that she was subjected to sexual violence. In a letter dated 14 May 2018, her version was that the accused abused her several times. But it did not specify that she was raped on 13 occasions.
In the first information statement (FIS) that became the FIR, she did not disclose any information about penile penetration in the first alleged event of abuse on the night of 5 May 2014.
These inconsistencies led them to doubt the survivor's credibility, the court concluded.
Rebuttal by Kerala police:
“When a nun is asked about rape, she would be hesitant to speak up about it initially. Because losing her virginity will affect her association with the church. But when the investigating officer had asked her after medical inspection, she agreed to it and we made a note of it.
"The usage of words rape, sexual harassment, sexual abuse is used interchangeably in common parlance. The fact that the term penetrative sexual intercourse was not used each time by the victim cannot be looked upon as an omission, as the victim does not have legal knowledge. Rather it should have added to her credibility,” said the police officer.
3. Important Evidence (Mobile, Laptop) Not Produced
What court held in judgment:
The court said that the survivor had complained that the accused used to send obscene messages to her phone. However, the prosecution failed to produce gadgets on which messages were received and sent. Digital evidence which could have corroborated testimony of the survivor was not produced, the judge said.
Rebuttal by Kerala police:
“In 2017 January, the nun had decided to leave the congregation. She packed her mobile phone, laptop and books in a sack and gave it to her brother. When we inquired with him he said that he had given it to a scrap dealer. We traced the scrap dealer and he told us that he had sold it to a Bengali guy for Rs 3,000. Now, we had recorded her statement in June 2018. We can get the Call Detail Record (CDR) from one year before, but how can we get it from even earlier that? We have clearly mentioned all of this with proofs," said the police officer.
4. The Character Assassination of the Complainant Nun
What court held in judgment:
The court said that it was true that the hymen of the survivor was found torn in her medical examination. But the accused argued that there was a complaint against her by her own cousin Jaya, that she had indulged in sexual intercourse with her husband, and that this offered a different explanation for the medical findings.
It is relevant to note that the complaint of Jaya emerged after the victim allegedly started resisting the sexual advances of the accused.
"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," the court said.
Rebuttal by Kerala police:
“Jaya herself deposed before the court that the petition was false and was given due to a family feud. However, the court refuses to believe her deposition and insinuates that there may be some truth in the petition.
"The judgment goes an extra mile to leave a blot on the morality of the victim when the same is irrelevant and inadmissible as per law. Two witnesses (nuns) had referred to bad conduct of the accused which has been brushed aside as inadmissible. The irony is too glaring to ignore,” said the police officer.
5. An Interview Used to Discredit a Witness
What court held in judgment:
The court cited a television interview by a Reporter TV journalist Abhilash Mohanan in September 2018, as part of the channel’s Close Encounter series. The defence emphasised on one phrase that Sister Anupama, a key witness in the case, said in the interview: “We got to know details about the incident after the police complaint.”
Rebuttal by Kerala police:
"A witness was discredited based on a minor contradiction in an interview given to Reporter TV. The interview was downloaded from YouTube and furnished to the court and the court has marked it as evidence. A video downloaded from YouTube is not admissible in a court of law as it doesn’t satisfy the ingredients of [Section 65B of the Evidence Act]. How it has been marked as evidence and used to discredit PW3 remains a legal flaw," said the police officer.
[Note: The journalist, Abhishek Mohanan deposed before the court about the veracity of the recording and the 65B certificate was produced as required for it to be entered, so it is unclear how the police are objecting to its admission as evidence. However, the statement by the nun does not actually contradict the version of events put forward by the survivor, as the latter had told them she was being forced to share a bed with Mulakkal. Just because she didn't give Sister Anupama full details at that time doesn't amount to a contradiction.]
6. Allegations That Survivor Had Close Association With Bishop
What court held in judgment:
The court noted that emails and photographs showed that the survivor had close interactions with the accused in the days immediately after the alleged sexual violence, including after the first alleged act of sexual assault.
“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.
Rebuttal by Kerala police:
"Consent under 375 IPC means unequivocal verbal or non verbal consent to the sexual act. Even, lack of resistance cannot be assumed as consent to sexual act as per the above section. Notwithstanding the above facts, the judgment has discussed that the victim and the accused have travelled in the same car, they have participated in a function, etc while she was alleged to be having a sexual abuse from the accused.
"There is an attempt to give these facts a colour of consent while none of the above are even remote indications of consent as per law already discussed and as per the established positions set forth by higher courts.
"In fact these should have been viewed as the ill fate of victim bound in a fiduciary relation with huge power imbalance vis-a-vis the accused," said the police officer.
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