Bishop Franco Judgment Overturned Criminal Law Jurisprudence, Put Rape Survivor On Trial : Rebecca John

Renowned criminal law practitioner Rebecca M John, Senior Advocate, criticized the judgment of the trial court which acquitted Bishop Franco Mulakkal in the nun rape case. She termed the judgment "a travesty", which "put the victim on trial instead of the accused", "overturned the criminal law jurisprudence" and "completely disregarded the law of the land".

Speaking at a virtual meeting organized by "Forum of Religious for Justice and Peace" - a Catholic reformist organization comprising priests and nuns-  to critically analyze the judgment in the Franco case, John said that the trial court ignored well-settled principles regarding the appreciation of evidence of a rape survivor.

She explained that the law on the evidentiary value of the rape survivor is different from other criminal cases. When you look at the testimony of the rape survivor, you must be conscious of the fact that she may not have corroborative evidence, and even if she has corroborative evidence, it might be incomplete, because, given the nature of the offence, the victim will have problems about confiding in others. So, rape survivors' testimony will be always viewed differently from the testimonies of witnesses in other cases. She pointed out that the Supreme Court has stated this in numerous precedents.

"What I find from the judgment of the trial court at Kottayam is that the Court has put the rape survivor on trial instead of the accused, and has gone about nitpicking and disbelieving her in a way which is impermissible in law", said John who has handled several notable criminal cases such as Arushi Talwar, Harshad Mehta scam, Hashmipura massacre,1984 anti-Sikh riots, 2G spectrum scam, MJ Akbar-Priya Ramani etc. She is also the amicus curiae appointed by the Delhi High Court to assist it in the petition challenging the exception to marital rape from Section 375 IPC.

"The Court spends a lot of time dissecting the evidence of Prosecution Witness 1(the rape survivor) and disbelieving her simply because she did not state the full extent of the sexual acts at the time when she made the First Information Report and when she made the disclosures to other sisters", she added.

"Even if she had not confided in anyone, if you find her testimony to be credible, you don't need corroboration. That is the fundamental rule. The fact that she confided in three fellow sisters wholly corroborates her version that she was subjected to sexual assault. What the Court then does is in fact it dissects her evidence and says that the full extent of sexual assault was not told to other witnesses.

Now I am asking myself a question as a criminal lawyer who has practised in this field for 34 years- where is the need or obligation either in law or in the facts of a particular case for a witness to confide in the full extent of the sexual assault to anyone other than the Court? The fact that she mentions briefly, with some details, about the incident to three sisters is sufficient and to my mind... that was enough to prove that she was a credible witness", she continued.

John said that the Court fell in "serious error" by disbelieving the survivor only because the minute details of the assault were not revealed to the other witnesses.

"The Court failed to take into account the position in which the complaint was placed. She is a nun staying in a convent having taken the oath of celibacy. Also, the Court failed in taking into account the hierarchical nature and the power differential between her and the accused. This was a deeply problematic and difficult thing for her to tell outside. And if she came out with a comprehensive version in her first statement before the Magistrate under Section 164 CrPC, that should have been treated as the end of the matter. There is no obligation on her to tell all the individual facts of the assault to everyone she speaks to.

The Trial Court fell in error by failing to empathise the position in which she was placed and the consequences she and the three incredibly brave sisters who stood by her may have to face for speaking out against a superior".

FIR not an encyclopedia

Next, John dealt with the Court placing importance on the FIR not mentioning the intricate details of the crime. The Court had noted that she mentioned penile penetration only in her 164 statement, and this was viewed as an improvement in version so as to affect her credibility. Criticising this approach as a fundamental error, John said that the law is well settled that the FIR need not be an encyclopedia of facts and that it simply has to lay out the broad parameters of the offence.

John pointed out that the nun did not have to go into the details of the incident at the FIR stage. When the Sister felt comfortable before the Magistrate, she gave the full and complete version.

"Therefore to nitpick and discredit the testimony of PW1 on the basis of insufficient materials given at the time of FIR, to my mind, was wholly unnecessary, bordering on illegality and certainly showing no respect for judgments of higher courts, including the Kerala High Court".

Even otherwise, her initial allegations relating to non-penile penetration constitute the offence of rape as per the expanded scope of Section 375 after the 2013 amendment, she pointed out.

Section 376(2)(f) IPC ignored.

John further said that the Court did not examine the issue from the angle of the offence of "aggravated rape" under Section 376(2)(f) IPC which deals with rape by a person in a position of trust or authority against a woman under his control.

"Lawmakers were conscious of the fact that in such situations, the woman is placed at a disadvantage. If a woman in such a situation alleges rape, it comes within the corners of Section 376(2)(f), which is an aggravated form of rape. The Court completely glossed over this issue of the accused being in a position of trust and authority".

"I find the approach of the Court not just insensitive but completely contrary to the statutory requirements of Section 375 and 376 as well as the law laid down by the Supreme Court. So this is a case where the Court has put the woman on trial whereas the whole purpose of the criminal trial is to ascertain the truth and to put the accused on trial. By discrediting the woman in this manner, a very grave disservice has been done.

It is not my case as a criminal law lawyer that in a given case an accused must never be acquitted. If the case is not proven beyond reasonable doubt, the accused should get the benefit of acquittal. However, while assessing the evidence of rape survivors, the Courts must be conscious of the position in which the victim was before passing any value judgment".

John opined that in this case, it appeared that "there was a predisposed and predetermined mindset that the accused had to be acquitted and every attempt was made to discredit the survivor, a very very brave woman, including three of her corroborators".

Furthermore, John criticized the approach taken by the Court in dealing with the evidence of PW16, a relative who had earlier levelled allegations of sexual misconduct against the complainant.  Though she told the Court that the complaint was false and was made out of personal animosity, the Court accepted that complaint. "The Court disbelieved her version on oath and believed her earlier version despite she telling that it was a lie", John exclaimed.

"This was a case where the victim was on trial and by doing so the Court has overturned criminal law jurisprudence and has completely disregarded the law of the land. This judgment is a travesty which needs to be robustly challenged and I hope and pray that the superior courts will look into it and overturn it", she said in conclusion.

Also Read :  Why Bishop Franco Mulakkal's Acquittal In Nun Rape Case Is Flawed?

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