This piece seeks to critique the Bishop Franco Mulakkal v. State of Kerala by highlighting its contravention of multiple judicial precedents through its reliance on the principle of Falsus in uno, Falsus in omnibus (false in one, false in everything) where the Court rejects the entire testimony of the victim on the basis of certain material discrepancies, which has been established to not apply in criminal cases in India. Furthermore, this piece evaluates the seven principal rationales averred by the court to discredit the testimony of the nun. It attempts to highlight the fallacies in how the court rebukes a victim for not following the rape script as established by the society.
A Callous Disregard of Judicial Precedents
The trial court in the aforementioned Bishop Franco case applied unreasonably high technical standards to discard the victim’s testimony, which belied against various norms on victim testimony established by the judiciary. The Additional sessions court at Kottayam highlighted a minor discrepancy (if indeed it can be called a discrepancy, which I will argue against) to vitiate the entire testimony of the nun. For this, the judge relied on the principle of Falsus in Uno, Falsus in Omnibus as mentioned above, however, this principle has been repudiated in Ranbir v. State of Punjab where the court categorically held that this maxim would not be applicable in India. It further pointed out that if one element of the testimony of the victim appears to be false, it is the duty of the court to peruse the rest of the evidence with caution and care and take a holistic view of the case. It maintained that it was the court’s responsibility to maintain the case to the “extent it is considered safe and trustworthy”. Therefore, rather than taking a binary view of true-false, it must consider the testimony as a whole. In fact, in Ugar Ahir v. State of Bihar, the court went so far as to state that “Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishment.” Hence, if there is an element of falsity or exaggeration in that testimony, that cannot allow the court to disbelieve the entire testimony or the prosecution to create its own version of events by selecting the elements they want to accept while ignoring the material facts. Moreover, In the State of Punjab v. Hari Singh, Supreme Court observed that considering the very nature of human testimony, the court must extract the “residue of truth” from the entire testimony, and half-truths or imagination cannot be the basis to de-valorise the testimony per se.
The court, goes completely against this established judicial position by concluding that the statement of the nun was ‘false’ or a ‘half-truth’ and is inaccurate and oblivious to human nature. The contention being, that in 2016 the sister (PW1) had stated to her fellow sisters PW3 and PW4 that she “will have to share the bed” with the Bishop when he arrives at the convent they were residing in, which led to PW3 and PW4 testifying that PW1 had told them that the accused had raped her. According to the court, this discredited the testimony of PW3 and PW4 since being forced to share the bed could not be considered the same as rape or sexual violence. Puzzlingly, it appears that the court here took the phrase “share the bed” perhaps too literally. It would appear to be implicit, as it seems to have been to PW3 and PW4 that “having to share the bed”, said in the context of a person of authority would indicate forcible sexual relations. It needs to be noted here, that for nuns practising chastity, openly talking about sexual penetration and rape is considered to be taboo, and therefore it would be likely for them to use a euphemism such as “having to share the bed”. Studies by Mabry, Wells and numerous other psychologists have indicated that the use of euphemism for taboo words, especially of a sexual nature is generally a function of social circumstances. In fact, PW1 had used the same terminology (forced to share the bed) to complain about the rape to the committee of which PW 6 (Bishop Kurain) was a part. This buttresses the idea that PW1 used the phrase “share the bed” to allude to the rape only, and not merely literally sharing a bed with the Bishop. Hence, in the context of a colloquial conversation between nuns, it is likely that taboo words like “rape” or “sexual penetration” could be substituted for more socially appropriate euphemisms like being forced to “sharing the bed.”
Following a Well Choreographed Rape Script
Another rationale given by the court in discrediting their testimonies was that PW3 had stated in an interview that she “came to know the details” only in 2016 after registration of the FIR. The court observed that this statement contradicted her testimony that PW1 had informed her of the rape earlier. This observation appears to conflate the knowledge of the occurrence of the rape itself with the knowledge of the details of the rape. Logic would dictate that being unaware of the specific details of the rape would not preclude the knowledge of the rape itself. Therefore, this rationale of the court again appears to take an unrealistic view of testimony corroboration. Similarly, another befuddling rationale given by the additional sessions judge was that the nun had “close interactions with the accused on the days, next after the alleged sexual violence.” Considering these interactions as a basis for weakening the testimony flagrantly ignores that such interactions were necessary for the course of employment. She was the “Mother Superior” of the covenant and the chief advisor of the Bishop, and would naturally have to interact with the Bishop as a part of her job mandate. Moreover, the court averred that PW8, who had observed her interactions with the Bishop got “no hint” from her behaviour that she had been subjected to sexual violence, which was considered to further weaken her testimony. This highlights that this judgment remains rooted in victim-stereotyping, evaluating the victim’s testimony through the judge’s own schema of an ordinary rape victim’s behaviour. Therefore, it appears that the assessment of the veracity of the victim’s conduct is being done through a “rape script” of sorts, where the victim is expected to conform to a particular mode of behaviour for it to be considered a “real rape” (Deming et al) Such expectations put an additional ‘burden of performance’ over the pre-existing burden of proof for the victim since the victim has to prove her adherence to those expectations (Satish 2016). Moreover, these expectations tend to be built on rape myths and on socio-cultural prejudices and stereotypes which are highly subjective and have been repudiated in many judicial precedents. Hence, the use of PW8’s testimony of her behaviour to discredit her testimony is highly unreasonable.
The court’s reliance on expected standards of behaviour did not stop with that. The court went on to note that the victim filed the case after a two-year delay, only after allegations of having sexual relations with her cousin’s (PW16) husband came up (which were later proved to be false). Incredibly, the court used the fact that she only filed the FIR post the allegations to imply that her FIR, and consequently the testimony may not be genuine. The allegations of the nun having sexual relations with a different person can hardly be considered germane to the rape issue at hand. Moreover, in Tulsidas Kanolkar v. State of Goa, it was held that delay in filing FIR cannot be a reason to repudiate the case of the prosecution, especially in cases of sexual assault due to the multiplicity of factors that make it difficult to report those cases as per State of Himachal Pradesh v. Prem Singh, which calls to question the relevance of the aforementioned observation by the court.
Another ground for the discrediting of the nun’s testimony was that she had not explicitly referred to ‘penile penetration’ in her FIR, the court ‘reasoned’ that this was at odds with her claim that she was raped. However, this is fallacious on two grounds. Firstly, as per Motiram Padu Joshi v. State of Maharashtra, omissions in FIR do not vitiate the case of the prosecution. Secondly, even though in The State v. Makund Harijan, it was laid down that omission of important facts is to an extent relevant under Section 11 of Evidence Act in judging the veracity of the prosecution testimony it does not affect the nun’s testimony. This is because in the FIR she had explicitly mentioned that there was the insertion of fingers into her private parts. This is germane because post the 2013 amendment of Section 375 of the Indian Penal Code non-penile insertions were also brought within the ambit of rape. Therefore, the omission of penile penetration would not be a significant omission since the FIR includes non-penile penetration which is now recognized as rape.
Un-mitigating Circumstances: The Abuse of Authority
The court, confoundingly, attempted to compare the testimony of the victim through reliance on their text messages to each other. The victim had claimed that the Bishop had intimidated and threatened her to yield to a sexual relationship. The court then relied on the text message by the Bishop, claiming that it was in no way threatening, and consequently discredited her statement. The statement by the Bishop being “I want to see you, I want to need you, call me.” There are two errors in the court’s ‘reasoning’ apparent on the face of it. Firstly, it assumed limited text messages to be representative of their relationship. Secondly, it ignored the fact that the Bishop was in a position of authority and there was an imbalance of power between them. Therefore, a message which seems non-threatening to an observer would still appear intimidating coming from a person in authority, who from the point of view of the victim had already raped her earlier. It is pertinent to note that being in a position of authority, as under Section 376C of the IPC, has crucial legal consequences on the court’s analysis that there may have been a valid consent from the nun to the Bishop. This becomes important as unlike S. 375, Sec. 376 provides for punishment in case of rape where the perpetrator is in a position of trust and authority and is known to the victim which points towards a bigger problem in India. Several judicial decisions have held that consent obtained through abuse of dominant position is not valid consent. Furthermore, as pointed out by Manu Sebastian, the Court appears to have overlooked the fact that Section 114A of the Evidence Act assumes an absence of consent in rape cases, which would place the burden of proof on the defendant, not the prosecutrix, to show consent.
The court’s reliance on the allegations by her cousin Jaya (PW16) did not stop there. While corroborating the nun’s testimony with medical evidence, it was found that the nun’s hymen was indeed broken. Instead of considering that as corroboration of the nun’s claim of penile and non-penile penetration, the court cited the earlier allegations of the nun having an affair with PW16’s husband to be a reason for her hymen to be broken, thereby discrediting that evidence. The court seemingly ignored the fact that those allegations had already been withdrawn in totality by PW16 and were therefore irrelevant for the proceedings. Relying on already withdrawn allegations with no evidential substantiation appears to be closer to a character trial than a rational consideration of alternate arguments. This violates Section 53A of the Indian Evidence Act which clearly lays down that in cases involving rape the past sexual instances and character of the women are irrelevant. Moreover, the legislative intent behind this provision is especially clear when we consider that through the 2003 amendment of Section 155(4) of the Indian Evidence Act, was omitted which permitted the use of character evidence against the prosecutrix. In that light, reliance on already withdrawn allegations of the nun’s past sexual conduct appears to be not only illogical but also patently unlawful.
Hence, it is essential for the judiciary to display sensitivity while examining the testimony of rape survivors and must avoid getting “swayed by minor inconsistencies.” Moreover, this piece showed how even the ‘minor inconsistencies’ were brought about due to the court’s insistence in attempting to fit the testimony within their own schema of how rape victims should behave. Therefore, it is the need of the hour for the judiciary to avoid evaluating a rape survivor’s testimony through the parochial “rape script” which has become all too common.
Nidhi Agrawal is a current undergraduate student pursuing a B.A., LL.B. (Hons.) at the National Law School of India University (NLSIU), Bengaluru.
The image used is an original illustration by Nidhi Agrawal.