The Kerala Nun Rape case: Credibility of the Survivor 

TRIGGER WARNING: The following content contains information on sexual abuse that some readers may find disturbing.

In a recent case, the Additional Sessions Judge of Kottayam (Kerala) acquitted a high-ranking Church official from rape charges alleged against him by a nun. The nun, from the Missionaries of Jesus convent in Kuravilangad, had accused Franco Mulakkal, the Bishop of Jalandhar of raping her 13 times during his visits to the convent between 2014 and 2016. Even though there are several irregularities in this judgement, let’s focus today on the fact that the Sessions Judge discarded the testimony of the survivor in its entirety.

What did the Sessions Judge observe about the survivor’s testimony? 

The Sessions Judge rejected the survivor’s testimony on the ground that her claim that she was raped on 13 occasions under duress, cannot be relied on due to inconsistencies in her statement. 

One of the main inconsistencies the Judge pointed out was that she had failed to mention that penile penetration occurred in her First Information Statement to the police and in her statement to the doctor examining her. At that stage, she had only mentioned that the accused had inserted his fingers into her vagina, had attempted to thrust his sexual organ into her mouth and had forced her to hold his sexual organ. At a later stage, when her statement was recorded before the Judicial Magistrate, she mentioned penile penetration for the first time. The Sessions Judge held that this discrepancy was not explained by the prosecution during the trial. 

Why did the Sessions Judge reject the survivor’s entire testimony?

The Sessions Judge relied on a Supreme Court decision in Jayaseelan v. State of Tamil Nadu where the Court held that even if there are untruths in the statement of a witness, the court should try to separate the truth from the falsehood. However, where this separation is not feasible and in the process of separation, a completely new case has to be made, the only option is to dismiss the evidence of the witness in its entirety. Applying this, the Judge rejected the entire testimony of the survivor. 

Was the Court correct in rejecting the entire testimony of the survivor?

In the acquittal judgment, the Sessions Judge considered only a few lines from the Supreme Court’s decision in Jayaseelan, without considering other observations. In Jayaseelan, the Supreme Court distinguishes between normal discrepancies and material discrepancies in the evidence of a witness. 

‘Normal discrepancies’ are those which are caused by normal errors of observation, of memory due to passing of time, of mental state such as shock and horror at the time of occurrence. These discrepancies are always there however honest and truthful a witness may be. ‘Material discrepancies’ are those which are not normal and not expected of a normal person. The Supreme Court has earlier stated that while normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do. An example of material discrepancy is where the witness who had given evidence before the court wants to change their mind and is prepared to speak differently at a later stage.

In the present case, though the survivor failed to mention penile penetration in her First Information Statement, she clarified that she had no faith in the female police officer recording her statement. This can be attributed to shock and horror, fear of what had happened to her and can only be considered a ‘normal discrepancy’. Such a discrepancy in the statement would not make the survivor’s entire statement inconsistent. 

In the present case, the Sessions Judge failed to make these distinctions. The Sessions Judge incorrectly rejected the survivor’s entire testimony while acquitting the Bishop. The prosecution can appeal the acquittal before the Kerala High Court on this basis.