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Allowing Bail To Rape Convict Ex-Priest To Marry Survivor Will Be A Mockery Of Justice: Activists' Plea In Kerala HC

Viswajith Anand
24 July 2020 1:15 PM GMT
Allowing Bail To Rape Convict Ex-Priest To Marry Survivor Will Be A Mockery Of Justice: Activists
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Stating that allowing the plea of rape convict Robin Vadakkumcheriyil, ex-priest of Catholic Church, to suspend the sentence to marry the rape survivor will set a bad precedent, an activist and a Christian feminist organization have filed an application in the High Court of Kerala.

The applicants, Goerge Pulikuthiyil, an advocate-activist and Brinelle D'souza, founding and core committee member of Voices Against Sexual Abuse in the Church (VASAC) stated that, if Robin's bail application is allowed, then it will set a bad example and open the door for many such men to force or coerce their victims into a compromise in order to escape the rigours of law

"The relief at this stage citing his desire to marry the victim, it will open the door for many such men who commit the offence of rape or aggravated sexual assault to force or coerce their victims into a compromise in order to escape the rigours of law. Such practices have been categorically looked down upon by the Hon'ble Supreme Court, and must not be encouraged in any judicial proceeding or stage", stated the impleading application filed in the criminal appeal filed by Robin.

The applicants pointed out that the intention to marry the victim was already addressed and rejected by the trial court while sentencing him to 20 years imprisonment for the rape of a minor girl.

"It is submitted that this Hon'ble Court must disallow the Appellant's attempt at a notional marriage by rejecting the prayer for interim bail, as the same would not be in the interest of justice and would result in an abuse of the process of court", the plea stated.

"Given the skewed power dynamics and the nature and history of the case, the possibility of the victim's consent being vitiated by fear, intimidation or trauma cannot be ruled out - an apprehension that received judicial recognition by the Hon'ble Supreme Court in Shimbhu (Supra). In view of the same, it is submitted that this Hon'ble Court must disallow the Appellant's attempt at a notional marriage by rejecting the prayer for interim bail, as the same would not be in the interest of justice and would result in an abuse of the process of court", said the plea.

A scheming tactic to overwhelm judicial process

The applicants stated that the "love" professed by Robin at this stage for the survivor is a shady tactic adopted to escape from the clutches of judicial proceedings.

"The averment that the Appellant has intense love for the prosecutrix, is a scheming tactic to overwhelm the judicial process, as the records of the case speak to the complete disregard shown by the Appellant for the prosecutrix ", the plea stated.

The application further stated that the accused is in his fifties and there exists a considerable age difference between the accused and the victim. Also, the accused was a Vicar, who enjoyed unparalleled patronage and support within the local community, especially among the believers in the congregation. If the bail is allowed, the accused will influence the victim, who is studying outside the state of Kerala , alleged the applicants.

The applicants stated that the convict has shown no compassion towards the victim; instead, he utilised his power and authority to influence the victim and efface the evidence for his own benefit during the trial.

"The trial court has categorically arrived at the finding that the prosecutrix was a minor at the time of the incident of rape / aggravated sexual assault. The Appellant, now in his 50s, was in a position of such authority and control that out of fear of the consequences of telling the truth, the victim had to falsely accuse her father of rape, and the parents of the victim also deposed falsely in court regarding the prosecutrix's age. There is nothing on record to demonstrate that the Appellant ever cared about the prosecutrix or her well being. The subterfuge being attempted by the Appellant in camouflaging the interest to avoid his stay in prison as a sign of love must not be allowed to pass, as the same would be a mockery of justice", the plea stated.

The application, drafted by Advocate Vrinda Grover, has been filed by Advocate P.Chandrashekar.

The Bail Application filed by Robin has come on Friday before the Court. A bench of Justice Sunil Thomas has adjourned the matter to August 4, 2020 for the hearing of both the Bail Application and the Impleading Petition.

The Additional sessions Judge-I, Thalassery, through the judgment dated 16-02-2019, has convicted Robin for the offence of rape under Indian Penal Code and POCSO Act , and sentenced him to rigorous imprisonment for 20 years on each count along with fine.

Supreme Court's observations

The applicants asserted that any leniency shown towards a rape convict on account of his offer to marry the victim is anathema to law and has no place inside courtrooms.

Reliance was placed on the following SC decisions.

Shimbhu vs State of Haryana(2014) 13 SCC 318, where it held: "Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at [pic]between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) IPC."

State of MP vs Madanlal (2015) 7 SCC 681 has held: "We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility."

Background

Robin was the vicar of St.Sebastian's Church, Kottiyoor, Wayanad District, when the crime occurred. The victim gave birth to a girl child in February 2017.

During the trial, an attempt was made by Robin's defence team to argue that the girl was impregnated by her own father. However, the DNA of the child, which clearly attributed paternity to Robin, acted a clinching piece of evidence, resulting in his conviction.

He was arrested by police in February 2017 on his way to airport in an attempt to flee to Canada.

Last week, he moved the application seeking suspension of sentence to marry the survivor.

In his plea, Vadakkumcherry said the only impediment to the marriage was his priesthood and now he is eligible for entering wedlock as he had been dispensed with priestly duties and rights by the Pope and has been reduced to the state of a layman.

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