The acquittal of Tarun Tejpal, former editor of Tehelka, by additional sessions judge Kshama M. Joshi in the case involving an allegation of sexual assault on his junior employee during a literary festival organised by the magazine at a hotel in Bambolin, Goa on November 7 and 8, 2013, is now under appeal before the Bombay high court. The reasons cited by the judge for the acquittal will no doubt come under close scrutiny during the appeal hearing. Such a scrutiny, among other things, is likely to reveal how it is inconsistent with several legal precedents.
This article seeks to examine in depth one key reason which led the judge to disbelieve the complainant, although other reasons cited by her are also dealt with.
DW4 – What he revealed, and what he didn’t
It was the testimony of one defence witness in particular, Nikhil Agarwal, or DW4, which the judgment cites as a key reason for deciding the complainant’s allegations need not be believed. The complainant had described her relationship with Agarwal as one of a mere acquaintance and casual friend. However, the judge cited evidence of her chats with him to conclude she had not told the truth.
These chats, the judgment says, were not referred to for the purpose of examining the complainant’s character. But the judge quantified the number of WhatsApp messages she had exchanged with Agarwal as 4,000 in the previous 15 months, and described the nature of these messages as her “innermost truths and secrets”. Therefore, the judge said, it is difficult to believe that the complainant is a truthful and reliable witness.
If the chats were not referred to in view of the legal bar on dilations about the complainant’s character, it is not clear how the judge relied on the same chats to characterise her relationship with DW4 in a particular way, thus exposing her supposed lack of character, and questioning why she claimed she did not reveal the details of the incident involving Tarun Tejpal to him. The same chats apparently made the judge believe DW4’s deposition which went against the complainant. He claimed, as a witness, that she had told him, shortly after that alleged incident, that she had “flirted” with Tejpal.
The investigating officer (IO) did not investigate DW4. The complainant initially did not mention the fact that she met DW4 after the incident on November 7, 2013, when Tejpal allegedly assaulted her. She admitted that she did remove mention of meeting DW4 from her complaint to the organisation (Tehelka) for several reasons. However, she chose not to disclose those reasons. Her right to silence, in a sense, was used against her by the judge. As a witness, though, the complainant has no legal right to silence.
The complainant claimed that on November 7, 2013, as soon as she and Tejpal made their way from Block No. 7, after the incident, she intercepted DW4, and asked him to stand and talk to her until Tejpal left from there. She told him she was scared of the accused. She stated that she did not disclose the incident to DW4 at that time. She did not meet DW4 voluntarily, but he was present at the lawns. After she spoke to DW4, she left the hotel immediately for the Goa International Centre, where she stayed.
She stated that she could not believe that the incident might be repeated again by Tejpal as she was in shock, and she could not believe that it had happened to her even on that day, and she was not thinking about whether Tejpal would assault her again. Apparently, she was in a state of confusion, as to what she should do next.
In her testimony, the young woman claimed she alerted DW4 – during the brief exchange with him after the incident – that Tejpal had been inappropriate with her, and that she was feeling very scared and uncomfortable. She also admitted that she did not cry in the presence of DW4.
The judge found it utterly unbelievable that the complainant was in shock and trauma moments after she had been sexually assaulted by Tejpal, and that she did not know how to convey or process her feelings then. For the judge, it was unbelievable that she wouldn’t express any emotions to DW4 at that time or let go and not cry in his presence. For the rest of us, however, these are certainly plausible options for someone who has just suffered sexual assault by someone whom she trusted.
The complainant also claimed that DW4 was drunk and swaying at that time, and after a week he did not even remember her conversation with him that day. For the judge, however, DW4 was the first witness she encountered after the incident, and therefore, after having told him that Tejpal was inappropriate with her, she should not have deleted the reference to him in her complaint and all other statements made by her during the investigation. The judge assumes that the complainant must have known the importance of the first witness before making her complaint. This is far-fetched, as even law students, unless they study the literature on res gestae, would not know its legal significance.
The question the judge asked is that if she met DW4 “who was so intimate with her” (something which the complainant did not admit herself) and the sexual assault had just taken place, because of which she asked him to stand with her, why didn’t she express her emotions to him. The judge also notes that if DW4 was drunk, why did the complainant claim that she had alerted him to the fact that Tejpal had behaved inappropriately with her.
One wonders whether the judge understood the feelings the young woman had to cope with immediately after the incident, despite her clear description of her mental state then. Obviously, she did not want to describe the incident to DW4 immediately, but nevertheless wanted his company for security. She also claimed that she “alerted him to the fact that Tejpal was inappropriate with her”.
In her deposition, the complainant did not explain how she alerted DW4 – whether verbally and indirectly or through non-verbal communication, although both or either one of them were possible. Whether DW4 grasped what she conveyed was a different matter altogether. Apparently, he did not. She might not have used the exact words to convey that Tejpal had been inappropriate with her, but apparently she tried to alert DW4 to Tejpal’s behaviour, so that he stayed with her for some time during his presence. Again, if DW4 was drunk and swaying, why should that prevent the woman from asking him to stand with her or conveying that Tejpal had been inappropriate with her, as the judge suggests. One wonders whether the judge was questioning even acceptable norms of behaviour of persons in such situations.
The judge then goes on to use DW4’s testimony about his conversation with the complainant on November 7, 2013, to demolish her version.
DW4 corroborated her testimony to the extent that she did not describe the incident to him as she alleged at that point of time. He further deposed that after separating from Tejpal, she walked towards him and at that time she had a grin on her face, and was smiling and looked very excited. This, too, corroborated her testimony as she claimed that she did not cry or reveal her emotions in DW4’s presence.
At this point, the judge reproduces DW4’s depositions regarding what the complainant told him about her flirtatious conversation with Tejpal in which she allegedly shared details of intimacy with the musician Bob Geldof during the 2012 THiNKFest in Goa. The special public prosecutor (SPP) objected to this deposition of DW4, but the judge overruled it, saying DW4 was deposing to the facts which are relevant to decide the main issue in question, and it did not pertain to proving consent or the character of the complainant.
One does not know the complainant’s response to DW4’s statements about her sexual history, as section 146 of the Indian Evidence Act disallows her cross-examination on this issue. Therefore, DW4’s “so-called” revelations about her past sexual history should have been disallowed by the judge, as the complainant was not in a position to refute it during her cross-examination.
The judge found that DW4’s statement clearly contradicted the complainant’s version that he was drunk and swaying with his glass. But what is it that made the judge believe DW4, and disbelieve the complainant when it was one person’s version against another’s. The judgment offers us no answers. This is despite the fact that the prosecutrix had denied she was shadowing Geldof during THiNK 2012.
The complainant also revealed in her deposition that DW4 did not remember on November 15/16, 2013 that she had told him on November 7, 2013, that she was afraid of Tejpal and asked him to stand with her. DW4, however, claimed in his deposition that he was only moderately drunk at that time, and remembered the conversation with the prosecutrix, which was not as she claimed it was. Based on two conflicting versions of the same conversation between two individuals, it is not possible to conclude who is lying here. But the judge chose to believe DW4, and disbelieve the prosecutrix, without explaining why.
The judge also refers to the messages exchanged between her and DW4 on November 15/16 and infers that he was not aware of anything untoward that had happened to her. But this only corroborated her testimony that she did not reveal the details of the incident to him on November 7 beyond saying Tejpal was inappropriate with her. Even the disclosure of Tejpal being inappropriate with her was not recalled by DW4 after a week, if the complainant is to be believed. But the judge concludes that DW4 was surprised because she had cheerfully and in a state of animated excitement told him about her flirtatious conversation with Tejpal and nothing else.
The judge then reproduces the messages exchanged between DW4 and the prosecutrix on November 8, 2013, and asks what she was referring to when she said that DW4 shouldn’t talk about it to anyone else. Obviously, the fact that she had alerted him to Tejpal being inappropriate with her was something that she did not want to be shared with others at that stage. The messages exchanged on November 8, 2013, do not contradict her claim that he was drunk and swaying and that she did not reveal the details of the incident to him the previous day. Yet, the judge concludes so.
The investigating officer did not record DW4’s statement, despite his letter requesting it, because the investigating police team rightly or wrongly assumed that as it was received after the chargesheet in the case had been filed, therefore, Tejpal might have been behind it.
Why the court erred on res gestae evidence
The judge then goes on to describe the evidence of DW4 as res gestae evidence under section 6 of the Indian Evidence Act. The essence of the doctrine of res gestae is that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, and are relevant, whether they occurred at the same time and place or at different times and places.
This rule is an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statements of fact admissible under section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction.
It is settled law that a statement in order to be part of res gestae must have been made substantially, contemporaneously, with the fact in issue immediately after it and there is no proximity for reflection or fabrication.
In Govindaswamy v State of Kerala, the issue was whether the accused, who was disabled, had committed the murder of the victim, who he had allegedly tried to rape in a moving train, leading to her fall and injuries. Two prosecution witnesses – bystanders in the adjoining compartment – testified before the court in their examination-in-chief that though they wanted to stop the moving train by pulling the alarm chain hearing the victim’s shrieks, they were dissuaded by a middle-aged man – who was standing at the door of the compartment – who claimed that the victim/girl had jumped out from the train and escaped and that she was alive.
The bench of Justices Ranjan Gogoi, Prafulla C. Pant and U.U. Lalit, in its judgment dated September 15, 2016, took the aforesaid part of the deposition as a piece of relevant material for adjudication of the issue before it and held that on the face of the aforesaid evidence, injury No.2, which the victim had suffered, could not be ascribed to the accused. According to the medical evidence placed on record by the prosecution, injury No.1 (the involvement of the accused in respect of which there is no doubt) coupled with injury No.2 had led to the death of the victim girl.
In para 5 of the review judgment on November 11, 2016, the same bench held: “The statement made by the middle-aged man to PWs 4 and 10 being contemporaneous and spontaneous and that also being the prosecution case and no attempt having been made to discredit this part of the evidence tendered, we are of the view that in a case where the liability of the accused is to be judged on the touchstone of the circumstantial evidence the aforesaid part of the deposition of PWs 4 and 40 must go into the process of determination of the culpability of the accused to rule out any other hypothesis inconsistent with the guilt of the accused.”
The bench, in that case, sentenced the accused for rape only and not for murder of the victim, based on the res gestae evidence of the unknown bystander, who was quoted by two witnesses. The unknown bystander contemporaneously told the two witnesses, even though the latter recollected the bystander’s version much later. The Supreme Court bench emphasised the fact that the bystander’s statement to the two witnesses was credible, because it was not disputed by anyone subsequently, and more so, because it was a prosecution version.
Now, compare this case with DW4’s deposition in Tarun Tejpal’s case. First, DW4 could not become a prosecution witness because the prosecution suspected his credentials. Second, his deposition was contradicted by the complainant, whose version of what transpired between them after the incident on November 7, 2013, was different.
In Gentela Vijayvardhan Rao and Anr v State of Andhra Pradesh, a bus was set on fire which resulted in the death of 23 passengers. The statements of two seriously injured fellow passengers were recorded by the magistrate as it was thought that they might succumb to their injuries, in which event their statements could be pressed into service under section 32 of the Evidence Act (cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant). Fortunately, they survived.
But while deciding whether those statements could now be relied upon under section 6, the Supreme Court found that there was appreciable interval between the criminal act and the recording of their statements by the magistrate, and as such, the statements could not be relied upon with the aid of section 6 (res gestae). There was some appreciable interval between the acts indulged in by the miscreants and the judicial magistrate recording the statements of the victims.
That interval, therefore, blocks the statements from acquiring legitimacy under section 6 of the Evidence Act. The high court was, therefore, in error in treating the testimony of the two witnesses as forming part of res gestae evidence, the Supreme Court held in this case.
Compare this again with DW4’s deposition in the Tarun Tejpal case. The deposition itself was recorded much later by the magistrate, and therefore, could not be of much use as res gestae evidence to discredit the prosecutrix.
In Krishan Kumar Malik v State of Haryana, while testing the veracity of the version of prosecutrix that she was subjected to rape, the fact that she had ample opportunity and occasion to disclose to her mother and sister soon after the criminal act, in which case their statements could have lent assurance, was taken into account.
The Supreme Court pointed out that the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which the prosecution had conducted the investigation, and then the trial. “This lacunae has not been explained by the prosecution.” (emphasis added). The prosecution has not tried to complete this missing link so as to prove, beyond any shadow of doubt, that it was the appellant who had committed the said offences, the court said.
Compare this again with DW4’s deposition in the Tarun Tejpal case. The prosecution admitted that it did not get his statements recorded. But it has explained why it did not do so. In view of its explanation, therefore, DW4’s subsequent deposition could not be elevated as res gestae evidence to give the benefit of doubt to the accused.
The judge cites Krishan Kumar Malik, but implicitly rejects the prosecution’s explanation for not recording DW4’s statements, as if it is not credible. The SPP submitted that DW4 claimed that the accused is innocent, and therefore it revealed his partisan nature. The judge says DW4 has reasoned out why he has arrived at his conclusion. DW4 under no circumstance can be a partisan witness as it was the complainant’s claim that she met DW4 immediately after the sexual assault, the judge explains.
Minor contradictions magnified
Material contradiction between the complaint email sent by the young woman employee to PW45 (Shoma Chowdhury) and the statements she made under Sections 161 and 164 of CrPC are relied upon by the judge to disbelieve her. Such glaring contradictions cannot be expected from educated journalists like PW1 and forces the court not to believe the incident of rape, the judge has held. In the email, she said that as soon as the doors of the lift opened, she picked up her underwear and began walking out of the elevator rapidly and the accused was still following her. “Picking up her underwear means that it was taken out of the body and was not just pulled down. Taking off the underwear was not possible since that would require lifting up of the legs of PW1. But in 161 CrPC statement to police, PW1 stated that she pulled up her underwear and began walking out of the elevator rapidly”, the judge notes. To many, however, these two descriptions would not appear as a glaring contradiction.
“It is not believable that the prosecutrix would throw up such resistance and would not suffer any injuries on her body. The prosecutrix has evaded the question of whether she lifted or raised her legs at any point of time during the incident by saying she does not recollect. The prosecutrix has also not explained how she was pushed up against the wall,” the judge says.
However, in a catena of cases, it has been held that the absence of injuries on the victim does not weaken the allegation of rape.
“If the prosecutrix had held her jaw firmly closed how it would be possible for the accused to put his tongue into her mouth? If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed her when she was pushed up against the wall or at least put her hands in between to prevent the accused from coming close. This is a narrative of extreme implausibility and it is not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit (yoga trainer) would not push or ward off the accused if she got pushed up against the wall, especially when she was facing him and especially when she saw the accused coming uncomfortably close to her in her private space,” the judge says.
Retrospectively, it could be argued how a person could have avoided an incident from taking place. But retrospective wisdom very often is elusive to even mature persons, when confronted with a sudden event, which tests their motor skills. The judge seems to be oblivious to this possibility. Besides, if a victim of sexual assault has the ability to keep jaws (and other body parts) “firmly closed”, as the judge suggests, rape would be an impossibility anywhere and everywhere.
“Her explanation that she did not imagine that the accused would try to do such a thing is not believable. She stated that she did not move her face to any side before the accused advanced towards her to kiss her,” the judge says. Her failure to respond to an imminent sexual assault in a particular way so as to prevent it is considered as consensual by the judge.
The complainant stated that she does not recollect if she moved her chin and moved her face when Tejpal allegedly kissed her. The judge considers her answer as evasive. The complainant stated that she twisted her body and turned her body away from the accused when the accused brought his face towards her and that she was constantly struggling against him. She was in complete shock, when the accused kissed her, and she did not in turn push him. However later in cross examination, she said that as soon as the accused kissed her, she pushed him and begged him to stop. She stated that she could not push him very far as he was stronger and taller. These minor contradictions in her testimony have led the judge to disbelieve her.
The voluntary statement of the complainant that she was too scared of the accused and still in shock cannot be believed as she has stated that she was pushing the accused, the judge says. Certain forms of behavioural response can be instinctive, which the judge seems to ignore.
The judge says that at every stage, anomalies, discrepancies, wild inaccuracies, improvements, omissions, contradictions and sheer impossibilities mark the narrative of the complainant, yet the IO and the prosecution have turned a blind eye to them at every stage. A discerning reader, however, will find that the judgment itself suffers from several inconsistencies, which are not explained sufficiently.
Allegations about the complainant’s past sexual history are repeatedly cited in the judgment to show that her inadequate denials about the same amounted to lies. Even if the judge is correct on this, how does it weaken her rape allegation against Tejpal? A judge has to determine whether the complainant’s allegation of rape is credible, and not her denials about her past sexual history. In this, ASJ Kshama M. Joshi appears to be not convincing enough.