This is the second part of an ongoing series which examines the Tejpal judgment from an evidence law perspective. Part 1 can be found here.
The promiscuous prosecutrix, a ravished woman with a misplaced moral compass, is a long-running trope in rape discourse. Complainants, despite their obvious reluctance, are often cast in this role by the accused.
Earlier, such conduct was encouraged under the direction of Section 155(4) of the Indian Evidence Act, as it then stood, which provided that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character” with a view to impeaching her credibility as a witness. It is noteworthy that the opposite is true for the accused – whose “good character” is relevant under Section 53, but “bad character” irrelevant under Section 54.
For her searing performance in the Mathura rape case, where she portrayed a woman “habituated to sexual intercourse”, the Promiscuous Prosecutrix won an acquittal for the accused. This prompted a change in the script in the year 1983, with the addition of Section 114A in the Evidence Act, whereunder consent is presumed to be absent in a prosecution for rape.
Almost two decades later, the Indian Evidence (Amendment) Act, 2002, finally deleted Section 155(4) from the statute. Simultaneously, Section 146, which governs what questions can lawfully be asked of a witness in cross-examination, was modified to make it impermissible, in a prosecution for rape, to cross-examine the complainant as to her general moral character.
It took another decade and the brutal Nirbhaya rape incident for the Criminal Law (Amendment) Act, 2013, to be passed, ushering in much-needed reforms in the penal laws. Tarun Tejpal’s prosecution for rape was made possible only because of the expansive changes made by it to Section 375 of the IPC to include, among others, forced oral sex and insertion of an object or body part (other than the penis) into the vagina.
Significant alterations were also made to the Evidence Act with the addition of Section 53A:
“53A. Evidence of character or previous sexual experience not relevant in certain cases.- In a prosecution for an offence under section 354, section 354A, section 354B … section 376 … or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”
The proviso to Section 146 was also further modified:
“Provided that in a prosecution for an offence under section 376 … or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”
These provisions are relevant in the Tejpal case since he was accused of all the above offences.
If one had hoped that these amendments had hammered the last nail into the coffin of the Promiscuous Prosecutrix, one would be overly optimistic. Not content with languishing in the archives, like any entrenched stereotype with an iota of self-respect, she makes a hard-hitting comeback in the Tejpal saga. She overpowers the judge’s own acknowledgement that “immoral character or previous sexual experience of the victim is not relevant for deciding such cases”, and the setback of several reams of evidence being discarded as a consequence thereof.
Thinly veiled, she makes her presence felt when the judge inexplicably holds that consent is not in dispute since Tejpal has denied the incident [Para 238], ignoring Tejpal’s apologies to the complainant where he tries to depict the sexual liaison as consensual. This leaves the door wide open for the Promiscuous Prosecutrix to pervade this entire choose-your-own-sexual-adventure story.
To say that the judgment is peppered with graphic references to the complainant’s supposed sexual past is grossly understating the case. The pepperiness is so pungently overwhelming that one can barely taste anything else.
Alleged intimacy with a Hollywood actor
The alleged incident between Tejpal and a young woman employee on November 7 and 8, 2013 occurred in Goa while his Tehelka magazine was conducting the THiNK Fest 2013. A Hollywood actor was the chief guest and the complainant was his chaperone throughout the event. The complainant was ostensibly in this actor’s suite between 1:05 am and 2:30 am on the night of November 8, 2013 (the date of the second alleged incident) and between 11:30 pm to 12:05 am on the night of November 9, 2013.
The complainant insisted that she was there to discuss his itinerary and other details. However, DW 1, a friend of hers, deposed to certain WhatsApp chats sent by the complainant on the morning of November 9, 2013, which supposedly indicated that she had been intimate with the actor the night before.
After much brouhaha about the omission of these late-night visits from the complaint that the young journalist made to her managing editor, the judge concludes that her explanation of the purpose of visiting his room “at an unnaturally late hour” must be a “fabrication”, and extrapolates that “These sexual encounters on both nights are stunning and absolutely indisputable evidence that the prosecutrix’s assertions about her sexual assault.” (sic). The judge leaves her sentence unfinished, but it would be safe to assume that the missing word is either “false” or “fabricated”.
The Public Prosecutor’s objection that DW 1 was examined “to indulge in victim blaming / shaming” is held to be “misplaced” since the witness “appears to have been examined to prove the WhatsApp chat” and “absolutely made no comment on the general immoral character of the prosecutrix, except for hard facts spoken of by the prosecutrix in the chat”.
Whether the complainant’s WhatsApp messages were hyperbole or “hard facts”, her supposed intimacy with this celebrity falls, if not within the bracket of “general immoral character”, squarely within the ambit of “previous sexual experience”, evidence of which is expressly precluded by Section 53A and the proviso to Section 146. In addition, this is completely irrelevant to determine whether or not she was sexually assaulted by Tejpal. She is therefore not guilty of suppressing any material fact if she chooses to remain silent about this in her complaint.
The ‘drunken banter’
Tejpal had sent a personal apology to the young journalist on November 19, 2013, wherein he had claimed that on the night of November 7, 2013 (the night she was allegedly raped), she flirtatiously volunteered stories about her sexual relations with an Irish rockstar, her inability to remain faithful to her boyfriend and the aftermath of meeting Tejpal in his office one stormy evening which aroused her.
This lays the groundwork for Tejpal’s defence of “drunken banter” and for the complainant’s sexual experience with the rockstar being described in voyeuristic detail by a particular defence witness, Nikhil Agarwal [DW 4]. DW 4 states that he met the complainant on the night of November 7, 2013 (immediately after the alleged incident) and in the afternoon of November 8, 2013, and that she had told him about the supposedly flirtatious conversation.
Once again, the objection to this deposition as being hit by Sections 155, 53A and 146 is rejected by the judge on the basis that “…the above provisions would not apply as the witness is deposing to the facts which are relevant to decide the main issue in question and do not pertain to proving consent or the character” [Para 161]. If only the judge had been so kind as to enlighten us about how explicit details of the complainant’s supposed sexual encounters in the past are pertinent to the question of whether or not Tejpal had committed any offence.
On closer examination, the reason for the rockstar escapade being narrated in such exacting detail appears to be to attempt to explain away the message “the fingertips” sent by Tejpal to the complainant on the night of November 7, 2013 (soon after the alleged incident). The complainant has stated, on oath, that this message buttresses her allegation of rape, whereas Tejpal’s version is that he was merely responding to a question in relation to her tryst with the rockstar.
Only the complainant and Tejpal are competent to give testimony regarding (a) whether there was drunken banter between them, (b) what was said by either of them while bantering, and (c) the context in which the text message was sent by Tejpal. The deposition of any other witness, who is not directly privy to these events, but claims to have heard about it from either party, is inadmissible as hearsay (which is a lesson for another day but has been explained in detail by V. Venkatesan). Since Tejpal himself never stepped into the witness box, the only purpose served by eliciting, recording and discussing depositions of other witnesses on this aspect, is to embarrass the complainant by bringing up her supposed sexual past.
Other private messages
Innumerable private messages sent by the complainant to various people, which have no connection whatsoever with the incident itself, have also been taken into consideration to hold that it was the norm for her to have “flirtatious and sexual conversations with friends and acquaintances” and that this “propensity” goes to prove that she had a flirtatious conversation with Tejpal on the night of November 7, 2013.
It is later clarified that these messages are “not for the purpose of proving the character or consent of the prosecutrix as regards to the allegations of rape or sexual assault but for confronting her and to show her relationship/ friendship which the prosecutrix had denied or had disclosed that they are acquaintances” and also to “contradict facts which the prosecutrix had denied or suppressed other than her immoral character or consent”.
For instance, the prosecutrix had stated in her cross-examination that DW 4 was not a very close friend of hers. Literally thousands of messages exchanged between them were relied on to disprove this and show that they, in fact, had a sexual relationship in the past. Her understandable discomfiture on the subject is interpreted as her twisting and manipulating the truth in a “brazen attempt” to “obfuscate” and “conceal” her real relationship with DW 4.
The judge condones the usage of these chats as they are “only to be read against her claims on oath that … was a mere acquaintance/ casual friend, and the purpose of producing the evidence of these chats is to show that the Prosecutrix is lying and that the chats were not referred for the purpose of proving her character. It is difficult to believe that the prosecutrix is a truthful and reliable witness.”
I fully empathise with the victim, whose phone was seized as part of an investigation which she did not herself initiate, and subsequently utilised as a tool to humiliate her. When she raised the issue of invasion of her privacy, it was misconstrued as her trying to “hide something”.
At this juncture, I must mention two very important provisions of the Evidence Act. One is Section 138, which requires examination and cross-examination of witnesses only in relation to relevant facts. The second is Section 153 which, in simple words, provides that one cannot impeach the credit of a witness by asking her questions on irrelevant matters and then leading evidence to contradict her answers i.e. show that she is lying. Consider these illustrations to the provision, which do an excellent job of explaining it:
“(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty.
He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.”
Since the complainant’s character and previous sexual experience are irrelevant as per Section 53A and the proviso to Section 146, any questions asked of her which touch upon these subjects are equally irrelevant. Consequently, any evidence to show that her responses to questions on such collateral issues are false, is inadmissible under Section 153. Therefore, even if she was evasive about her relationship with DW 4, or any other intimate and personal matters which have no bearing on the main issues in trial, that does not tarnish her creditworthiness as a witness or lead to the inference that her account of the sexual assault or rape is untruthful.
These are, by no means, isolated instances. A plethora of material is taken into account to show that she engaged in conduct unbecoming and highly suspect of a rape victim since she partied into the wee hours of November 10, 2013, consumed alcohol, looked cheerful in photographs, spent the night with a male journalist, stayed back in Goa after the Fest to dalliance with her “Russian boyfriend” and chose to confide in three male colleagues about her alleged sexual assault rather than her female roommates or her mother. These individual strokes tie in neatly to paint a larger picture of this complainant as the Promiscuous Prosecutrix.
I understand that the state of Goa has, in its appeal against this judgment before the Bombay high court, prayed that the offending portions of the judgment be expunged. However, the Promiscuous Prosecutrix is so closely interwoven into the fabric of the judgment that I fear this may be impossible without ripping the whole thing apart.
Bhabna Das is a Delhi-based lawyer and an Advocate-on-Record in the Supreme Court of India.