New Delhi: In its judgment acquitting former Tehelka editor Tarun Tejpal of rape charges, a Goa court found several faults with the police’s investigation of the complaint but also made controversial remarks regarding the woman’s behaviour, saying it was not indicative of sexual assault.
Additional sessions judge Kshama Joshi had acquitted Tejpal on May 21, but the 527-page verdict became available only on Tuesday.
The case against Tejpal was that he sexually assaulted the woman, a junior colleague, inside an elevator of a hotel in Goa on November 7 and 8, 2013.
According to Bar and Bench, the sessions judge in her verdict reasoned that the deposition of the prosecutrix (survivor) showed “improvement and material contradictions and also had omissions and change of versions which did not inspire confidence”.
The court found “glaring contradictions” in the statements made by the woman, which the investigating officer (IO) did not question her about.
Judge Joshi said crucial evidence in the form of CCTV footage was missing and not produced before the court. She said that the IO “gave directions to other investigating officers to download CCTV footage only of the ground floor and second floor and not of the first floor so as to deliberately destroy all traces of CCTV footage of the first floor”.
According to Bar and Bench, the judgement says:
“The IO viewed vital CCTV footage of the guest lifts on the first floor and knowing that the said CCTV footage shows the accused and prosecutrix exiting the lift during the relevant two minutes on the first floor and that the same would exonerate the accused and despite the fact that the DVR containing the CCTV footage should have been attached by the IO at the earliest to preserve the crucial footage, deliberately delayed the seizure of the DVR and in the meanwhile destroyed the CCTV footage of first floor, thereby destroying clear proof of the accused’s defence.”
The court also referred to the “formal apology e-mail” sent by Tejpal to the woman on November 19, 2013, saying it was not sent voluntarily. The prosecution relied on this email, but the judge ruled that it would not be admissible.
According to the Indian Express, the court said: “The personal apology was not sent voluntarily by the accused but that it was sent due to the explicit pressure and intimidation by the prosecutrix on PW45 (Prosecution Witness 45, then managing director of Tehelka) to act swiftly and also due to the inducement and promise made by the prosecutrix to PW45, which in turn was communicated to the accused, that the matter would be closed at the institutional level if the accused were to tender an apology.”
The judge accepted Tejpal’s contention that the email was sent “involuntarily and against his wish” and would be inadmissible under Section 24 of the Indian Evidence Act, which renders a confession irrelevant in a criminal proceeding if it is caused by inducement, threat or promise.
The court also found no medical evidence to support the woman, but that there were “facts” that “create doubt on (her) truthfulness”.
Controversial remarks on woman’s behaviour
The court also held that the complainant “did not demonstrate any kind of normative behaviour” that a victim of sexual assault “might plausibly show”. It said the woman’s messages to the accused “clearly establish” that she was neither “traumatised nor terrified” and this “completely belies” the prosecution’s case.
“It is extremely revealing that the prosecutrix’s (victim) account neither demonstrates any kind of normative behaviour on her own part – that a prosecutrix of sexual assault on consecutive two nights might plausibly show nor does it show any such behaviour on the part of the accused,” the judge said, according to the Indian Express.
The court said it was “unnatural” for the woman to message Tejpal about her location in the hotel. “If the prosecutrix had been recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location, when she could have reported to (three women)…” the court said.
That the woman sent these messages to Tejpal “proactively without any attempt by him to ask her where she was” thrice in the span of a very few minutes, “clearly establishes that the prosecutrix was not traumatised nor terrified of being located or found by the accused”, the judge said. This, she added, “completely belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again”.
The court’s observations on how the woman should have behaved if she was ‘traumatised’ or ‘terrified’ have come under fire from activists and lawyers.
The #TarunTejpal acquittal order reads like a primer on how not to handle a sexual assault allegation. From finding fault with the woman’s reaction to not finding her to be sufficiently traumatised, blaming her for not remembering irrelevant details – its all there. Shameful
— Mihira Sood (@mihira_sood) May 26, 2021
In the past also, when courts have made assumptions on how a survivor of sexual assault should behave, the language used by judges has come under criticism, saying it borders on blaming the victim. In 2016, when the Supreme Court acquitted persons convicted in a gang rape case after disbelieving the woman due to her behaviour, lawyers said expectations of ‘usual behaviour after rape’ are misguided.
At the time, lawyer Vrinda Grover told The Wire that the judgment “goes back to putting the spotlight on the conduct of the women victims”.
“To believe that there is a predictable way in which a rape victim will react is in itself a myth and a falsity. Our imagination I fear has been shaped to a large extent by Bollywood cinema, which depicts rape as a fate worse than death. Whereas studies and documentation show that there are no laid out parameters of how a rape victim will react,” she said.
“The court clearly thinks there is a certain way you should look after a rape,” lawyer Flavia Agnes told The Wire. “And this played an important role in their minds. I find that extremely problematic.”
According to the Indian Express, the judge answered only one of the key points raised during the trial in the affirmative: that the prosecution had proved that the accused was a person in a position of trust or authority and in a position of control or dominance over the prosecutrix.
“The other issues, including whether Tejpal had committed rape, used criminal force to outrage the victim’s modesty or whether he had wrongfully restrained her from exiting the lift, were all answered by the court in the negative,” the report said.
The court concluded that the prosecution had failed to discharge the burden of proving Tejpal’s guilt beyond reasonable doubt and, therefore, acquitted him. The journalist was directed to furnish a personal bond and surety of Rs 20,000 in force for six months to appear before the higher court as and when a notice for appeal against the judgment is filed.
Meanwhile, Goa on Tuesday challenged the trial court’s verdict before the Goa bench of the Bombay high court. The state’s chief minister Pramod Sawant had said his government would file an appeal against Tejpal’s acquittal as it was “confident that there was evidence” against him.