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Sunday, June 13, 2021

Acquitting Tejpal, court: Woman did not behave like sexual assault victim

Ruling there was no medical evidence and there were “facts” that “create doubt on (her) truthfulness,” the court 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.

Written by MAYURA JANWALKAR | Panaji |
Updated: May 26, 2021 7:38:52 am
Former Tehelka editor-in-chief Tarun Tejpal outside the district and sessions court in Mapusa, North Goa, on Saturday. (Express Photo)

Acquitting Tarun Tejpal, former editor-in-chief of Tehelka, of the charges of sexually assaulting his then colleague in a Goa hotel in 2013, the District and Sessions judge held that the complainant “did not demonstrate any kind of normative behaviour” that a victim of sexual assault “might plausibly show”.

Ruling there was no medical evidence and there were “facts” that “create doubt on (her) truthfulness,” the court 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.

In her 527-page judgment made available Tuesday, Additional Sessions Judge Kshama Joshi wrote: “Upon considering evidence on record…benefit of doubt is given to the accused because there is no corroborative evidence supporting the allegations made by the complainant girl.”

For the trial court, the woman’s “behaviour” was a key factor that, it said, undermined her 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 trial court observed that it was “unnatural” on the part of the woman to message Tejpal about her location in the hotel where she was chaperoning a prominent US actor.

The woman had complained that Tejpal had sexually assaulted her in the hotel elevator on November 7, 2013, and November 8, 2013. “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.

“The unnatural conduct of the prosecutrix is again relevant under Section 8 of the Evidence Act. The prosecutrix had admitted that there are two SMSes sent from her phone to the accused on 8/11/2013…..and that these messages were not sent by her in response to any messages,” the court noted.

“The prosecutrix sending the above message to the accused proactively without any attempt by him to ask her where she was, and her sending the same message 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 and completely belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again.”

Of the key points raised during the trial, the only one the court answered in the affirmative was whether 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.

About the “formal apology e-mail” sent by Tejpal to the woman on November 19, 2013, that the prosecution relied on, 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. Hence, even assuming that the personal email…was sent to the prosecutrix, the contention of the accused that the email has been sent involuntarily and against his wish, and that would not be admissible against the accused, being struck by Section 24 of the Indian Evidence Act has to be accepted.”

Section 24 of the Indian Evidence Act renders a confession irrelevant in a criminal proceeding if it is caused by inducement, threat or promise.

While the woman had stated that Tejpal had castigated her after she disclosed the incident to his daughter and she had left crying, the court found substance in a claim made by Tejpal about his criticism of her work. “The accused submitted that it is probably after meeting him on November 8, 2013 and after the accused castigated the prosecutrix for dereliction in her duty, the prosecutrix, in paranoia, falsely and maliciously made a disclosure to the accused’s daughter about an alleged sexual assault on her by the accused. The above submission has force and cannot be ruled out.”

The court observed that prior to the lodging of the FIR in the case, the woman had reached out to prominent lawyers, a member of the National Commission for Women and journalists.

“With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has thus rightly submitted that the deposition of the prosecutrix (victim) has to be scrutinized in that angle,” the judge wrote.

The court said: “There are many facts which have come on record which create doubt on the truthfulness of the prosecutrix. There is also no medical evidence on record on account of delay in lodgement of FIR and as the prosecutrix had refused to go for medical examination.”

The court held that the prosecution could not prove that the lift, in which the alleged sexual assault took place, could be kept in motion without its doors opening on each floor.

In December 2020, seven years after the incident, when the woman was cross examined on this, the court said she “completely reneged on her earlier version,” about the accused pressing buttons to keep the lift in motion and claimed she only saw him “pressing a button on the lift panel but has not stated which was the one button that was pressed by the accused”, which created “ambiguity” about the lift being in motion or stationary.

The court found fault in the prosecution’s evidence of CCTV footage and observed that the Investigating Officer (IO) had “deliberately concealed the empirical evidence of the true functioning of the emergency red button from the court though available as it contradicted the prosecutrix’s version and the prosecution case”.

The prosecution, led by Special Public Prosecutor Francisco Tavora, had examined 71 witnesses, while the defence, led by late lawyer Rajiv Gomes, had examined four witnesses in the course of the trial.

Tejpal was acquitted of all charges, including under IPC Sections 341 (wrongful restraint); 342 (wrongful confinement); 354 (assault or criminal force with intent to outrage modesty); 354A (sexual harassment); 354B (assault or use of criminal force to woman with intent to disrobe); 376 (2)(f) (person in position of authority over women, committing rape); and 376(2)(k) (rape by person in position of control).

The Goa government has filed an appeal in the High Court of Bombay at Goa. Chief Minister Pramod Sawant, had said on May 21, “This is injustice meted out to a woman. In Goa, we will not accept this…With the kind of evidence and documents we had in the case, it could not have led to an acquittal. This is very sad.”

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