This Article has been authored by Shruti Avinash, a second year law student at NALSAR, Hyderabad.
The 527-page judgment of the State v. Tarun Tejpal, decided nearly eight years after the incident is causing outrage and evoking criticism, evidently more due to the remarks made by Justice Kshama Joshi, than the acquittal itself. Here, the Goa Sessions Court acquitted the accused of all charges under Sections 376 (2) (f), 376(2)(k), 354, 354A, 354B, 341, and 342 of the Indian Penal Code. While the acquittal is supposedly on grounds of insufficient evidence and reasonable doubt, the Judge has made numerous coloured remarks against the testimony and conduct of the prosecutrix as reasons for disbelief in her allegations. In this article, we examine the pertinent observations of the Court and the implications that any such insensitivity could have for survivors in the Criminal Justice System.
In November 2013, the Tehelka Magazine organized its THiNK fest in Goa. It is the case of the prosecutrix that in the duration of the fest, Mr. Tarun Tejpal (then editor-in-chief of the magazine) raped her on two separate occasions in the guest lifts of the Grand Hyatt Hotel. The prosecutrix had then narrated the incident via email to Ms. Shoma Chaudhary (then Managing Editor of the Magazine). It was after the extensive social media coverage that the Goa Police took suo motu cognizance of the offence allegedly committed by Mr. Tejpal, framing charges. The complaint was lodged by Smt. Sunita Sawant P.I, CID CB, Dona Paula. The accused responded to these allegations with a simple denial of all charges and brought on record that there were disagreements between him and the prosecutrix only on grounds of her professional competencies.
The survivor levelled allegations to the tune of ‘wrongful restraint, wrongful confinement, assault, sexual harassment and rape by a person in position of authority or control’, wherein Tejpal, in his initial apology to the prosecutrix (which the Court dismissed as ‘coerced’) described the incident as a ‘Drunken Banter’ and a ‘Sexual Liaison’ which he assumed was consensual. The Court held (¶ 134) that it would not examine the contents of the apology in favour of the accused as she had ‘brought pressure’ on the accused to submit the apology by her ‘claims of trauma and devastation’.
The prosecutrix also stated that she did not directly approach the police as she was afraid of the police. This claim was dismissed by the Court on the grounds that the prosecutrix had previously complained against a Delhi Cop who had molested her.
The Complainant in the present case (PI Sunita Sawant) was berated by the Court for viewing the Hotel's first floor CCTV footage but directing her officer to collect footage only from the ground floor and second floor. The first-floor footage was collected only nine days later due to which the DVR kept in an unsealed room, had no recordings. The Court also stated that the investigation was faulty because PI Sunita Sawant continued to investigate the case despite knowing that a complainant cannot be an investigator in her own case.
Finally, the Court acquitted the accused of all charges because in the opinion of the Court, the prosecution had failed to prove the guilt of the accused beyond all reasonable doubt. The only concession made by the Court during the entire trial was that the accused was indeed in a position of authority and control over the prosecutrix.
Observations of the Court
The observations of the Court have mostly pertained to the conduct of the survivor. The Court made statements related to her sexual history, her past reportage on rape crime and even her behaviour not being one of a victim. Notably, the Bench Held:
‘It is extremely revealing that the prosecutrix's 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’.
Such observations made by the Court have been met with staunch criticism by several women’s activists, lawyers and academicians including Prof. Pratiksha Baxi, Vijaya Rahatkar, Sandhya Gokhale and others. They contend that the Court had indeed put the survivor on trial rather than the accused and proceeded to question her sexual antecedents while treating the accused as the victim.
The Judgment was high-handed to the extent that it did not bother to redact information related to the victim’s identity, which is violative of the guidelines issued by the Supreme Court in the case of Nipun Saxena v. Union of India. Moreover, the Court used the social standing of the prosecutrix to colour her allegations as false.
The Court expressed that the survivor ought to have told certain defence witnesses the details of the incident, and it expressed disbelief that she would not suffer any injuries on her body despite throwing up resistance against the accused (¶184). Rather than uphold the rights of the prosecutrix, the Court has used her own credentials to cast doubt on her testimony. It was held (¶186):
‘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...’.
Among several views expressed on this approach of justice is that the Court took a very archaic definition of ‘rape’ into account. When, in fact, it ought to have examined the survivor’s experiences and education as being a reason for her lack of normative ‘shock’, ‘trauma’ and ‘scared’ behaviour. While there are people who disbelieve the survivor’s account of events, it is generally agreed that the observations of the Court are a travesty for the domain of gender justice and women’s rights.
The sexual history of the prosecutrix, her views on pre-marital consensual sexual intercourse, her intimate sexual relationship with a certain defence witness (DW4) were repeatedly referred to in the defence’s submissions on the pretext of highlighting contradictions, while in fact, they were bound to adversely affect the perception of the Court. Here, the defence succeeded in creating a bias against the prosecutrix for her sexual past in the guise of disproving her account, which has proven prejudicial to her case.
A Claim of Innocence
The accused and his family members have continued to maintain that he is innocent. In the letter written by Cara Tejpal (daughter of Tarun Tejpal) to Siddharth Vardarajan of ‘The Wire’, she has underscored the ‘injustices’ meted out to her father. This includes inappropriate statements made on the case by the Chief Minister(s) of Goa and the State’s prowess being invoked to persecute a single person. She has argued that the Solicitor General of India representing the State of Goa in the appeal against Tejpal’s acquittal in these times is questionable. The second most senior law officer in the country is being summoned to prosecute Tarun Tejpal when there are more pressing legal issues in a system suffering the impact of the pandemic. She provides this subtext to highlight that the entire case against her father has been a result of the State’s pushback to his journalism, which was at odds with the ruling party.
The State of Goa has appealed the decision in the High Court of Bombay at Goa and kept the point of retrial open. It has stated that the Additional Sessions Court disbelieved the survivor due to its notions of an ‘ideal victim’ and that its findings were ‘unsustainable in law and is coloured by prejudice and patriarchy’. Notably, here the emphasis is on the grounds of acquittal (the behaviour of the prosecutrix and a faulty investigation) rather than on the guilt of the accused. The approach of the Sessions Court in categorically disregarding the survivors allegations on grounds of ‘material contradictions’ and in refusing to scrutinize the accused’s emails was described by the Goa Government as ‘pedantic, illogical and harsh’.
The High Court of Bombay at Goa also held that there is a case for considering leave for appeal because the verdict is akin to a ‘manual for rape victims’.
The verdict appears to be antithetical to decades of forward thought in approaching the guilty in rape crime. It is evident that such an adverse treatment of victims/survivors is bound to dissuade persons from reporting rape and sexual assault for fear of facing character assassination, bias and blame. While it would not be appropriate to evaluate the merits of the case, it appears that one must fault the verdict for its comments and parameters rather than the acquittal handed to Mr. Tejpal.The repercussions of this decision and the tangential remarks of the court are far wider than the merits and demerits of the survivor’s allegations. At present, the judgment considerably stains the criminal justice system’s handling of rape cases.