District and Sessions Court at Panaji: After a trial which went on for 7 years 2 months and 25 days, Kshama M. Joshi, Additional Sessions Judge, Mapusa, acquitted Tarun Tejpal, former Editor-in-Chief of Tehelka, who was accused of committing rape on a journalist working with Tehelka. The court gave benefit of doubt to accused, noting major lapses in investigation and major contradictions/improvements in testimony of the prosecutirx. The incident is of 2013 which allegedly happened during the annual THiNK Fest of Tehelka organised in Goa.
Allegations against the accused
The prosecution’s case was that between 7th and 11th November, 2013 the THiNK Fest was organised by Tehelka Magazine in Goa. It is alleged that during that fest, Tarun Tejpal, the then Editor-in-Chief of Tehelka, had sexually assaulted a female journalist associated with the magazine. It is alleged that he committed the offence of wrongful restraint/confinement, sexual harassment and rape.
The prosecutrix had alleged that on 7-11-2013 (one of the nights of the event) on the pretext of “waking up the American actor Robert De Niro” (the Chief Guest at the festival, for whom the prosecutrix was chaperoning), the accused took her to one of the guest lifts of Hotel Grand Hyatt where he wrongfully confined the prosecutrix using force against her wish and committed rape on her. Further, on the next night of 8-11-2013, the accused took her to another guest lift and again sexually assaulted her.
On completion of police inquiry, the trial court framed charges against the accused of offences punishable under Sections 354, 354-A, 354-B, 376(2)(f), 376(2)(k), 341 and 342 IPC.
Defence of the accused
Case of the accused was of total denial. He submitted that no such incident as alleged took place and that there was a drunken banter between him and the prosecutrix.
Trial Court’s decision
The Additional Sessions Judge of the District and Sessions Court at Panaji determined as many as six questions to return a finding of Not Guilty in favour of the accused. The court answered five out the six questions in favour of the accused:
(a) Whether accused committed rape as defined in Section 375(b) and (d) IPC?
Answered in negative, in favour of the accused.
(b) Whether accused used criminal force to outrage modesty of the prosecutrix?
Answered in negative, in favour of the accused.
(c) Whether accused had physical contact and made advances involving sexual overtures causing sexual harassment to the prosecutrix?
Answered in negative, in favour of the accused.
(d) Whether accused used criminal force with intention of disrobing the prosecutrix?
Answered in negative, in favour of the accused.
(e) Whether accused was in a position of trust or authority and in a position of control or dominance over the prosecutrix?
Answered in positive, against the accused.
(f) Whether the prosecutrix was wrongfully confined in the lift by the accused?
Answered in negative, in favour of the accused.
Law and Analysis (reasons given by the court)
1. Burden of proof
At the very outset, the court recorded that the burden is on the prosecution to prove beyond reasonable doubt that the accused committed the offences as charged, and that burden does not shift.
2. Victim’s testimony in a rape trial and its probative value
The court noted the settled position of law that the conviction of the accused in cases of rape or sexual harassment can be based on the sole testimony of the victim if the court finds that her deposition is of sterling quality which inspires confidence and is absolutely trustworthy, and that immoral character or previous sexual experiences of the victim is not relevant for deciding such cases.
After this, the court noted that the victim is well educated, a journalist well conversant with amendments to IPC after Nirbhaya’s case and who has dealt with issues relating to offences against women including rape and sexual assaults. Based on deposition of prosecution witnesses, it was noted that the prosecutrix is extremely capable, intelligent and independent person.
2.1. Possibility of doctoring of events with help of experts
According to the court, there are many facts on record which create doubt on truthfulness of the prosecutrix. There was a delay in lodging FIR and the prosecutrix refused to go for medical examination. She was in touch with lawyers even prior to drafting the complaint and sending to the Managing Editor of Tehelka. It has been recorded by the court that “Advocate Rebecca John“, among others, was guiding the prosecutrix about the course of action. It is also recorded that the prosecutrix was in contact with “Advocate Indira Jaisingh” (who is a friend of stepmother of the prosecutrix and whose number is saved by the name of Brahmastra).
The court, after discussing as above, concluded that:
“With the help of experts, there may be a possibility of doctoring of events or adding of incidents. Advocate for the accused has this rightly submitted that the deposition of the prosecutrix has to be scrutinised in that angle.”
2.2. CCTV footage
After recording the horrific details provided by the prosecutrix about all that took place inside the lift of Hotel Grand Hyatt on the night of 7-11-2013, the court recorded that:
“The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.“
2.3. False/inconsistent statements
Based on her statement regarding her complaint on a previous occasion sometime in 2012 when she along with her friends was allegedly molested by a police officer, the court further recorded that:
“[Prosecutrix] states that she did not approach the police immediately after the first incident [at the THiNK Fest 2013] as she was too afraid of the police which show that the victim is making a false statement that she is afraid of the police which is clear from the incident narrated by her which took place in Delhi against the police officer.”
The court also concluded that the prosecutrix had made inconsistent statements. Scrutiny of evidence of the prosecutrix, according to the court, revealed several discrepancies/changes in her version, each constituting either material omissions and contradictions or improvements in her original narrative which was given and continually shifting details of the account she had proffered. The court was also of the view that the CCTV footage did not support her statements.
2.4. Preparing a strong case
Noting that the prosecutrix pressured the Managing Editor of Tehelka to submit an apology on her terms on a claim that it would bring closure to the incident, the court formed an opinion that:
“However, the WhatsApp records show the [the prosecutrix] had already enlisted a battery of friends and networks to release such material on social media the moment the apology reached her. It is evident that the prosecutrix obtained apologies of accused from [the Managing Editor] in support of her accusation before the prosecutrix went public.”
3. Flirtatious and sexual conversations
Referring to WhatsApp messages between the accused and the prosecutrix, the court concluded that she did not contradict that both of them were drunk and it was nothing but a drunken banter, as suggested by the accused. This non-denial by the prosecutrix of the accused’s assertion gave adverse inference against her.
The accused in his defence stated that in fact it was the prosecutrix who was talking about her intimate escapades with Bob Geldof, Irish singer and a former speaker at THiNK 2012, and also that how she was attracted towards the accused.
The court noted that:
“… thousands of her WhatsApp chats … provide a glaring proof of the prosecutrix’s conversations with a wide range of people. … The messaging record shows that it was entirely in the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances.”
Therefore, concluded that court, that her chats and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7-11-2013.
4. Lying about intimate relationships
The court referred to the prosecutrix’s statement which, according to the court, was a brazen attempt at concealing her highly intimate and candid relationship with one N, a defence witness. Her chats with N, as also N‘s own statement, revealed that they were close friends and have had an intimate relationship.
The court here clarified that such evidence/chats were referred not for the purpose of proving her character but only to show that she was lying and that she twists and manipulates truth as she did by significantly understating the intimacy of her relationship with N. According to the court, it was difficult to believe that the prosecutrix is a truthful and reliable witness,
5. Evidence of N
The court extensively referred to the evidence given by N, prosecutrix’s friend and a defence witness, which contradicted the evidence of prosecutrix in material particulars. N was the first person who the prosecutrix met after the incident, but the investigation officer failed to record his statement nor investigate him. Hence, in court’s opinion, the evidence of N was relevant and admissible under Section 6 (facts forming part of same transaction) of the Evidence Act.
6. Glaring contradictions not expected from educated journalist
The court compared the email (complaint) of the prosecutrix sent to Tehelka’s Managing Editor with her statement under Section 161 CrPC, and noted “material contradiction”. In her email, the prosecutrix stated that “she picked up her underwear” and began walking out of the elevator. Saying that she picked up her underwear means that it was taken off the body and was not just pulled down. Taking it off was not possible as that would require lifting up of her legs. While in her statements under Section 161 and 164 CrPC, she stated that “she pulled her underwear” and began walking out.
Such “glaring contradictions“, said the court, “cannot be expected from educated journalist like [the prosecutrix] and forces the court not to believe the incident of rape“.
7. No revelation to prosecution witnessess
The court noted the evidence of a few prosecution witnessess who said that the prosecutrix only told them that accused forced his tongue in her throat, grabbed/attempted to pull her underwear and asked the colour of it. There was no accusation of removing her underwear, and penetrating her vagina with tongue/fingers.
The court said that if the rape on the prosecutrix at all happened, why she did not reveal or atleast hint about the same to the abovementioned prosecution witnesses. Also, the version disclosed by the prosecutrix to these witnessess was not at all consistent with the case she has now put up. In fact, this is inconsistent with the version of prosecutrix herself.
8. Not showing emails to court
The prosecutrix was asked whether she could show her email account to the court to which she denied. She stated that it was invasion of her right to privacy. In court’s opinion, the statement of the prosecutrix that she would not show the email to the court shows that she wants to hide something and thus she cannot be called reliable and trustworthy and evidence cannot be held to be of sterling quality.
9. Absence of injury
The court noted that the prosecutrix claimed to have physically resisted the accused with all her force and that she was constantly struggling. However, she admitted that she did not receive any injury out of the incident. According to the court, “it is not believable that the prosecutix would throw up such resistance and would not suffer any injury on her body“.
10. Narrative of extreme implausibility
Noting the position (where and how) the prosecutrix and the accused were standing in the lift, the court wondered that if she was not in a conversation with the accused and her mouth was not open, and she was not facing the accused, would it be possible for the accused to pry her mouth? It was observed by the court that:
“If the prosecutrix had held her jaw firmly closed, how it would be possible for the accused to put his tongue in her mouth. The prosecutrix stated that she pushed the accused as hard as she could and she did so instinctively and reflexively whenever she pushed him. If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed when she was pushed against the wall or atleast put her hands in between to prevent the accused from coming close.”
This, in court’s opinion, was a narrative of extreme implausibility and it was not possible to believe that the prosecutrix, a woman who is aware of laws, intelligent, alert and physically fit (a Yoga trainer) would not push or ward off the accused.
11. No warning to the accused and no fight back
The court noted that in her evidence, the prosecutrix clearly stated that she regularly pushed away the accused. Then it was also noted that the prosecutrix had stated that she did not warn or intimidate the accused when he went down on his knees as she claims that he was more powerful than her. She also admitted that she did not fight back against the accused when he began to disrobe her during the incident.
According to the court, the voluntary statement of the prosecutrix that she was too scared of the accused and still in shock could not be believed. It was concluded by the court that:
“Hence, the allegation of rape and sexual assault cannot be said to have been proved by the prosecution beyond reasonable doubt.”
12. No confession by accused
The prosecution submitted that in his apology given to the prosecutrix, the accused did not deny sexual molestation and, thus, has admitted the allegations made against him.
On this, the court discussed as to what is confession. It said that ordinarily, confession by a person is an act of admitting that he has done something wrong or illegal. In court’s opinion, the apology email sent by the accused reveal that there was absolutely no admission/confession of any incriminating fact even remotely suggesting sexual assault by the accused on the prosecutrix. That email is not a reply to any previous email sent to the accused by the prosecutrix containing any allegations of sexual assault, to claim that since the allegations were not denied, it amounted to a confession. In fact, it was not an apology but an attempt to assuage any discomfort the prosecutrix might have post facto felt. The court then went on to observe:
“Further, her statement that the accused offered to apologise to her mother and partner for the same certainly do not make out a case of sexual molestation, and it is clear that the prosecutrix is manipulating an interpretation to suit her case.”
13. Calculated actions of prosecutrix
The court noted that the prosecutrix had recorded her calls with Tehelka’s Managing Editor and these conversations were copied on DVDs which were submitted. According to the court:
“It is important to note that since she failed to inform [the Managing Editor] that she was recording the conversation – which means she could control anything she herself said in the conversation, but the other party to the call was left at the mercy of her manipulation. This is also a clear indicator of the calculated nature of her actions.”
In any event, said the court, such conversation was not relevant against the accused as he was not a party to the conversation.
14. Prohibition of Sections 53-A and 146 of the Evidence Act
Following the prohibition prescribed in Sections 53-A and 146 of the Evidence Act, the court decided to gloss over some WhatsApp chats and questions asked to the prosecutrix as well as several wintessess. Sections 53-A and 146 prohibit the evidence of general moral character and previous sexual experiences of the victim in certain cases (including cases of rape) where consent of the victim is in question.
15. The lift and the CCTV footage
The court noted certain facts regarding the lift where the incident allegedly took place. Firstly, the prosecutrix had stated that the accused kept pressing buttons on the lift panel to keep it in circuit without doors of the lift opening. To this, after perusing the evidence, the court concluded that much prior to the cross-examination of the prosecutrix, there was unequivocal evidence that the lift simply could not be kept in circuit by pressing buttons on the lift panel preventing the doors from opening at any floor, as claimed by the prosecutrix. Further, the prosecutrix did not recollect how many times the lift went up and down during the two minutes when she was being assaulted, thereby implicitly not denying the fact that the lift was in motion, and creating even more ambiguity about the lift being in motion or stationary.
However, it was noted by the court that the CCTV footage of the ground floor clearly showed that the guest lift was in motion during the two minutes and the doors of the lift opened at least twice on the ground floor.
16. Investigation lapse
The court made several observations regarding lapses in investigation, including improper inspection of functioning of the lift where the crime allegedly took place. The court went to the extent of observing that the Investigating Officer deliberately concealed empirical evidence of the true functioning of the emergency red button of the lift from the court though available, as it contradicted the version of the prosecutrix and the prosecution case.
Prosecution’s case was that the accused pressed the red button for preventing the doors from opening. It was attempted to show that the red button of the lift was disabled after the incident, hence its exact functioning could not be inspected. To this, the court said that if documentation was created regarding disabling of the emergency red button by Hotel Grand Hyatt and Mitsubishi, it was quite strange that all documents relating to same would go missing both from Hotel Grand Hyatt and Mitsubishi.
All in all, the court concluded that prosecution’s case that the accused prevented the lift door from opening and that he wrongfully confined the prosecutrix, was not proved.
17. Destruction of most crucial CCTV footage
The accused took the defence that he and the prosecutrix were not in the lift during the relevant two minutes, but had exited the lift on the first floor. To prove this, CCTV footage of the first floor of guest lifts of 7-11-2013 (the night of the alleged incident) was most vital to the accused. On the day of registration of FIR, i.e. 22-11-2013, itself, the accused had demanded that police should procure such CCTV footage from the hotel, which would establish his innocence.
Also, there was ample evidence to prove that there was in fact a CCTV outside the guest lifts of the first floor. Not only this, but the IO (as well as several other witnesses) also admitted to have seen the CCTV footage of all floors including that of the first floor. But on being asked as to what she saw in the footage of the first floor, the IO stated that she could not recollect.
The further course of action adopted by the her made it clear to the court as to how the IO went about selectively retaining only the ground and the second floor footage, and completely destroying the first floor CCTV footage of the guest lifts in which the alleged crime took place.
It was recorded that if the CCTV footage of first floor was viewed on 29-11-2013, then where did it disappear and there is absolutely no explanation to this from the prosecution. There was no reliable proof that the DVR was sealed on 29-11-2013 which creates even further possibility for tampering with the DVR. The court concluded that:
“It can be said that because the footage of the first floor would have wholly destroyed the prosecution’s case, [the Investigating Officer] sought to keep out the relevant footage for the first floor and render it unavailable. …
[The] only conclusion that can be drawn is that the Investigation Officer tampered with and destroyed the CCTV footage of the first floor guest lifts … since it would conclusively corroborate the defence of the accused.”
18. Not using possible escapes
The court found it surprising to believe that when the accused had assaulted the prosecutrix on the night of 7-11-2013, then why did she again follow him to the lift the very next night of 8-11-2013. According to her, the accused seemed to know how to stall the elevator at his will and she was afraid that he would take her into a room this time. The court said:
“Despite this so-called fear, [the prosecutrix] chose to follow him back to the elevator and does not use any possible escapes that are available to her.”
19. Conduct of prosecutrix not natural of a sexual assault victim
The court was not amused by the conduct of the prosecutrix after the alleged incident which was repeated on the night of 8-11-2013. Firstly, she did not report about the incident to Tehelka’s Managing Editor even when she had a chance of meeting her alone in the VIP lounge. Also, in photographs taken shortly after the alleged assault, the prosecutrix looks in a happy and cheerful mood, and did not look distressed or traumatised in any manner whatsoever.
According to the court, this unnatural conduct of the prosecutrix is relevant under Section 8 of the Evidence Act. The prosecutrix admitted to have been updating the accused about her location via WhatsApp messages even after the alleged assault. The court said:
“[If] the prosecutrix had 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 N, S and P, all of whom she was reporting and updating on a regular basis.”
It was recorded that the prosecutrix sending messages to the accused proactively, without any attempt by him to ask her where she was, and her sending the same message thrice in a span of very few minutes clearly establishes that she was not traumatised nor terrified of being located or found out by the accused, and belies the prosecution case that immediately before the said messages, the accused had sexually assaulted the prosecutrix again.
The court concluded:
“It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part – that an prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused.”
20. Omission to record evidence of K
K was an integral member of THiNK 2013 production team. The prosecutrix stayed the night of 9-11-2013 at Hotel Grand Hyatt in the production room allotted to K. Firstly, in court’s view, this exposed the fact that the prosecutrix had no problem freely moving about the hotel where the accused was also staying. Then, K has written a letter to the IO to share information related to the case. He said that he had known the prosecutrix for some time, and that he had information regarding the details and mental state of the prosecutrix during the festival, particularly on the night of 9-11-2017.
However, the IO despite receiving the said letter, did not record the statement of K. The court said that the IO dealt with the material in a casual manner and failed to even record the statement, let alone probe, verify and investigate all material potentially available in order to arrive at the truth.
21. Using allegation as a necessary escape for her peace of mind
The prosecutrix had stated that after the conclusion of THiNK 2013, she had to stay back in Goa before going home as she was traumatised and also because her mother along with her colleagues would be staying at her flat in Mumbai for a couple of days. But, the court looked at certain evidence which included her WhatsApp chats and found that the prosecutrix had a prior plan to stay in Goa with D, her Russian boyfriend, before and after the event.
The court concluded:
“[The] prosecutrix had always planned to stay in Goa with D post THiNK and is only using allegation of sexual assault to make it appear like a necessary escape for the sake of her peace of mind when it was always a pre-planned, pre-meditated trip.”
Also, the fact that after the event, the prosecutrix stayed with two of her friends at a hotel in Goa, as asserted by her, was found not proved.
22. Faulty investigation
The court had a long discussion about the material lapses and omissions on the part of Investigating Officer, some of which are mentioned above. It was also noted that the IO was also the complainant in the case (the police had initiated suo motu inquiry based on reports in media), even when there were other lady officers who could have conducted the investigation.
The court was of the opinion that:
“The settled proposition that the acquittal of accused cannot result due to defects in the investigation cannot be disputed, However, a duty is also cast on the investigating officer to conduct fair investigation in the matter to bring out the truth.”
The court held that deposition of the prosecutrix shows improvements and material contradictions, omissions and change of versions which does not inspire confidence. And that the accused ought to be given benefit of doubt as there is no corroborative evidence supporting allegations made by the prosecutrix. The prosecution failed to discharge the burden to prove guilt of the accused beyond reasonable doubt.
The accused was, therefore, acquitted of the offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC. [State v. Tarunjit Tejpal, Sessions Case No. 10 of 2014, decided on 21-5-2021]