Bombay High Court: In a criminal appeal filed by the State of Goa against the acquittal of the former Editor-in-Chief of Tehelka in a sexual assault case involving a woman employed with Tehelka, the Division Bench of Dr Neela Gokhale* and Amit S. Jamsandekar, JJ., held that an appellate court has full power to review, reappreciate and reconsider the evidence upon which an order of acquittal is founded, while bearing in mind the double presumption in favour of the accused. The Court found that the victim’s testimony was quite natural, inspired confidence and merited acceptance, and that her version qualified the test of high quality and calibre and was sterling.
The Court further held that the trial court’s findings were directly contrary to the evidence on record and per se perverse, having relied upon preconceived notions, irrelevant or inadmissible material, stereotypical assumptions and hyper-technicalities. Setting aside the acquittal, the Court convicted the accused under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342, Penal Code, 1860 (IPC).
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Background
The dispute arose from an appeal against the judgment and order dated 21 May 2021 passed by the Additional Sessions Judge, Mapusa, whereby the accused was acquitted of the offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC. The accused was the Editor-in-Chief and owner of Tehelka, while the victim was employed with Tehelka and was working as the Principal Correspondent in its Mumbai office. During THiNK Fest 2013, the victim was assigned to chaperone the Chief Guest.
The prosecution case concerned allegations arising during the THiNK Fest 2013 held in Goa. Following the alleged incidents, the victim disclosed the matter to colleagues, friends and family members and subsequently sent an e-mail seeking constitution of an Anti-Sexual Harassment Cell under the Vishaka Guidelines, a written apology and acknowledgement. Thereafter, the accused sent 2 apology e-mails dated 19 November 2013.
The State challenged the acquittal, contending that the victim’s testimony was consistent and of sterling quality and was corroborated by the evidence of witnesses, CCTV footage and the apology e-mails. It was further submitted that the accused was in a position of control and dominance over the victim and that the charges under Sections 376(2)(f) and 376(2)(k) IPC were therefore attracted.
The accused opposed the appeal and contended that the victim’s testimony contained contradictions, inconsistencies and improbabilities and that the surrounding circumstances did not support the prosecution case. It was further argued that the apology e-mails were not voluntary and had been obtained under pressure. The accused submitted that the scope of interference in an appeal against acquittal was limited and that the trial court’s view did not warrant interference.
Analysis
The Court first observed that the impugned judgment and order primarily centred on the victim’s moral character, her behaviour before and after the incidents, her open interactions with friends and her overall personality. The Court noted that a detailed review of the victim’s cross-examination showed that the defence repeatedly focused on her personally, as if she were on trial rather than the respondent. It was further observed that nearly half of the 1000-page cross-examination consisted of repetitive questions concerning specific details of the alleged acts and that 5 years after the incident, the victim was persistently asked to recount details of the rape, not to clarify facts or test her credibility, but to find inconsistencies and distort her account.
On the scope of interference in an appeal against acquittal, the Court referred to Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 wherein it was held that an appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. It was emphasised that the Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and that an appellate court may reach its own conclusion, both on questions of fact and law. It was also observed that in case of acquittal there is a double presumption in favour of the accused and that if 2 reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal.
The Court highlighted that it is a settled principle of law that a conviction can be founded on the sole testimony of the victim unless there are compelling reasons to seek corroboration, and that corroboration as a condition for judicial reliance on the victim’s testimony is not a requirement of law but a matter of prudence in the given circumstances. The Court noted that the victim had stood firm in her testimony despite invasive cross-examination and that as many as 7 witnesses had corroborated her narration. The Court accordingly observed that it has no hesitation in believing her testimony.
The Court noted that the alleged sexual assault occurred inside the lift and that there was no CCTV camera inside the lift. It was observed that the presence of the victim and the accused at the spot of the incident was established and that the act took place within the 4 walls of the lift. Referring to Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, the Court observed that if an offence takes place inside the privacy of a house, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the courts. The Court further observed that the victim’s statement was reliable and consistent, her story was corroborated by witnesses, and the CCTV footage was significant to the extent that it placed the victim and the accused at the spot of the incident on the date and time testified by her.
On the apology e-mails, the Court observed that the victim had sent a complaint by e-mail on 18 November 2013 and had required constitution of an Anti-Sexual Harassment Cell as per the Vishaka Guidelines, a written apology and acknowledgement. The Court noted that the accused thereafter sent 2 apology e-mails, 1 formal and 1 personal. The Court observed that in the formal apology the accused apologised for the shameful lapse of judgment that led him to attempt a sexual liaison with the victim on 2 occasions despite her clear reluctance.
The Court noted that the e-mails clearly admitted that the accused acknowledged the sexual assault on the victim, albeit calling it a sexual liaison. It was further observed that the explanation that the encounters were nonsensual and taken lightly was unconvincing. The Court noted that the accused’s primary defence was outright denial and that issuing 2 e-mails admitting guilt and offering apologies was inconsistent with such denial.
The Court noted that the material on record established that the incidents took place and that there was a sexual encounter between the accused and the victim, which the victim alleged was a sexual assault without her consent. Referring to the proviso to Explanation 2 of Section 375 IPC and Section 114-A, Evidence Act, 1872, the Court observed that a woman who does not physically resist cannot, by that fact alone, be regarded as consenting to sexual activity. The Court further noted that where the statutory conditions were satisfied and the woman stated in evidence that she did not consent, the Court shall presume that she did not consent.
On the victim’s behaviour before and after the incidents, the Court observed that an attempt had been made to portray her as a woman of loose morals and character and that her personal life, including text messages, e-mails and photographs, had been laid bare in public view. The Court noted that the victim’s way of life had been magnified to declare her a promiscuous woman and a libertine. The Court observed that even if a victim is accused of immoral character, it does not give the accused any right to rape her. Referring to State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57, the Court noted that the credibility and trustworthiness of a victim’s version are the decisive factors in adjudging culpability, not her disposition. It was held that the text messages exchanged by the victim with her friends could not be relied upon to depict her as a woman of loose moral character, open to sexual assault.
On the perfect victim construct, the Court observed that the trial court proceeded on a notion that a victim of sexual assault must behave in a stereotypical manner and that the victim was to be a perfect victim before the courts could believe her story of woe. The Court described the perfect victim concept as an unspoken cultural archetype where a person is fully believed, sympathised with and granted legitimacy only if they exhibit absolute vulnerability, complete innocence and total passivity. The Court observed that when a survivor does not fit in this mould, their trauma is normally devalued. It was further observed that expecting a survivor to be constantly miserable, meek or visibly broken ignored the reality of human coping mechanisms. The Court held that the concepts of a perfect victim are a myth and that credibility must be evaluated on facts, not on whether a survivor fits a narrow cultural mould.
On control and dominance, the Court observed that the accused was the victim’s employer, mentor, her father’s friend and the father of her close friend and that he held a position of dominance, control, trust and authority over her. The Court noted that for this abuse of authority, he was charged under the specific aggravated categories of Section 376(2)(f) and (k) IPC.
The Court then carefully perused the impugned judgment and order and held that the trial court’s findings were directly contrary to the evidence on record and per se perverse. The Court observed that the trial court’s evaluation of the victim’s testimony and evidence exhibited multiple fatal flaws, largely stemming from preconceived notions and reliance on irrelevant or inadmissible material. It was further observed that the trial court had misconstrued the disclosures made to the victim’s colleagues and mother as suspect or failing to corroborate rape and had completely ignored that she had confided in close friends and family without intending them to be formal disclosure statements.
The Court further observed that the trial court had misread the victim’s inability to open a 7-year-old e-mail account on Court hardware as a sign of untrustworthiness and had drawn unfounded negative inferences regarding her lack of visible physical injuries, her physical response and her failure to lower her chin or scratch her attacker. The Court held that the trial court had relied on stereotypical assumptions about how an ideal victim should physically resist or emotionally react and had even held her smiling demeanour during subsequent work events against her.
Considering the aforesaid discussion, the Court found that the victim had made truthful statements and that the prosecution had established the case against the accused beyond every reasonable doubt. The Court held that the trial court had fallen in error in acquitting the accused and that the appreciation of evidence by the trial court was not only unreasonable but perverse. It further held that the conclusions arrived at by the trial court were untenable and that, in the established facts and circumstances of the case, the view expressed by it was not a possible view.
Decision
Accordingly, the Court set aside the judgment and order of the trial court and convicted the accused for offences punishable under Sections 376(2)(f), 376(2)(k), 354, 354-A, 354-B, 341 and 342 IPC.
The Court sentenced the accused to rigorous imprisonment for 10 years and fine of ₹5,00,000 under Sections 376(2)(f) and 376(2)(k) IPC, with default sentences of 3 months, rigorous imprisonment for 1 year and fine of ₹10,000 under Section 354 IPC, with a default sentence of 1 month, rigorous imprisonment for 1 year under Section 354-A IPC, rigorous imprisonment for 3 years and fine of ₹10,000 under Section 354-B IPC, with a default sentence of 3 months and fine of ₹500 each under Sections 341 and 342 IPC, with default sentences as specified in the order.
The Court directed that all sentences shall run concurrently and that the period already undergone in custody during the trial shall stand set off. The entire amount of fine deposited by the accused was directed to be given to the victim, with the Police Inspector of the Criminal Investigation Department (CID), Crime Branch, North Goa directed to file a compliance report within 3 months. The Court also granted 4 weeks’ time to the accused to surrender and directed that the bail bond would continue till he surrendered or was arrested.
Consequently, the Court allowed the appeal.
[State of Goa v. Tarunjit Tejpal, Criminal Appeal No. 16 of 2022, decided on 6-8-2026]
*Judgment authored by: Justice Dr Neela Gokhale
Advocates who appeared in this case:
For the Appellant: Tushar Mehta, Solicitor General of India (through VC), Devidas J. Pangam, Advocate General with S.G. Bhobe, Cyndiana Silva, Public Prosecutors, Pravin Faldessai and Nikhil Vaze, Additional Public Prosecutors, Maria Simone Correia, Shubham Priolkar, Neehal Vernekar, Eshan Jacques and Ajay Borkar, Additional Government Advocates
For the Respondent: Aabad Ponda, Senior Advocate with Subash Jadhav, Raunaq Rao and Tabitha Souto, Advocates