The vacation bench of the Bombay High Court has directed the Goa Sessions Court to redact all direct references made to the victim and her identity in the 527-page judgment acquitting Tehelka founder Tarun Tejpal in the 2013 rape case.
Solicitor General of India Tushar Mehta, who appeared for the state in its appeal against Tejpal’s acquittal told the Goa bench of the Bombay High Court that the judgment and some of its observations are “astonishing” and they revealed not only the victim’s identity but also the names of her mother and husband. In fact, her email has also been mentioned in the judgment, he told the bench.
Mehta also highlighted several observations in the order where the victim’s behaviour was described in explicit detail.
The state has been granted three days to amend the grounds of its appeal and the matter will now be heard on June 2.
Making a case for rape
Tejpal was acquitted by the Goa sessions court on Monday after it raised questions on the conduct of the victim following the alleged incident and said she did not demonstrate any kind of normative behaviour that a victim of sexual assault might show.
The court also questioned the investigation mounted by the probe officer and raised issues regarding ‘missing crucial CCTV evidence’.
Sessions Judge Kshama Joshi in the 500-page judgment on May 21, that was made available late Tuesday night, said the evidence submitted by the prosecution and defence creates doubt on the truthfulness of the prosecutrix (victim) and noted that the benefit of the doubt has to be given to the accused in the absence of corroborative evidence.
Tejpal was accused of sexually assaulting his then colleague in the lift of a five-star hotel in Goa in 2013 while they were attending an event. It is extremely revealing that the prosecutrix’s account neither demonstrates any kind of normative behaviour on her own part that a victim of sexual assault might plausibly show, the judgment said.
The judge also ruled out the claim that the victim was traumatised and took into account messages sent by her to the accused even after the alleged incident. It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause an equal distress, humiliation and damage to the accused as well, the court said in its order.
The court noted that it was unnatural on the part of the victim to message the accused about her location in the hotel. If the prosecutrix had been recently sexually assaulted by the accused and was terrified of him and not in a proper state of mind then why should she (victim) report to the accused and disclose to him her location, the order said.
The judge further observed that the victim sending messages to the accused proactively without any attempt by him to ask her where she was, clearly establishes that the prosecutrix was not traumatised or terrified of being located or found by the accused. The court also observed that there was no medical evidence on record to prove sexual assault due to the delay in lodging of FIR and the prosecutrix’s refusal to go for medical examination.
“If the FIR was lodged immediately and medical examination of the victim was done, then perhaps there could have been some swelling in the vagina or presence of saliva of the accused therein, in view of the nature of the allegation, the order reads. The court also noted that the prosecutrix used to report on issues related to sexual crimes against women and gender issues and was hence up to date with the latest laws on rape and sexual harassment.
The court noted that the victim made many conflicting statements and even her mother’s statement does not corroborate or support the statement given by the victim that she was in trauma due to the alleged incident. There is evidence on record which creates doubt on the truthfulness of the prosecutrix, the court said.
Referring to the apology email sent by Tejpal to the woman on November 19, 2013, the court said it might have not been sent voluntarily by the accused but may have been sent due to explicit pressure and intimidation by the victim on the Managing Editor of Tehelka to act swiftly and also due to the inducement and promise made by the prosecutrix that the matter would be closed at the institutional level if the accused were to tender an apology. The court noted that it could not accept this particular email as admissible evidence against Tejpal.
The judge also 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 also 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 has to be scrutinized in that angle, the order reads.
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