This is a case that had captured public attention in 2013 and the years that have followed due to the high-profile nature of the accused and the seriousness of the allegations made. The incident was reported when the country was seething with anger post the Nirbhaya case in 2012. The Nirbhaya case was a landmark not just because it changed the rape laws in the country, but it deeply affected the way in which we viewed victims of rape. In the public discourse, the burden of shame finally shifted to the offenders from the victims. And both these changes played a crucial role in the rape case against Tarun Tejpal. So, when a young journalist at Tehelka magazine made serious allegations against the editor-in-chief, she was
rightly believed in the court of public perception.
The complainant in a rape trial is to be treated as a witness, a witness whose sole testimony is enough to secure a conviction. This testimony must be stellar, consistent and should stand cross examination. Though she is a witness whose testimony is of crucial importance, it’s not the gospel truth. It will be tested in a court of law, says the Supreme Court of India.
In this context, we assess the 527-page judgment by the Additional Session’s Court Judge Kshama M Joshi. One often wonders whether a purely legal analysis is possible of a rape judgment or would such an exercise be dominated by the semantics of the language in the judgment. In a rape trial, the language is arguably indicative of the way the trial was held, the sort of questions that were allowed. Misogyny is a seemingly perpetual theme of our institutions and the judiciary has a long way to go, like our society. Hence the language is not just about semantics, it’s also about the mind of the judge and the perception of the court.
Evidence and character assassination
The events in this case pertain to the night of November 7 and November 8, 2013, during Tehelka magazine’s Think Fest in Goa. The alleged offence of rape happened in a lift and it lasted for about two minutes. There is no CCTV footage of the actual crime but only of the accused and the complainant entering and exiting the lift while dropping off the guests at their rooms. There is no medical evidence as the investigation started about two weeks after the incident. There are no witnesses to the actual alleged crime. Quite simply, it is the word of the complainant against that of the accused. Tejpal denied all allegations, admitting only to engaging in a sexually colored conversation with the complainant on the night of the alleged crime, something that he described as ‘drunken banter’ by him.
So, what was the basis for the court to decide this case? In the present judgment, past sexual history of the complainant has weighed heavily on the mind of the judge. The unfettered access to her WhatsApp chat and selective inclusion of hearsay evidence are some of the key reasons for which Tejpal was acquitted. The shoddy job of the investigation officer was the final nail in the coffin.
At the outset, Section 53A of the Indian Evidence Act bars the defence from referring to the past sexual conduct or history of the victim unless it has a direct bearing on the case, especially in trials pertaining to sexual assault. The complainant in her cross-examination was asked whether she consumes alcohol or cigarettes, her views on consensual sex, whether she indulges in conversations with sexual overtones with friends and
acquaintances.
The propensity of having conversations with sexual overtones with many friends is one of the reasons that the court concluded that Tejpal and the complainant had a flirtatious conversation on the night of the incident, affirming the version of Tejpal. No such information about Tejpal or his past sexual conduct or vices of alcohol or cigarettes is discussed in the order in such detail. It seems there was no enquiry about his ‘propensity’
to commit a sexual assault. His reputation did not seem to be on trial.
Inconsistencies in the statement
The key inconsistency was the complainant’s failure to mention meeting Nikhil Agarwal right after the alleged incident of November 7 and removing references to him in later statements. This omission damaged the case severely. According to the judgment, the complainant had an intimate relationship with Nikhil, exchanged over 4,000 messages with him in the period prior to the November 7, 2013. The non-disclosure of this intimate
relationship was termed as manipulation, along with non-disclosure of the fact that Nikhil was the first person she met after the alleged sexual assault. Such witnesses play an important role in any investigation, especially in the absence of medical evidence. Nikhil testified under oath that he met the complainant after she had exited the lift, she had a wide grin and admitted to flirting with Tejpal. He also corroborates the version of Tejpal about a sexually coloured conversation. This was a fatal blow to the prosecution’s case.
But while Nikhil’s testimony was accepted in toto, the statements of three other colleagues who testified for the complainant were rejected for interesting reasons. The testimony of these witnesses is doubted because there were different versions about who opened the door for the complainant when she knocked. The order of the events — who entered the room with the complainant, whether she was crying, whether she was coherent or
disoriented — the three friends seem to have different versions. But all agreed that the complainant informed them about the incident. There is also an elaborate discussion about the hotel records and who all were staying in the room.
The testimony was rejected and the court says all of them deposed falsely, with one of them lying because he wanted to get into a physical relationship with the complainant. The court reached this conclusion by citing the chat of the complainant with Tiya Tejpal (Tejpal’s daughter), where the complainant seems to be talking about the witness’s sexual interest in her. Her past chats with the witness have also been cited as hinting to a sexual relationship.
In conclusion, one witness was believed by the court despite a past intimate relationship and another disbelieved for want of sexual relationship. It’s open for experts to comment on how consistent this is with the law of evidence.
And then there is the acceptance of the conspiracy theory. According to the judgment, the fact that the complainant consulted several noted lawyers, activists and National Commission for Women (NCW) members is proof of how events could have been engineered. There are various WhatsApp messages cited in the order to show how the complainant was in contact with noted senior lawyer, former ASG Indira Jaising, lawyer Rebecca John, Shamina Shafiq (then member of NCW). Right at the outset, the judge accepts the contention of the defence that the statement of the complainant should be
viewed from a conspiracy angle. There is no mention in any of these personal messages quoted in the order of trying to doctor events or any testimony. Yet the judge accepts this submission of the defence that the complainant’s testimony is doctored, because she consulted the aforesaid individuals.
In the wisdom of the court, for a victim to say that she picked her panties versus she pulled her panties, post the assault is a glaring inconsistency. It’s important because the complainant had good knowledge of English, according to the court.
The conduct of the victim, and the ‘Russian Boyfriend’
Other than the photographs and ‘description’ of her being normal by various people who testified, including the complainant’s roommates at the Think Fest, the court delves into why she did not return to Mumbai to meet her mother after the incident. The complainant testified that she wanted to cry and break down before her mother but stayed on in Goa because the house was occupied with some colleagues and she wouldn’t find space for
expression. According to the judgment, the complainant stayed back in Goa to spend time with her ‘Russian Boyfriend’, Danny. While initially she denied knowing him and also refused to acknowledge his presence in Goa, the court found through her WhatsApp messages with friends that the stay was pre-planned. This refuted the complainant’s claim that she had stayed back to deal with the trauma. The fact that the complainant’s mother did not apply for leave or showed any urgency to meet her daughter has been understood as unnatural conduct.
The judgment also cites how the complainant visited the room of the chief guest at the Think Fest, Hollywood actor Robert De Niro, on the night of the alleged crime. This information was retrieved through a WhatsApp group created by the complainant earlier. According to this chat and the testimony of one of the friends/members of this group, the complainant visited De Niro’s room and claimed to have engaged physically with the actor.
It is claimed that she said this to her friends on the group. The court finds that this conduct is not of a person who had just undergone sexual assault.
CCTV footage
The last straw was the shoddy job of the investigation officer and a failure to comply with the basic norms of criminal investigation. The court finds the investigation officer guilty of tampering with evidence. The court said that a portion of the CCTV footage was purposely
destroyed because it could have helped the case of the accused. The judgment also notes how crucial lapses during the recreation of the crime scene had led the court to doubt the version of the complainant. There is no evidence to show that the lift could be kept in circuit. The investigating officer only went to check if the lift could be kept in loop seven years after the incident. Most of the evidence that could have supported the case of the prosecution was termed hearsay and held as being not admissible.
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