The North Goa court "lost sight of the fact" that it was former Tehelka editor-in-chief Tarun Tejpal who on was trial and not the victim, Goa state government said while filing additional grounds to its appeal against the acquittal before the Bombay High Court.
The trial court exhibited dual standards to appreciate evidence and was prejudiced against the victim, the appeal read. The trial court judge also ignored a catena of Supreme Court judgments which says that a victim's past sexual history cannot be relied upon while deciding the merits of the present case at hand, the appeal stated.
Much of the impugned judgment has been consumed by sexual gossip and alleged sexual fantasies related to the victim which is legally prohibited, Goa appeal submitted as one of its grounds.
Additional Sessions Judge Kshama Joshi on May 21 observed that the victim did not display "normative" behaviour akin to that of a sexual assault victim and the prosecution's probe was shoddy while acquitting Tejpal in a 2013 rape and sexual assault case against his former female colleague.
The state of Goa had on May 25 appealed against the acquittal once hard copies of the verdict were made available. However, at the time, the appeal was filed without any reference to the judgment.
Also Read: Victim's Behaviour Unlike A Rape Victim: Goa Court While Acquitting Tarun Tejpal
Trial court put the victim on trial and anonymized the accused
The trial court "committed a grave error" in putting the victim herself on trial while anonymizing the accused and disregarding his culpability, the state said. "This approach must be deprecated. The law mandates that the central issue in a rape trial is the conduct of the accused man and not the character of the rape victim," it added. The trial court lacks understanding of a rape victim's post-trauma behaviour and has used her past sexual history and education as legal bias against her, said the state.
The state said that the manner in which the victim was cross-examined requires close judicial scrutiny since it went on for almost 700 pages, spread over eighteen dates of hearing, was nothing short of a brutal attack on her character and alleged past sexual history designed to shame and humiliate her.
The trial court disbelieved the victim's version of events on the basis of a conception of how a victim is expected to behave while being sexually assaulted. Such a finding is "unsustainable in law and is coloured by prejudice and patriarchy," it added.
If the law laid down by the trial court is correct, then a victim must look "traumatized" after being sexually assaulted; and if she is an educated girl who chooses not to create a scene is not a reliable witness, the appeal filed through advocate general Nilkanth Faldessai read.
The 527-paged judgment has been influenced by extraneous inadmissible materials and testimonies; graphic details of the past sexual history of the victim—which is prohibited by law—and, moreover used the same to censure the victim's character and discredit her evidence, the appeal further added. The entire judgment focuses "on indicting the complainant witness" rather than trying to ascertain the Tejpal's culpable role in the incident.
The judgment is, in the facts of the case, shocking in its apparent legal bias against the victim by suggesting that it is unsafe to rely on her testimony as she is well educated, a good writer, proficient in English, and above all conversant with the rape law, and was 'a capable, intelligent, independent person,' the appeal said.
The trial court unfortunately used the victim's strength and accomplishments to dispute her testimony, said the appeal.
Also read: Tarun Tejpal Acquittal: What Is 'Ideal' Behaviour For Rape Victims?
Trial Court failed to consider consent as the issue
Judge Joshi completely disregarded Tejpal's apologies; the detailed account of the incident as narrated by the victim and corroborated by witnesses; the various text messages exchanged between Tejpal and the victim in the aftermath of the incidents of rape on November 7 and 8, 2013 including a single word message, "fingertips" (Tejpal admitted sending the messages) which corroborated the victim's account of sexual assault and digital rape.
The trial court failed to consider that consent was an issue in the present case. Referring to the apology emails Tejpal sent to the victim—one informal, and one formal—he could not be permitted to claim that no incidents took place inside the lift.
"Consent is obviously a fact in issue," the appeal said.
The trial court misread the apology email. It is abundantly clear that Tejpal has admitted to an 'encounter'; he claims he has no idea that it was non-consensual until his daughter confronted him the next night, the appeal stated.
The appeal added that it completely defies reason and common sense as to why the accused would give detailed apologies to the victim within a day of her making a complaint to Shoma Chaudhury (Tehelka's Managing Editor), if the incidents had not taken place.
"The outrageousness of the denial of the apologies must also be viewed from the perspective that the apologies remain in the public domain and the accused has never denied or brought legal challenge against the existence, authenticity, and veracity of the same," it further added.
If the trial court has concluded that the Tejpal was a person in a position of authority, then its ruling that he was pressured or coerced by the victim and Chaudhary to send the apology email is, therefore, self-contradictory, the appeal submitted.
Also Read: Rape Laws in India: All You Need To Know
Trial court exhibited dual standards to appreciate evidence
The appeal also argues that the trial court was inconsistent in attributing value to testimonies made by the victim and the accused. The court disregarded corroborative testimonies that supported the victim, while consider the testimonies that corroborated Tejpal's version of events were "gospel truth".
Furthermore, appeal stated that the trial court adopted "the most absurd reasoning while judging the prosecutrix and the persons she chose to confide in". The Trial Court concluded that it is implausible that the prosecutrix could have confided in three male colleagues when her roommate was female, it added.
