The victim appeared "normal and happy, did not look disturbed", "not possible to believe an intelligent woman aware of laws and physically fit would not push off the accused", did not demonstrate "normative behaviour"; these were the observations made by Additional Sessions Judge Kshama Joshi on May 21, while acquitting former Tehelka editor in chief Tarun Tejpal for allegedly raping and sexually assaulting his female colleague.
The prosecution's shoddy probe was also referred to by the judge as one of the causes for acquitting Tejpal.
The victim's deposition did not inspire confidence while the prosecution failed to prove Tejpal's guilt beyond reasonable doubt, Additional Sessions Judge Kshama Joshi observed. The victim's behaviour was a key factor in "undermining her case", judge Joshi observed.
The judgment in Tejpal's case was made public on May 25. The state filed an appeal in the Bombay High Court hours later.
Victim did not demonstrate behaviour of a rape victim
"It is extremely revealing that the prosecutrix's account neither demonstrates any kind of normative behaviour on her own part—that a prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it show any such behaviour on the part of the accused (Tejpal)," the judge held.
The victim appeared to be in an "absolutely in a good mood, happy, normal and smiling and did not look distressed or traumatized" in the days subsequent to her alleged assault, the judge observed. "The photos show the prosecutrix to be absolutely cheerful and with a smile on her face and not disturbed, reserved, terrified or traumatised in any manner," special judge Joshi observed.
"The victim's narrative is of extreme implausibility, and it is not possible to believe that she, a woman who is aware of laws, intelligent, alert and physically fit (yoga trainer) would not push or ward off the accused if she got pushed against the wall," the court held while acquitting Tejpal.
The judge added that the victim's action in "proactively" sending her location to Tejpal in the aftermath of the alleged sexual assault did not support her "narrative of extreme implausibility".
"If the prosecutrix had held her jaw firmly closed how would it be possible for the accused to put his tongue into her mouth? If the prosecutrix pushed the accused instinctively and reflexively, why wouldn't she push the accused before he kissed her?", the judge added.
"The prosecutrix has stated that she does not recollect if she had caught her long dress when the accused was lifting it during the incident and voluntarily states that she was in a state of extreme shock while she was being sexually assaulted. Hence the allegation of rape and sexual assault cannot be said to be proven by the prosecution beyond a reasonable doubt," the judge noted.
The judge pointed out that there were discrepancies in the victim's narrative of the same event. While the victim stated that Tejpal forced his tongue in her vagina, the testimonies of her friends have stated that the accused forced his tongue into her mouth. "This part is missing from her first written versions; she has only written that the accused kissed her, without describing the nature of the kiss, therefore showing an improvement in her evidence, making it unreliable," the judge added.
"There is also no medical evidence on record on account of delay in lodgement of FIR and as the prosecutrix had refused to go for medical examination. If the FIR was lodged immediately, 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 judge said.
The deposition made by the prosecutrix along with material contradictions, omissions, and change in the version of the events did not inspire confidence, the judge observed. The judge added that CCTV footage recovered from the hotel did not back the victim's claims of being in shock and trauma after exiting the lift, where the alleged assault took place.
In the aftermath of the incident, Tejpal's had issued an apology via an internal e-mail, wherein he said: "I am sorry at the immense distress that's been caused to you by my lapse of judgment. You have made it clear that I read it all wrong and I will not dispute it, nor underplay your anger and hurt. I will apologise to your mother and your partner."
To which, the court said, "This statement of the accused makes it clear that no such episode occurred in the lift; and no such struggle, pushing, shoving and pleading happened between them; and that he is referring to the drunken banter he acknowledges they indulged in. The statement that he offered to apologise to his mother and partner does not make out a case of sexual molestation, and it is clear that the prosecutrix is manipulating an interpretation to suit her case."
Prosecution failed in proving guilt beyond doubt, destroyed proof
The prosecution's evidence did not back the claims made by the prosecutrix, the judge added. Furthermore, the goa police destroyed "clear proof of evidence" CCTV footage from one of the floors at the Goa hotel where the alleged incident took place.
"The prosecution has not proved that Mr. Tejpal raped her, nor is it proved that he used criminal force with the intention of outraging her modesty or he committed physical contact and advances involving unwelcome and explicit sexual overtures to disrobe her," the judge said pointing out lapses in the investigation of the case.
The investigating officer of the case had not questioned the prosecutrix on the glaring contradictions she made in her statements, the judge added.
"The very foundation of the prosecution case is that the lift doors were kept closed to commit the sexual assault either by pressing multiple buttons or a single button, the most critical and defining aspect of the investigation would be to verify the actual functioning of the lift buttons and whether they could facilitate the version of the prosecutrix," the judge said. The judge further pointed out that the investigation did not conduct "any investigation into this aspect, to find out the number of times the lift could be in circuit vis a vis the travel time."
"The course of action adopted by the IO makes it clear as to how she went about selectively retaining only the ground and second floor CCTV footage and completely destroying the first floor CCTV footage that has the said lift. Surprisingly the IO has stated that she does not know the meaning of hash value any storage device containing digital evidence has to generate its hash value to maintain its integrity," the judge concluded.
