Court acquitted veteran journalist Tarun Tejpal on the basis of empirical evidence after prolonged trial

A District & Sessions Court at Mapusa in Goa on May 21 acquitted Tarun Tejpal, the founder-editor of Tehelka, of charges of raping a former colleague eight years ago.

A journalist working in Tehelka magazine had on November 18, 2013 accused Tejpal, her editor-in-chief, of sexually assaulting her twice at a literary event hosted by the magazine at a five-star hotel in Goa. Both assaults, she alleged in a series of e-mails to the-then managing editor Shoma Chaudhury, took place in a hotel elevator, on the consecutive nights of November 7 and 8, 2013.

The Goa police went on to charge Tejpal with offences under sections 376(2)(f) and 376(2)(k), aggravated rape clauses which prescribe punishment for rape by a person in a position of trust or authority and in a position of control or dominance respectively towards the woman. In addition, he was also charged under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354A (sexual harassment), 354B (assault or use of criminal force to woman with intent to disrobe), 341 (wrongful restraint) and 342 (wrongful confinement) of the Indian Penal Code.

Tejpal spent nearly seven months in prison before the Supreme Court granted him bail on 1 July 2014. His trial began in September 2017. In August 2019, the Supreme Court denied his appeal that the charges against him be quashed, but directed the lower court to complete proceedings within six months, which the latter deferred citing the COVID-19 pandemic.

Following the acquittal, Tarun Tejpal's daughter Cara Tejpal read out a statement on her father's behalf, saying, "The past seven-and-a-half years have been traumatic for my family as we have dealt with the catastrophic fallout of these false allegations on every aspect of our personal, professional and public lives. We have felt the boot of the state, but all through it we have co-operated fully with the Goa police and the legal system, through hundreds of court proceedings," said the statement.

Tejpal was quoted by a news agency as saying: "It's been a long nightmare for my family. I'm relieved that it is finally over and I'm very grateful to have received justice because it is not always the given thing in this country anymore."

Just hours after the Sessions Court acquitted Tejpal on May 21, Goa chief minister Pramod Sawant announced the state’s intent to challenge the verdict. He convened a meeting of top legal officers the same day and directed them to file an appeal in the HC, even before the full judgement was released, raising eyebrows.

The legal community was also surprised when the Goa government roped in Solicitor General Tushar Mehta —the country’s second senior-most legal officer— to argue their appeal in the Goa bench of the Bombay High Court.

On June 2, a High Court bench of Justice SC Gupte took up the appeal and issued a notice to Tejpal while posting the date of hearing for June 24.

Incidentally, the judgment has also been roundly criticised by some woman activists, with allegations being made that the trial court did not take into account several aspects of the case, including the “confession” allegedly made by Tejpal to the woman colleague through email. However, these emails have been addressed extensively within the settled framework of law in the trial court judgment.

The judgment

In her 527-page judgment, Additional Sessions Court judge Kshama M. Joshi gave Tarun Tejpal the benefit of doubt “as there is no corroborative evidence supporting the allegations made by the prosecutrix (female colleague)”, among several other grounds.

One central pillar of the case was the allegation that Tejpal kept the elevator of the two-storeyed building in motion while molesting the victim. Judge Joshi ruled that this was not the case. Her judgment points out: “The CCTV footage of the guest lifts of the ground floor clearly shows that the left guest lift (the relevant one) was in motion during the two minutes of the alleged incident on November 7, 2013, and that the doors of the left lift opened at least twice on the ground floor.” This could either mean that both the accused and prosecutrix were inside the elevator when the doors opened or were not inside at all.

The deposition of the prosecutrix “also shows improvement and material contradictions and omissions and change of versions which does not inspire confidence”, the judge said. In her initial statement in 2013, the prosecutrix said that Tejpal had pressed multiple buttons in the lift to keep it in circuit. But in her cross-examination in 2020, she said she didn’t know whether the lift was stationary or moving and that the accused had pressed only one button, the judgement said.

The judgment notes that the investigating officer (IO) did not question the prosecutrix on the glaring contradictions in the CCTV footage and the statements she made.

A potentially crucial piece of evidence—CCTV footage of Tejpal and the prosecutrix mistakenly emerging from the elevator on the first floor, which might have contradicted the allegation of assault—was destroyed by the police, the judge said.

Tejpal’s letter of apology to the prosecutrix could not be held to incriminate him, the judgment says, as it was not an admission or confession of any crime but a letter to Tehelka that he is recusing himself as editor-in-chief due to the allegations.

National Herald parsed the 527-page judgment, relevant detailed excepts from which are reproduced here:

Lift operation and related findings

The judgement states that the Prosecution has failed to prove that the lift can be kept closed and not allowed to open, either when stationary or in motion, from inside (Page 384, point 244).

It ratified the evidence on record that the prosecutrix had one single narrative from the first complaint till exam in chief, that the lift had been kept in motion by the Accused by randomly pressing buttons.

However in cross she changed the narrative to say she does not know whether the lift was stationary or moving and that the Accused pressed one specific button (Page 384, point 244).

The judgement says that the Defense has proved, using CCTV footage (prosecution evidence), that the lift doors did open twice on the ground floor during the 120 seconds of the alleged incident. This further proves the Prosecutrix's narrative as a complete lie, since it means that either she remained in the lift with the Accused even when the doors opened or that the Accused and the Prosecutrix were not in the lift at all for this period. The evidence that shows the lift door opened entirely nullifies the possibility that the incident as claimed can have happened (Pages 512-516, point 357 onwards).

CCTV and related findings

The judgement states that the contradictions in the CCTV are often so glaring that the exact opposite of what the Prosecutrix is claiming actually happens on screen, yet the Investigating Officer (IO) did not even question the Prosecutrix on the same (Page 520, point 371).

The judgment states:

–CCTV evidence shows the Prosecutrix's narrative changed substantively both in physical circumstances of what she claimed and her previously attested state of mind; cross examination brought material contradictions, omissions, inconsistent statements in the deposition which make her evidence not of sterling quality to base conviction only on her testimony (Page 228, point 133).

–While the Prosecutrix claimed she came out of the lift blinking back tears and in a state of shock and trauma, the CCTV footage doesn't show any such thing (Page 61, point 27).

–On day two, CCTV shows that at the very moment the Prosecutrix claimed the Accused grabbed her wrist and pulled her in to the lift, she in fact followed him to the lift and waited beside him for him to finish chatting with a guest and then went in after him (Page 444, point 291).

–That the IO admits there are glaring contradictions on viewing the CCTV and the statements made by the Prosecutrix, yet she neither addressed it when recording the Prosecutrix's statement, nor was any supplementary statement later recorded by her in view of the same (Page 521, point 372).

–The judgement states that a copy of the CCTV was not handed over to the Defense till they went to the Supreme Court and then was finally only given to the Defense in December 2015, two years after the alleged incident. (Page 509, point 342)

–The judgement states that the fact that the Accused, on reading the Goa police statement on November 22, 2013 that there was CCTV footage in the case immediately issued a press release the same day demanding it be released in the public domain without having seen it himself, and that this is consistent with the Accused's claims of his innocence from the outset. (Page 412, point 266)

About the Investigating Officer (IO)

–The judgement notes that the IO is the complainant in the case and that despite the presence of another lady officer in the crime branch, she did not request the case be assigned to someone else, despite the ethical problem with investigating her own complaint. (Page 506, points 335, 336)

–The judgement calls out in substantial detail dozens of investigative lacunae, distortions, failures, concealments or manipulation/destruction of evidence by the IO on every aspect of the case. (Starting page 505, points 332-384, listing over 50 investigative lapses or lacunae or omissions by the IO)

Destruction of first floor CCTV footage by the IO

The judgement states that it was the case of the Accused that the Prosecutrix and he were not in the lift during the alleged period and had got off at the first floor by mistake and that the CCTV footage was destroyed by the IO because it would entirely demolish the prosecution case.

It went on to say:

–There is ample evidence on record to show the CCTV footage for the first floor existed (Page 418, point 273). It says the IO

admits to viewing the footage for the first floor but claims she does not recollect what was on it (Page 419, point 274) .

–There is evidence to infer very clearly that the CCTV footage of the first floor was destroyed by the IO since it was neither attached nor is available now for attaching or viewing after the IO herself viewed it. (Page 437, point 287; page 505, point 332)

About the "apologies"

–The judgement states that through manipulation, the Prosecutrix brought pressure to bear on PW45 (Managing Editor of Tehelka) to submit an apology on claim/promise of closure. (Page 307, point 192).

–The judgement states that contemporaneous WhatsApp messages show the Prosecutrix had enlisted a battery of people to release the apologies on social media and the demanding of apology needs to be read in that light (Page 230, point 134 in judgement).

–The judgement notes that the so-called apology does not meet the test of law since is demanded under inducement, promise, threat (Page 299, point 189).

–The judgement notes that there is evidence on record to show that the apology has been written by PW45 in response to clear and detailed instructions from the prosecutrix about what she wanted the apology to say, and therefore is in no way voluntary (Page 301, point 191; page 307, point 192).

–Even a bare reading of the email titled "Personal" does not make out any of the offences the Accused has been charged with and in fact reinforces his counter narrative while apologising for any imagined hurt. No "confession" can be read selectively from a document as per law. (Page 300, point 190; page 308, point 193)

About DW4, the first/only contemporaneous witness

The judgement notes that DW4, who was the first person the Prosecutrix met barely minutes after the alleged incident and therefore the only contemporaneous witness in the case (res gestae) was deliberately concealed/references to him deleted by the Prosecutrix. (Page 257, point 157; page 272, point 168)

– The judgement notes that an email from the Prosecutrix that proves DW4 was the first/only contemporaneous witness was part of documents seized by the IO but the IO neither contacted DW4 to question him at any stage, nor did she question the Prosecutrix about the deletion of all references about a contemporaneous witness. (Page 257, point 158; page 270, point 167)

– The judgement notes that DW4 wholly contradicts the Prosecutrix's narrative of assault and states that she told him she had had a flirtatious encounter with the accused and attests that she was not in trauma or shock or in any way disturbed. (Page 262, point 160)

–The judgement notes that while the Prosecutrix's draft email says she had told DW4 everything that had happened to her, his messages to her clearly prove that he was unaware of anything untoward having happened. (Page 267, point 165)

–The judgement states that it is apparent that the first version of the Prosecutrix to DW4 completely contradicted the version of the Prosecutrix of sexual assault and the later versions (to the three boys) did not corroborate her evidence in court as to rape. It also notes that the version of DW4 completely demolishes the account of the Prosecutrix (Page 260, point 159)

–The judgement notes that the Prosecutrix lied in cross examination about the nature of her relationship with DW4 and that evidence exists in the form of 4,000 detailed messages between them, corroborated by the testimony of DW4, which makes it difficult to believe that the Prosecutrix is a truthful and reliable witness. (Page 253, point 153)

–Though DW4 was the first person who the Prosecutrix met as per her email, she has filed to delete the same which is admitted by the Prosecutrix and the IO has failed to record his statement nor investigate as he had sent a letter also to that effect. Hence the evidence of DW4 is relevant and admissible under section 6 of the Evidence Act.

Other anomalies and inconsistencies

The law mandates that in a rape case, the version of the Prosecutrix is enough to convict an Accused, provided it is found to be of sterling quality but outright falsities, glaring inconsistencies, material and substantial improvements in each version and documentary evidence like the CCTV, lift manual, and testimony of both prosecution and defense witnesses that the testimony of the Prosecutrix in no way stands up on evidence or in cross examination.

–The judgement states that the prosecution's narrative is riddled with anomalies, inconsistencies, improvements, contradictions and omissions, yet the IO and the prosecution turned a blind eye to them (Page 487, point 314).

–The judgement notes that in every version on record the Prosecutrix claimed the Accused was a close family friend and a mentor to her since childhood and that he was always at the other end of a phone line. However, documentary evidence on record in the form of an email by the Prosecutrix herself on the occasion of the Accused's 50th birthday states that "the first time I ever met (Accused) was when I was an intern at Tehelka."

–The judgement notes that the Prosecutrix entirely left out of her account 5 minutes during which the Accused and she left the block and stood right outside in conversation, which is the time the "drunken banter" between them took place; their exit and re-entry are recorded on CCTV (Page 246, point 148)

–The judgement states that the Prosecutrix is evasive on multiple occasions. The judgement specifically addresses the fact that while the Prosecutrix places on record intricate details about food and drink she packed for the De Niros' picnic lunch on 9/11/2013, her memory conveniently fails to function at crucial moments whenever evidence to the contrary is produced (Page 250, point 150).

–The judgement records that the Prosecutrix refused a medical test and also denied that she refused the medical test but was then shown documentary evidence of her refusal as part of case record (Page 46, point 15).

–The judgement notes the delay in filing the complaint and FIR and notices that in the interim, the Prosecutrix received assistance from lawyers, women's commissioner, NGOs etc, which increase substantially the chances of an enhanced, doctored or manipulated version of events, and that the deposition of the prosecutrix has to be viewed in that light (Page 51 onwards, points 20-23).

–The judgement notes that National Commission for Women member Shamina Shafiq sent a letter to Goa Police to take suo moto cognisance of the issue. She claimed she did not personally know or engage with the Prosecutrix; however call records show and the Prosecutrix admits making a call to her, while records also show two messages exchanged between them on the day of filing the FIR. The judgement notes that the Prosecutrix lied about knowing and being in touch with Shamina Shafiq. (Page 50, point 19)

–The judgement takes note of the fact that the Prosecutrix sent three messages to the Accused within the space of a few minutes telling him exactly where she was right after the alleged second incident, which is entirely opposite to her narrative of trauma and of avoiding the Accused/keeping a distance from him, as well as to plausible normative conduct by someone who has just been assaulted a little while ago. (Page 451, point 295)

–The judgement notes that there are photographs on record produced by PW11 that show the Prosecutrix standing with the Accused and Robert de Niro in the green room on the morning of November 10, 2013, after both alleged incidents have occurred, in which the Prosecutrix is looking relaxed, smiling and at ease posing for pictures with the Accused.

In addition, the judgement notes evidence of multiple Prosecution witnesses who attest to the fact that the Prosecutrix called out to the Accused to join her and Robert de Niro for the photograph.

This is to be viewed in the light of the Prosecutrix's own claims of being extremely distraught, tense, on the verge of a breakdown, and doing everything she could to keep away from the Accused (Page 489, point 315).

–The WhatsApp messages at Page nos.101, 102, 103, 384, 386, 388 to 390, 391 to 392, 394, 400, 447, 449, 451, 454, 456, 457, 459, 462, 464, 466, 469, 473, 475, 478, 481, 484, 487, 643, 650, 654, 663, 667, 670 and 677 of the deposition of PW1 cannot be taken into consideration, however, not on account of consent or the character as those WhatsApp messages were shown to the prosecutrix as she was suppressing relevant facts and not for proving her character or consent for which the objection was raised. The said messages accordingly are glossed over.