The Goa government in its appeal before the Bombay High Court against journalist Tarun Tejpal's acquittal in a rape case said it was a fit case for retrial, citing the trial court's lack of understanding of a survivor's post-trauma behaviour and censuring of her character. The appeal, filed before the HC's Goa bench, was amended this week to bring on record the judgement and to include further grounds against the acquittal of Tejpal.
The government said the trial court "considered the evidence given by defence witnesses as gospel truth, but at the same time discredited without any finding the evidence given by the victim and the prosecution witnesses." It also claimed that the trial court completely ignored the most telling piece of evidence in the case (the apology e-mail) "which established the guilt of the accused beyond a shadow of doubt."
On May 21, sessions judge Kshama Joshi acquitted Tejpal, former editor-in-chief of the Tehelka magazine, in the case where he was accused of sexually assaulting his then woman colleague in a lift of a five-star hotel in Goa in November 2013 when they were attending an event. The trial court in its judgement questioned the woman's conduct, noting she did not exhibit any kind of "normative behaviour" such as trauma and shock which a survivor of sexual assault might plausibly show. The Goa government later filed an appeal against the acquittal.
In its amended appeal, which will be heard on June 2, the state government said the trial court had "lost sight" of the fact that it was Tejpal who was an accused and was on trial, and not the woman. "The entire judgement focuses on indicting the complainant rather than trying to ascertain the culpable role of the accused," the appeal said.
The finding of the trial court on how a woman, who has been a victim of sexual assault, normally behaves is "unsustainable in law and is coloured by prejudice and patriarchy", it said. In its appeal, the prosecution sought the HC to expunge several portions of the judgement that cast aspersions not only on the prosecution's case, but also on the woman.
"This fact, accompanied by other attendant circumstances, clearly makes out a case for retrial in accordance with law," the prosecution said.
Referring to portions in the judgement which noted that the CCTV footage and photographs from the event show the woman cheerful and smiling, the government in its appeal said the observations "betray a complete lack of understanding of the post-trauma behaviour of victims."
They (observations of trial court) also demonstrate complete ignorance of the law and also several directions and guidelines passed by the Supreme Court (on how to handle such cases), it said.
The trial court allowed "scandalous, irrelevant and humiliating questions" to be put before the victim, it said. "The trial court in its 527-page judgement has been influenced by extraneous and inadmissible materials and testimonies, graphic details of the woman's sexual history, that is prohibited by law, and has used the same for purposes of censuring her character and discrediting her evidence," the appeal said.
The manner in which the evidence of the prosecutrix (woman) was recorded in the case by the trial court requires close "judicial scrutiny," it said.
"Much of the impugned judgement has been consumed by sexual gossip and alleged sexual fantasies related to the prosecutrix which are legally prohibited," the appeal said.
The woman in her statement to police and to the court had said that while she was traumatised and shocked after the incident, due to professional commitments she had continued working at the event, the appeal further said.
On the trial court refusing to accept the apology e- mail sent by Tejpal to the woman journalist, the government said the court has not given any cogent finding as to how a person of the education, age and maturity of the accused, who was in a position of power over the woman, could in any manner be pressured into apologising.
"The trial court has completely ignored the most telling piece of evidence in the case (the apology e-mail) which established the guilt of the accused beyond a shadow of doubt," the appeal said.
It further claimed the trial court was wrong in questioning the survivor’s conduct post the incident and that she confided in three of her male colleagues about the incident instead of her female roommate.