The judge made several remarks in her order about how the survivor didn’t look or act ‘traumatised’ enough — going back to the problematic trope of how an ‘ideal victim’ must behave.

Tarun Tejpal with greying hair and a grey beard wearing a white shirt against a black backgroundPTI
news Court Thursday, May 27, 2021 - 10:55

“The prosecutrix (complainant) was absolutely in a good mood, happy, normal and smiling,” says the order of a Goa court while acquitting Tarun Tejpal in a rape case, adding that the survivor “did not look distressed or traumatised in any manner whatsoever, though this was immediately a few minutes after she claims to have been sexually assaulted again by the accused, putting her in a state of panic and trauma.” The 527 page judgment acquitting the former Tehelka editor of all charges in the 2013 sexual assault case is filled with instances where the judge refused to believe the survivor because she did not behave like an ‘ideal victim’, and did not look ‘traumatised enough’. Tarun Tejpal was accused of sexually assaulting a former colleague inside the elevator of a luxury hotel in Goa. While the judgment was delivered on May 21, a copy of the verdict was made available on May 25. 

Additional District and Sessions judge Kshama Joshi, in her detailed written order, has said that upon considering all the evidence, a “benefit of doubt” was given to the accused because there is “no corroborative evidence” supporting the allegations made by the woman, who worked as a journalist in Tehelka at the time. This, despite an email from Tejpal to the survivor in which he said, “It wrenches me beyond describing, therefore, to accept that I have violated that long-standing relationship of trust and respect between us and I apologise unconditionally for the shameful lapse of judgement that led me to attempt a sexual liaison with you on two occasions on 7 November and 8 November 2013, despite your clear reluctance that you did not want such attention from me.” Tejpal wrote this email to the survivor after she first brought up the allegations at her workplace. 

The judgment also said there were "glaring contradictions" in the statements by the survivor, her mother and brother and stated that "it would be extremely risky to base the conviction of the accused on the sole testimony of the prosecutrix when it does not inspire confidence." “There was not enough evidence to support the allegations made by the survivor against journalist Tarunjit Tejpal,” the court said. 

While feminist scholars and activists have for long rubbished the idea that a victim can only behave in a certain way after an assault, the judgment goes right back to the trope of ‘good victim’ versus ‘bad victim’, in deciding that the woman could not have been raped because of the way she acted post the alleged incident. "It cannot be lost site (sight) that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause an equal distress and humiliation and damage to the accused as well,” the judge said.

Not an ‘ideal victim’

Rejecting the assertion that the survivor was traumatised, the court has said some of the WhatsApp messages of the woman show she was not traumatised as claimed and had plans to stay in Goa after the official event (organised by the magazine) where the incident took place. The court said in its judgment that evidence from two prosecution witnesses and the printouts of photographs from a party after the incident “clearly proves that the prosecutrix (complainant) was absolutely in a good mood, happy, normal and smiling”.

“..if she had recently been sexually assaulted by the accused and was in a state of trauma, is it even remotely plausible that the prosecutrix (complainant) would seek out and meet the accused? This clearly shows that there was no anxiety, fear, hesitation or trauma at meeting the accused, including when she was alone and it was a late hour, and clearly indicates that she was not sexually assaulted by the accused,” the court said.

Kshama Joshi further makes a judgment about the victim’s character, for recounting her assault to male colleagues over female colleagues, stating that even if one allows for the fact that the survivor sought out three male colleagues "who were not intimate friends" to share details about the alleged incident, while making no mention of it to her roommate Sunaina and her closest friend at Tehelka, Samia Singh or even her mother, "nothing can explain the absolute normalcy of her behaviour and state of mind inside the privacy of her own room given her own avowed state of mind — such that the colleague sharing this small hotel room with her discovers two weeks later that the prosecutrix claims to have been sexually assaulted on those very nights!"

The judgment said that it was “crucial” that her roommate "did not hear her speak on the phone at any point in even a mildly disturbed state so as to alert her that something was amiss with the prosecutrix when the prosecutrix has stated that she was talking to her husband nearly for more than an hour."

The judge also said that the complainant ‘hid facts’ and cited the woman journalist’s WhatsApp messages to add that “it is difficult to believe that the prosecutrix is a truthful and reliable witness.” The court said that the statements of the woman's mother “do not corroborate or support the statement of the complainant that she was in trauma due to alleged rape, as neither the complainant girl nor her mother changed their plans (after the incident).” The judge also made an observation that the complainant has made many conflicting statements and that there is “many evidence on record which create doubt on the truthfulness of the complainant.” The judge added that such “glaring contradictions” in her statements to the police and the Magistrate “are not expected from an educated journalist like her, and forces court not to believe incident of rape.”

The court also said that the complainant said that she was constantly struggling during the assault but “it (is) not believable that the prosecutrix (complainant) would throw up such resistance and would not suffer any injuries on her body...This is a narrative of extreme implausibility and it is not possible to believe that the prosecutrix, a who is aware of laws, intelligent, alert and physically fit, (Yoga trainer) would not push or ward off the accused if she got pushed up against the wall, especially when she was facing him and especially when she saw the accused coming uncomfortably close to her in her private space.”

‘Probe faulty’

Pointing out faults in the probe, the judge said it is the fundamental right of the accused to have a fair investigation but the Investigating Officer has committed omission and commission while conducting the investigation. The judge has said the Investigating Officer destroyed crucial pieces of evidence in terms of CCTV footage of the first floor of the seventh block of the hotel, which was “clear proof of the innocence of the accused.” “Sunita Sawant being the (initial) complainant (Goa police took suo motu cognisance of the allegations) can not be Investigation Officer in the case but she did not move any proposal to her superiors to hand over the investigation to another officer,” the court noted.

The court said it has not ruled out the possibility of tampering with some CCTV footage inside the hotel and said that the Investigating Officer did not verify the operation and functioning of the lift panel of block 7 (of the hotel) to prove that opening of the lift can be stopped or not. “IO did not investigate whether the lift can be prevented from opening or can be kept in-circuit by pressing a button as alleged by the complainant girl. The IO did not investigate the fact that there is an incoming phone and an emergency stop button to use in the emergency situation.” 

CCTV footage ‘didn’t add up’

The judge also added that the CCTV footage and the survivor’s testimony was not adding up. The order has said the CCTV footage indicates that the lift in fact opened twice on the ground floor whereas the woman claimed the lift did not open at all. “The IO has admitted that there is a contradiction between CCTV footage and the statement of the complainant, yet IO did not record a supplementary statement,” judge Kshama Joshi said.

“It is crucial to note that the contradictions are often so glaring that the exact opposite of what the complainant girl is claiming yet IO did not question the complainant girl. It is settled proposition that acquittal of the accused can not result due to defects in the investigation, the evidences have to be scrutinised independently," the judge said.

Tejpal was accused by a junior colleague of assaulting her twice in November 2013, following which the former editor was charged with sections 376 (rape), 341 (wrongful restraint), 342 (wrongful confinement) 354A (sexual harassment) and 354B (criminal assault), of the Indian Penal Code. Tejpal was acquitted of all charges on May 21, even as the Goa government has appealed against the acquittal in the Bombay High Court. 

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