Unlocking The Tejpal Case
The Tejpal case is an infamous case that began in 2013. It is now 2021, eight years ahead, and a clear judgement still seems to be on the way.
Tarun Tejpal, once a reputed journalist is now battling a case against him. The former editor in chief and co-founder of Tehelka Magazine was accused of sexually assaulting and harassing a junior colleague in the lift of Grand Hyatt, Goa on November 7th and 8th of 2013 during the Think Festival.
His acquittal of all charges by a session’s court in Mapusa, Goa on the 21st of May has angered many, including the state of Goa. The government appealed to Bombay High Court on 25th demanding a retrial. It believes the trial was unfair and the judgement of acquittal must not be granted. Before we engage in the debate of the trial, we must unlock the crime done and evidences involved.
The Case till Now:
After the case was filed by the complainant, Tejpal stepped down as the editor for six months. The police after investigation arrested Tejpal on November 30th 2013 and he was lodged at “Sada” sub-jail.
The charges framed by the prosecution against Tejpal are under the Indian Penal Code (IPC) Sections 341 (wrongful restraint), 342 (wrongful confinement), 354 (assault or criminal force with intent to outrage modesty), 354A (sexual harassment), 354B (assault or use of criminal force woman with intent to disrobe), 376 (2) (f) (person in position of authority over women, committing rape) and 376 (2) (k) (rape by a person in a position of control). This led to his arrest.
Later in February 2014, the Goa crime branch filed a voluminous 3000 page charge sheet against him that recorded the events from the perspective of prosecutrix. The chargesheet produced over 150 witnesses and the important e-mail apology written by Tejpal to the victim and Shoma Chaudhary, the then managing editor. He apologised for his lapse of judgement on attempting a sexual liaison with the prosecutrix.
The Supreme Court granted him bail on July 1st 2014. The apex court believed that there was no need for his incarceration as chargesheet had been filed. Tejpal was finally out of jail after six months.
In the following month of December, the trial began and evidences were recorded. Tejpal pleaded the court to rescind charges against him. SC asked the Bombay High Court to expeditiously decide on his plea for discharge, consequently the latter quashed his plea.
The trial has been pending for judgement and it was finally this year that the Mapusa Court chaired by Judge Kshama Joshi acquitted him of all charges on May 21st 2021.
The trial considered certain evidences and analysis before arbitrating Tejpal’s acquittal. Many of these have been extensively criticised by women activists, the Goa government and also the population on twitter.
The judge, Kshama Joshi, believed the complainant was not depicting normative behaviour expected of someone who underwent sexual assault and harassment. Joshi cited complainant’s testimony and said that she neither looked like she was holding back tears or anxious. The prosecutrix responded by saying she was acting in a professional manner and in the interest of her responsibilities.
Joshi’s ideology on behaviour relating to traumatic experiences seemed problematic, especially to the Goa government.
If the law laid down by the trial court is correct, looking "traumatised" after such incident is sine qua non and an educated girl who chooses not to create a scene is not a reliable witness," states the appeal by Goa Government on the trial inferring her post-assault behaviour and corroborating it in its judgement.
The trial further investigated why the complainant did not immediately fight back when the incident was taking place as she was educated enough to respond. Her qualifications, academic achievements, and being conversant with rape laws further discredited her testimony. The court felt she was an unreliable witness due to it. We must remember that the accused was also a prolific journalist, editor in chief and author of several books.
The defence’s argument was that a political vendetta was doctored against the accused as he was involved in anti-corruption investigations against the government. They believed the criminal charges were an attempt to dislodge him as a journalist. Thus some question the government’s interest in the retrial of the case.
The trial also corroborated the defence’s argument and further questioned why the complainant would seek legal advice. The complainant on the other hand sought legal advice from Advocate Rebecca John, Senior Advocate Indira Jaising, Advocate Persis Sidhwa and then National Commission for Women's Chairperson Shamina Shafiq for guidance and denied the allegations.
"The mere fact that PW-1 consulted senior advocates does not in any way lessen the credibility of her allegations." The state appeal says in favour of approaching senior advocates. The court took the traits of complainant in great consideration. Her sexual history was also pointed at in detail. Complainant was asked bizarre questions and the trial might have overstepped its legal boundaries. The state believes the court put the victim on trial instead of the culprit.
“The trial court in its 527-page judgement has been influenced by extraneous and inadmissible materials and testimonies, graphic details of the victim'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 CCTV Footage:
The court framed its judgement around not only the defence’s statements but also the CCTV Footage.
The victim stated that they were in the lift for a duration of two minutes and the accused ensured the lift continued to move so that the doors would not open. The defence stated that both of them mistakenly exited from the lift of the first floor, making the CCTV footage of that floor crucial in assessing issue.
The investigating officer had deleted the footage of first floor making it difficult to prove the latter’s perspective. Judge Kshama Joshi sided with the defence as it considered the prosecutor’s statement vague and unreliable. The victim was unable to specify the button accused pressed "which makes her version that one button was used by the accused to keep the doors closed, absolutely doubtful" said Judge Kshama Joshi regarding her assessment. The judge also considered the footage that showed the said lift opening at least twice in ground floor.
The judgment says, "It is obvious that the accused, immediately on knowing that the FIR was registered, made a public press statement that the police should obtain all CCTV footage available so that the truth surfaces, knowing that the CCTV footage would reveal the truth and that he would be exonerated." On Tejpal possessing a copy of the footage.
As the prosecution failed to produce the footage of first floor, it gave the benefit of doubt to the defendant.
The state’s leave to appeal criticises this assessment and states that the footage was pending before the court for six years that could have led to decay or demise of data. It also noted how the defence’s take on ‘mistakenly’ exiting the lift on first floor was not stated before while the victim’s statement has been ‘unwavering’.
A credible source of evidence was the informal apology written by Tejpal to the prosecutrix. He continually apologises for his lapse of judgement and moves on to explain his act “We were playfully and flirtatiously talking about desire, sex”
“It was in this frivolous, laughing mood that the encounter took place. I had no idea that you were upset, or felt I had been even remotely non-consensual” he further says.
Finally he apologises by saying “because you felt I had imposed on you (which had neither been my reading or intention), and because I felt I had been totally irresponsible and foolish to have anything furtive to do with my daughter's intimate friend”
These statements hint towards him accepting he committed the acts. However the judge believes that “there is absolutely no admission or confession of any incriminating fact even remotely suggesting sexual assault”
The other formal apology was directed to Shoma Chaudhary the then managing editor. In this apology he too admitted in a lapse of judgement and engaging in sexual liaison with the complainant. The judge however dismissed this telling evidence and supported the defence’s take. The defence explained that the apology was written due to the pressure from Mrs Chaudhary.
Even if the mails are not an absolute confession, it does reveal a sexual encounter between them that could have easily crossed the lines to be non - consensual. However the judge still limits the interpretation to “drunken banter” and not key evidence.
The judge also elaborates at the inconsistencies in the statements of the witnesses and victims. One such notable instance is deposition provided by the primary witness, who met the victim just after she got out of the lift and the conversation is as follows: "guess who I've been flirting with?" asked the victim. "Is it Robert De Niro?" replied the primary witness and to that the victim said "No, it’s TT (Tarun Tejpal)" The victim in her chargesheet did not state anything relating to this.
Judge Joshi also criticised the complainant for changing her words from “pulling up underwear” in chargesheet to “picking up” in cross examination.
It is important to note that the chargesheet was filed in 2014 and the cross examination began in 2019. The gap between the crime committed and judgement is of over five years, making the aspect of human error in recalling plausible.
PRESENT TIME UPDATE:
"The judgment goes into how she (victim) responded. There are some observations on this. It is like a manual for rape victims," Justice Gupte of Bombay High Court said. The notice has been issued to Tejpal and posted on June 24th. The High Court said the judgement did not include the prosecution’s case and thus it was implausible.
The case is thus twisted with contradictions and lack of evidence. Questions to be considered is:
Was there a legal bias towards the victim due to her sexual history? Is the defendant’s take on the cctv footage enough to side with it? Is the acquittal just due to lack of incrementing evidence? If the matter was completely consensual, why were the apologies sent by Tejpal? Should victims be shame struck to qualify as actual victims?
Response to traumatic or distressing events is subjective. By stating she didn’t display normative behaviour sets an unethical objective criterion towards assessing the credibility of her statements.
Deviating to unravelling the victim’s sexual history by analysing her chats and conversations, deviates from the purpose of the trial to uncover the crime committed by the culprit. Why wasn’t the accused put under such scrutiny? Is it difficult to accept a woman’s word? Why wasn’t the benefit of doubt offered to the victim instead?
The answers to these questions must be answered and the case must be approached with equal consideration to both contenders. India is a country with sky high cases of sexual crimes, any case where justice fails to prevail renders, to some extent, the chance of injustice prevailing again.