Tarun Tejpal case: 'Important for HC to take immediate cognisance', argues Goa Govt

As the Goa Bench of Bombay High Court on Thursday heard the challenge to the trial court order giving clean chit to Tehelka funding editor Tarun Tejpal, the Goa government argued that "It is important for women to know that High Court took cognisance immediately" The submissions from Solicitor General Tushar Mehta, who was appearing for Goa government, came in after the court questioned as to why the matter can't be heard in the normal course. (All high courts are currently hearing matters of utmost urgency).

Pointing out the discrepancies in the court order where the identity of the prosecutrix (victim) was disclosed, the Solicitor argued, "Normally I would have bowed down. But in this case, there is so much in the judgment.. It is important for women to know that the High Court took immediate cognisance." The Solicitor General also pointed out that the trial court ignored many pieces of evidence and the said judgment disclosed the identity of the victim. 

"Her identity will become public," said SG Mehta while high luting the importance of hearing the matter. 

Following these submissions, the bench passed the order directing the trial court to retract the identity of the prosecutrix and also the details regarding her husband's name and also her email address. "The order which is made available to this court, and which the court is informed is not yet uploaded on the website, contains a reference to the victim’s husband and her email id," said a single-judge bench of the high court presided over by Justice SC Gupte. 

Considering the law against disclosure of identity of victim in offence such as the one here It is directed to the trial court to redact the two references to the victim’s husband and her email id in the judgment while uploading the judgment. So also the reference to the name of the mother of the prosecutrix mentioned therein may be redacted.  

Raising questions on the order passed by the trial court acquitting Tejpal, SG Mehta argued, "This girl who is victim of sexual abuse, by person who is father’s friend approached eminent counsel of Indira Jaising for advice. According to me it was right, approaching a lawyer of her repute. In Indian jurisprudence for first time, what is recorded is, name of counsel is mentioned."

"Then there is submissions that this may have led to doctoring of events. To accuse a lawyer of her stature of doctoring…? Any person who is vicitm of sexual harassment has to exhibit trauma, that is the finding here," the Solicitor argued before the court. 

The high court will now hear the matter next on June 2.  In its detailed judgement, trial court judge Kshama Joshi had contradicted the testimony of the prosecutrix saying that how can an" educated journalist" didn't know whether she pulled up her underwear or picked it up.

"There is therefore material contradiction between the complaint email sent by the prosecutrix and the statements of the prosecutrix made under Sections 161 and 164 of CR. P. C. Such glaring contradictions cannot be expected from an educated journalist like PW1 and forces the Court not to believe the incident of rape," said the trial court.

Attributing to the WhatsApp conversations of the prosecutrix, the court had further noted that the WhatsApp chats of the prosecutrix, and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire because that is what the accused usually chose to speak to her about, unfortunately never her work, proves that the Tejpal and the prosecutrix had a flirtatious conversation.

Turning down the prosecutrix's desire to not give access to her email citing concerns of privacy citing that her phone details had already been used to humiliate her over her, the bench held the same to be an attempt to "hide something. Terming the victim's testimony implausible, the bench questioned as to why didn't the victim, who was physically fit and was aware of laws, didn't ward off or push away Tejpal. 

"This is a narrative of extreme implausibility and it is not possible to believe that the prosecutrix, 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 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," the court noted.

The detailed order of the trial also pointed out immense lapese in the investigation and also noting that the Imwvstigating Officer "destroyed crucial evidence"  In its detailed order dated May 21, Additional Sessions Judge, acquitting Tejpal noted, "The IO has in some cases, such as the CCTV footage of the first floor of Block 7 of the Grand Hyatt, entirely destroyed the evidence, knowing that it is necessary for the Investigating Officer to gather all the evidence through investigation."

The court also noted that the IO viewed vital CCTV footage of the guest lifts of the first floor of Block 7 of Hyatt Hotel on November 21, 2013 but even after knowing that the said CCTV footage shows the accused and the prosecutrix exiting the lift during the relevant 2 minutes on the first floor on 7/11/2013, and that the same would exonerate the accused, it didn't do so. 

"...the IO appears to have deliberately delayed seizure of the DVR until the 29.11.2013 and in the meantime, destroyed the CCTV footage of the first floor of 7/11/2013, thereby destroying clear proof of the Accused's defence," the order noted. 

"As the said CCTV footage of the first floor has been destroyed, the DVR produced before the Court, contains no files containing the CCTV footage of the first floor of the guest lifts of Block 7," the judge said.

The court also noted that the Investigating Officer has also committed omissions and commissions while conducting the investigation in the present case.  "...the IO has done no investigation on crucial and vital aspects of the present case," the judge noted in its order. Raising further questions on the officer's conduct, the court noted that Investigating Officer gave directions to other officers to download the CCTV footage only of the ground and second floor of the guest lifts, to destroy all traces of the CCTV footage of the first floor. 

The court noted that not only did she not seal the DVR room where the crucial footage was kept but also she never wrote in her case diary instructions given by her orally to the other officers during the investigation.  The court noted that the same wasn't done in order to remove all traces of instructions to visit Grand Hyatt to tamper and destroy the first floor footage.

"The I.O. did not verify during the scene of offence whether the buttons on the lift panel could be pressed to facilitate commission of any crime," the order noted

The judge further noted that till date the IO has not produced any empirical evidence to show that the buttons on the lift panel could be pressed to facilitate commission of any crime. Lastly, the court noted that since Goa Police took suo motu cognisance of the case, and Sunita Sawant being the initial complainant cannot be the Investigating Officer in the case but she did not move any proposal to her superiors to hand over the investigation to other officer.

"It is well settled that some defects in investigation cannot result in acquittal of the accused and even if the investigation is illegal or suspicious the evidence will have to be scrutunised independently of the impact of such investigation. Since otherwise, a criminal trial will plummet to the level of Investigating Officers ruling the roost," the judgment said. 

Commenting upon the conduct of the IO and giving a benefit of doubt to Tejpal, the order further said, "The settled proposition that the acquittal of the accused cannot result due to defects in the investigation cannot be disputed. However, a duty is also cast on the Investigating Officer to conduct fair investigation in the matter to bring out the truth. The Investigating Officer in the present case although have collected the CCTV footage of the ground, first and second floor but the footage of the first floor cannot be found for the perusal of the court which is a material lapse by the Investigating Officer."

"Upon considering the other evidence on record the benefit of doubt is given to the accused as there is no corroborative evidence supporting the allegations made by the prosecutrix and 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 while concluding the judgment. 

However, on Tuesday, the Goa government challenged the acquittal of former Tehelka Editor-in-Chief Tarun Tejpal in the 2013 sexual assault case before the Goa Bench of the Bombay High Court. Tejpal, who was accused of sexually assaulting a former woman colleague inside a hotel elevator was acquitted of all charges by a sessions court in Goa on May 21.  Tarun Tejpal, Tehelka news magazine's founder-editor who was charged with sexually assaulting a former woman colleague inside the elevator of a luxury hotel in the state, was acquitted by the Sessions Court last Friday.