New Delhi: Evasive answers during cross-examination, twisted interpretation of the context in which the complainant received messages from the accused, CCTV footage contrary to her version, absence of medical evidence and failure of prosecution to prove that the alleged assault took place inside the hotel lift are among the many reasons why a Goa court acquitted Tarun Tejpal, former editor-in-chief of Tehelka magazine, in a sexual assault case.
“Upon considering evidence on record…benefit of doubt is given to the accused because there is no corroborative evidence supporting the allegations made by the complainant girl,” Additional Sessions Judge Kshama Joshi wrote in her 527-page long judgment, which dissected the prosecution evidence minutely to rule in Tejpal’s favour.
The court had, on 21 May, announced that Tejpal was innocent, bringing an end to the seven-year-old case lodged against him by a former colleague. The alleged incident took place at a five-star hotel on 7 and 8 November 2013 at a festival organised by Tehelka in Goa. The assault allegedly took place in the lift of a hotel.
The Goa Police Tuesday challenged the acquittal order before the Goa bench of the Bombay High Court.
The judge thrashed prosecution witnesses in the case and held that they deposed falsely, while pointing contradictions in their versions.
On the complainant’s statement, the court said it cannot be a deposition of “sterling quality,” which inspires confidence and is absolutely trustworthy to convict the accused. The judge said many facts came on record that “create doubt on the truthfulness of the victim.”
According to the judge, the version of the complainant — beginning from the first complaint to a senior editor of the magazine, her statement before the police and magistrate to the cross-examination during the trial — constituted either “material omission, contradictions or improvements in her original narrative, shifting details of the account she had preferred”.
Tejpal’s lawyer, senior advocate P.K. Dubey, said the case does not merit an appeal.
“It is an exhaustive judgement that examines the prosecution evidence to its core,” Dubey told ThePrint.
No medical evidence
The court found that the case lacked medical evidence, which could not be gathered on account of delay in lodging of the FIR that was registered on 21 November 2013, 13 days after the alleged incident.
During the cross-examination it emerged that the complainant had herself refused to go for medical examination. When asked why she did not present herself, the complainant claimed the police never asked her to go for it.
She denied the suggestion that she refused to go for medical examination. However, she admitted during trial of having endorsed a police letter sent to her on 26 November 2013, in which she wrote that she does not need a medical check-up.
The court recorded her statement claiming she was unaware that medical evidence disappears if the FIR is delayed and also admitting she had no understanding of medical evidence in rape cases.
She further said she never filed any complaint with the police but was approached by them and as a law-abiding citizen she cooperated. The court termed the statement — that she was scared of the police process and had therefore opted to complain to her organisation — as false.
CCTV footage does not corroborate her statement
Based on the CCTV footage of two floors of the hotel, ground and second, the court held the complainant’s narrative changed about the events that preceded her and the accused’s entry into the lift, followed by their exit on the two days that she was allegedly assaulted.
“The improvement in her statement was both of the physical circumstances of the moments and of her claims of distress, tears, trauma and resistance,” the court held.
The complainant was confronted with the CCTV footage for the first time on 28 November 2013, long after she had recorded her statement with the police and magistrate.
The CCTV footage showed the complainant talking to Tejpal for about five minutes before the incident and when she was asked about it, she remained evasive, the judgment records.
And, while the complainant had claimed that Tejpal had pulled her back into the lift on the first day of the alleged assault, the footage showed otherwise. The two were seen walking out of the lift, with Tejpal putting his arm around her shoulder and going towards the main entrance of the hotel. The footage showed the two coming back into the lobby of the ground floor and re-entering the lift on the same night.
The next day’s CCTV footage, on 8 November 2013, showed that he did not touch the complainant, while in her statement she had stated that he had grabbed her wrist to pull her in.
According to the complainant, Tejpal had himself offered to accompany the complainant when she was going to drop actor Robert DeNiro and his daughter back to their rooms. But the court held this version as untrue.
Improvements in her statement
In the court’s view, the complainant kept improving her statement and did not even disclose the true facts to her three colleagues in whom she had confided about the incident on the day of the assault.
The three were cited as prosecution witnesses and had during their cross-examination claimed that the complainant only spoke about molestation but not assault.
Furthermore, none of the three helped the complainant reach out to their magazine’s senior editor Shoma Chaudhary, who was present at the venue at the time of the incident.
“None of the three seem to have demonstrated absolutely any urgency with regard to a course of corrective action while the prosecutrix’s narrative of distraughtness and tears and anxiety speaks about emotions and urgencies,” the judge noted.
The complainant reached out to Chaudhary to address her grievance only on 16 November 2013, through the mail. And, when the matter got reported in the press and a case was registered, she then went on to record her statement with the police magistrate.
However, the judge found a material contradiction in the complainant’s three statements.
In her complaint to Chaudhary she had mentioned that “she had picked up” her undergarment after the assault and before stepping out of the lift. But in her statements to police and magistrate she mentioned she “pulled up” her undergarment.
“Such glaring contradictions cannot be expected from an educated journalist like her,” the judge noted.
Furthermore, her version was not supported by her three colleagues.
Contradictions on record of the victim on being kissed
The judge also doubted the complainant’s claim that she was kissed by the accused whom she pushed as hard as she could.
“If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed her and when she was pushed up against the wall or at least put her hands in between to prevent the accused from coming close,” reasoned the judge.
It said it was 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 pushed up against the wall, especially when she was facing him and especially when she saw the accused coming uncomfortably coming close to her in her private space.”
The victim did not answer a defence counsel’s question of whether she moved her chin or face, rather she changed her statement twice, the judge noted.
Another reason why the judge doubted the complainant’s credibility as a stellar witness was her inability to recollect whether she had caught her dress when the accused lifted it before assaulting her, as alleged.
Furthermore, the court said, the complainant lied that she wore a tight-fighting dress, while the CCTV footage showed it was a flowing one.
Personal apology not voluntary, doesn’t amount to confession
The judge dismissed the prosecution theory that Tejpal had confessed to the assault by admitting it in a personal apology sent to the complainant.
In his defence, Tejpal had claimed that he only had flirtatious conversation, with sexual overtones, with the complainant.
“The email reveals that there is absolutely no admission or confession of any incriminating fact even remotely suggesting the sexual assault by the accused. The word sexual assault or any of its attributes are neither implicitly nor explicitly stated in the personal email,” the judge concluded.
Tejpal had denied the incident and even disputed the complainant’s claims. But he offered an apology to any discomfort she might have felt due to the conversation between the two, which he described as drunken banter, the court noted.
It was a confession caused by inducement and cannot be read as evidence against him, it said. Furthermore, according to the court, the personal apology was under duress in the garb of a closure of case.