Another rape accused walks off scot-free

In a country where 32,033 rapes are reported every year, the survivor was humiliated all over again, for not being the Sati-Savitri stereotype

Portions of Judge Kshama Joshi’s judgment acquitting celebrity journalist Tarun Tejpal of raping his junior in a lift in Goa on November 7 and 8, 2013, seem to show the victim had consented to the sexual advances of Tarun Tejpal - which may not be the truth. The shock acquittal of Tejpal comes over four years after Judge Vandana Tendulkar acquitted Samson D’Souza and Placido Carvalho of raping and killing Scarlett Keeling at Anjuna in Goa in 2008. Goa has now emerged as a tourist destination where women seem unsafe.

Unlike Keeling, Tarun Tejpal’s alleged victim may regret having sought justice. Like the botched Scarlett Keeling probe in 2008 by a thoroughly incompetent police officer, here too, Judge Kshama Joshi has blamed the IO Sunita Sawant for not producing the recording of the first floor, outside the lift where the alleged rape took place on November 7 and 8, 2013.

Like Scarlett Keeling, who was branded sexually active after she was murdered, in a country where 32,033 rapes are reported every year, the survivor is humiliated all over again, for not being the Sati-Savitri stereotype. The Goa high court sentenced Samson D’Souza to 10 years RI but how it will decide Tarun Tejpal’s fate is left to be seen.

Tejpal’s acquittal shocked many because immediately after the alleged rape, he had written: “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.”

This amounts to a clear admission of guilt. But the judge’s observations - “the victim neither demonstrates any kind of normative behaviour on her own part that a prosecutrix of sexual assault on consecutive two nights might plausibly show, nor does it demonstrate any such behaviour on the part of the accused” which “did not inspire confidence” appear trite.

The words “did not inspire confidence” are subjective, used time-and-again by judicial officers who acquit accused persons charged with heinous crimes by rigorously scrutinising the demeanour of the victims. Justice Pushpa Ganediwala, whose confirmation as a high court judge was revoked recently, used the same words when she acquitted a man under POCSO, because there was “no skin-to-skin contact” between the accused person and the child-victim.

To revert to the Tejpal case, “If the prosecutrix (victim) had held her jaw firmly closed how would it be possible for the accused (Mr. Tejpal) to put his tongue into her mouth? If the prosecutrix pushed the accused instinctively and reflexively, why wouldn’t she push the accused before he kissed her?” are some of the reasons why the victim’s evidence “did not inspire confidence”. Whether the high court will disagree with these observations remains to be seen.

There is no doubt that the omission of the DVR of the first floor, outside the lift, is a material lapse which redounds to the benefit of Tarun Tejpal. But such lapses must be weighed against the evidence of 152 prosecution witnesses - of whom 72 deposed in court. The definition of rape includes consent, if it is obtained by threat or mistake. The survivor’s previous sexual history is immaterial.

Hence, Judge Kshama Joshi’s observation that “the messaging record shows that it was entirely the norm for the prosecutrix (survivor) to have such flirtatious and sexual conversations with friends and acquaintances,” and “……her admission that the accused spoke about sex or desire because that is what the accused chose to speak about instead of her work…proves that the accused and the prosecutrix had a flirtatious conversation on the night of November 7,” the judge said.

Weighing evidence is not an exercise in arithmetic because the disposition of the judge and her mental conditioning comes into play to decide whether the prosecution has proved the case “beyond reasonable doubt”. Without doubt, Judge Kshama Joshi’s reasoning appears convincing and non-controversial.

But when pure questions of law are debated in the high court, the result may be overturned. A magistrate, Narayan Amonkar, who was first elevated as an assistant sessions judge and later reverted back as a magistrate was the only judicial officer to frame charges against a man accused of demolishing shrines when the only evidence against him was his own confession. This is inadmissible as evidence.

The court 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 Tehelka) whereas the statement of the woman’s mother “do not corroborate or support the statement of the complainant girl that she was in trauma due to alleged rape, as neither the complainant girl nor her mother changed their plans”.

The judge said the survivor had made many conflicting statements “on record, which create doubt on the truthfulness of the complainant girl…… The I.O. destroyed vital evidence in terms of CCTV footage of the 1st floor of 7th block of the hotel, which was clear proof of innocence of the accused”. However, if this evidence was destroyed, it is impossible to deduce this evidence would have exonerated Tejpal.

“Sunita Sawant being the (initial) complainant (Goa police took suo motu cognizance of the allegations) but she did not move any proposal to her superiors to hand over the investigation to another officer," the court said. A complainant cannot investigate her own complaint. The judge has made a good point.

“The 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 CCTV footage indicates 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 contradiction between CCTV footage and statement of the complainant girl, yet IO did not record a supplementary statement,” the trial court said.

“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 cannot result due to defects in the investigation, the evidences have to be scrutinised independently,” the judge said.

And so, like Scarlett Keeling and a rapist-cummurderer from Kerala whose sentence was commuted by the then CJI Ranjan Gogoi, rape survivors seem powerless to prevent injustice. And having more women judges may not be the right answer because those who acquitted the rapists were women judges.

There is no doubt that the omission of the DVR of the first floor, outside the lift, is a material lapse which redounds to the benefit of Tarun Tejpal