In March, the Supreme Court set aside a Madhya Pradesh High Court order asking a man accused in a sexual assault case to get the complainant to tie a rakhi to him as a condition for bail. The Supreme Court also issued several guidelines on how courts should handle orders relating to sexual crimes.

One of the key points the Supreme Court discussed was the desire of courts to find the “ideal sexual assault victim”.

“Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc,” the court observed.

On May 21, as a Goa court acquitted former Tehelka editor-in-chief Tarun Tejpal in a rape case registered in 2013, the judge did exactly what the Supreme Court had advised against: the court looked for an “ideal sexual assault victim” and has discredited almost every claim the complainant had made about the assault.

Tejpal had been accused of sexual assault and rape by a younger colleague. The 527-page judgement was made available on Wednesday,

What is glaring in the judgement is the difference in standards the judge has used in ascertaining the veracity of the statements of the complainant and the accused. Even though the court made it a point to state that the complainant’s sexual past was not relevant to the current case, a reading of the judgement shows that allegations about her past were repeatedly used under the garb of verifying the authenticity of her claims.

Adding to the problem was a shoddy investigation by the police that resulted in crucial evidence being omitted.

The case

The case has its origins in November 2013, when a company owned by Tejpal and some others organised an event in Goa called THINK fest, featuring discussions with leading figures. The 2013 edition was of particular interest as it had Hollywood legend Robert De Niro as a guest.

The complainant was a journalist at Tehelka and had been given the task of taking care of De Niro and his daughter. The complainant alleged that Tarun Tejpal, who was then the magazine’s editor-in-chief, assaulted her twice during the festival. Both times, the assault occurred inside lifts. The first assault took place on November 7 and the second the next day.

The complainant did not immediately complain to the management of the magazine but on November 18 sent a detailed account of the incidents to the managing director Shoma Chaudhary.

Following this, Tarun Tejpal sent two emails expressing his regret at the incident: one to the complainant personally and the other to the staff of Tehelka. After the matter became public, the Goa police took suo motu cognisance of it and registered an FIR. The police then took statements from the complainant and also got a magistrate to record her statement under Section 164 of the Criminal Procedure Code.

However, it took almost eight years for the trial to conclude. In fact, the complainant was cross-examined only in 2019, six years after the incident.

On May 21, the court acquitted Tejpal, stating that the prosecution failed to prove the case beyond doubt.

Doubting the complainant

The judgement seems to be an exercise to show that the complainant’s testimony could not be relied upon. It contains very few extracts of the accused’s testimony, even as hundreds of pages are spent closely scrutinising even minor deviations in the complainant’s statements.

The judge sets up this analysis by explaining why the court was doing so. By law, the testimony of the complainant itself is enough to convict a person on rape charges. However, the testimony has to be “sterling” in nature without obvious and significant contradictions. It is only when the court feels that the account of the complainant cannot be relied upon that the exercise of corroboration is undertaken.

It is also important to note that the testimony cannot be put to the test of corroboration merely for minor discrepancies in statements: anything found to be problematic has to be significant enough to raise doubts about the very fundamentals of the claim.

A reading of the judgement shows that the court has done exactly the opposite. In this process, it has gone on to destroy the complainant’s reputation. Through the process, it becomes obvious that the court is attempting to find the “ideal sexual assault victim”. It makes extraordinary presumptions about the complainant’s ability to satisfy legal standards since she was a well-read journalist who has reported on sexual crimes.

Very early in the analysis, even when the court was merely listing the various claims in the testimony, the judge attempts to qualify the complainant’s statements with doubt.

On page 61, for instance, as the court recounts that the complainant said she was in shock and trauma when she exited the lift after the first sexual assault on November 7, 2013, the court immediately states: “The CCTV footage does not support the statement that she was in shock or trauma and blinking in tears.”

This is the first sign of the hunt for the “ideal sexual assault victim”. The judge seems not to realise that people exhibit shock and trauma in different ways and that there cannot be a common standard for reacting to a sexual assault. The judge does not clearly explain how the complainant should have been expected to react.

The complainant has all through her testimony maintained that her decision to remain at the festival was due to the fact that she wanted to carry out her professional responsibilities and feared that she may lose her job if she failed to do so. For the complainant, a young journalist who had been given a very important task of attending to the most important guest of the festival, leaving the forum abruptly would be an abdication of duty.

However, the court does not seem to believe this is plausible. Relying on photographs that were taken during the festival that apparently showed the complainant to have been in a good mood, the court dismissed her claims of trauma and thereby her claims of assault itself.

In a defining observation on what had happened after the complainant exited the lift, the court noted:

“The printouts of photographs clearly proves that the prosecutrix was absolutely in a good mood, happy, normal and smiling.. she 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 by the accused putting her in a state of panic and trauma.”

Another aspect of the judgement was the fact that though the judge glosses over several pieces of evidence, especially WhatsApp messages, in line with the law that the complainant’s past is irrelevant in determining consent in a sexual assault, the judgement is filled with extracts that point to her past under the guise of establishing the authenticity of her statements. This stands out in the reproduction of the testimony of one of the defence witnesses, claimed to be the first person she met after the assault.

Of note is the fact that this witness had voluntarily written to the police to testify after a few months and his version was in line with the accused’s claim. The statement tries to paint the complainant as promiscuous.

One of the most glaring aspects of the judgement is how it revealed the identity of the complainant casually in the garb of analysing evidence. The judge has not shown any sensitivity to the fact that a judgement should not reveal any details that could identify the victim, which when done is normally a criminal offence. In one section, documents bearing the complainant’s name are repeatedly cited, as also her email address. On Thursday, the Bombay High Court ordered these sections to be redacted.

Differing standards

A striking aspect of the judgement is that it holds the complainant and the accused to different standards. The former is forced to submit to an extraordinarily high standard for her testimony.

For example, in the very early parts of the judgement, the court labours to paint a picture that the complainant as a journalist who had reported on sexual crimes was aware of the law on rape. There also seems to be an assumption that a person who is as good at writing as the complainant could not have made certain mistakes in the different testimonies she had given before the authorities.

In a striking observation, the court picked up on a slight difference in language that the complainant had used in describing what happened during the first assault on November 7, 2013. In the complaint she had sent to her managing editor on November 18, the complainant had said that Tejpal forcefully pulled down her underwear during the assault. She then had stated that before exiting the lift, “she picked up her underwear”.

In the testimonies to the police and the magistrate, the court points out that this version changed. And how did it change? Instead of saying she “picked up her underwear”, the complainant had said “she pulled up her underwear”. The judge said this was a significant contradiction has “picked up the underwear” would mean the undergarment was on the floor of the lift, which would mean that the complainant lifted her legs during the assault, something that she was not able to recall during her examination.

“Such glaring contradictions cannot be expected from educated journalist like PW1 [prosecution witness 1] and forces the court not to believe the incident of rape,” the judge said.

This is a classic example of how reading too much into minor discrepancies in the statements could cause the whole case to break down. This is exactly what the Supreme Court has asked trial courts not to do.

All through, the complainant is questioned about her inability to remember finer details during the assault, even though her responses were to the point. One of the repeated observations was that the complainant was not able to remember if Tejpal pressed one button or several buttons on the lift panel to keep the doors from opening. To expect a complainant of sexual assault to observe such details when her body is being violated by a man is a jarring aspect of the judgement itself.

Even the complainant’s attempts to reach out to lawyers and others about her case has been pointed as possible attempts to improve her testimonies while no such accusations are made for the accused.

Accused’s version

When it came to the accused, the standards seem to have been more lax.

To illustrate this: while the court cites several instances to state that the complainant did not behave in a manner that is expected of an sexual assault victim, the accused’s version is taken at face value.

One of the crucial elements of the judgement that tipped the scales is the court’s finding that the apology email that Tejpal sent to the complainant was under duress.

The court finds that it was Tehelka managing editor Shoma Chaudhary who drafted the statement and forced Tejpal to send it because she was upset and wanted to protect the reputation of the magazine.

At no point does the judge realise that Tejpal was not just the editor-in-chief of Tehelka, but he was also the owner of the magazine. There would be no reason for someone in Tejpal’s position to send such an email without basis as the court itself records through the testimonies that he too was someone who was well aware of the law.

Tejpal’s version is accepted on the argument that the complainant in her email wanted an acknowledgement of the assault to bring her “closure”. This means Tejpal thought the matter would end with the apology. However, the complainant replied to the apology and pointed out that it undermined the crime and in a manner was not a real apology at all.

The court used this reply by the complainant to assert that Tejpal in the apology had not actually accepted the charges, that it was not a confession and that it was evidence that he had been consistent from the beginning that what happened between the two was merely “drunken banter” misunderstood by the complainant.

Even witnesses have also been treated differently.

At one point, the judge raises serious questions about the testimonies of three colleagues in whom the complainant had confided about the incident right after it had happened on the first night. On the other hand, the testimonies of Shoma Chaudhary and Tejpal’s sister are used to strengthen his case by selectively using elements from their statements and excluding some others as being legally untenable. For example, statements from employees that Chaudhary had assured the staff that the apology was an acceptance of the sexual assault was dismissed as not binding on Tejpal.

Prosecution’s failure

Adding to all this is the fact that the prosecution seems to have bungled on many counts in the investigation.

It failed to collect crucial documentary evidence, such as the CCTV footage on the first floor of the hotel since Tejpal claimed that he and the complainant had exited the lift on the first floor once to explain why it took two minutes for them to get to the ground floor from the second floor. This is cited by the court as a clinching omission that bolsters the case of the accused.

The prosecution also failed to examine key witnesses, including Tejpal’s daughter, who was one of the persons the complainant had informed about the sexual assault at the hotel itself, something that even Tejpal is aware given the nature of messages exchanged between him and the complainant.

The Goa government has appealed against the verdict in the Bombay High Court.