The Goa Government has filed an amended plead at Bombay High Court against the judgement of Mapusa Session court of acquitting the founder-editor of Tehelka magazine Tarun Tejpal, citing lack of judgement as disbelieving the vict, on the basis of her past sexual history and legal bias against her, stated “on the basis of a conception of how a victim is expected to behave while being sexually assaulted”. The Goa Government on the courts findings replied, “unsustainable in law and is coloured by prejudice and patriarchy”.
Under Section 378 of the CrPC, the State government appealed for amended grounds before the Bombay High Court, that a case for retrial is made out due to several factors, especially because the judge allowed “scandalous,” “irrelevant,” “humiliating” questions were asked to the victim during cross-examination.
In its appeal, the state also challenged Additional Sessions Judge Kshama Joshi judgement over wiped out victim’s evidence that are not in conformity with Sections 53A and 146 of the Indian Evidence Act. These sections make it inadmissible and impermissible to ask questions about a victim’s past sexual history when issues regarding consent are involved.
“The Trial Court in its 527-page-judgment has been influenced by extraneous inadmissible materials and testimonies, graphic details of the past sexual history of the victim, prohibited by law and has used the same for purposes of censuring her character and discrediting her evidence. The entire judgment focusses on indicting the complainant witness rather than trying to ascertain the culpable role of the Respondent Accused,”, the Goa Government in its 66 pages amended grounds for appeal.
The appeal contented, “The cross-examination of PW1 (the woman) extending to almost 700 pages, spread over eighteen dates of hearing, was nothing short of a brutal attack on her character and alleged past sexual history designed to shame and humiliate her. Not only should these questions have been disallowed while recording evidence, but the Trial Court has gone so far as to use these very questions and materials to discredit PW1, although they were neither relevant to the case, nor could they have been put to PW1 under law.”
The government stated that the “demeaning and humiliating manner” in which the trial court’s judgment placed reliance on the minutiae of the happenings inside the lift “displays an attitudinal and perceptional bias” against the woman and it “tended to demoralise” her, the amended appeal states.
Goa CM Pramod Sawant government in its appeal contended, that woman’s qualifications and work in the field of gender was “bafflingly” used to discredit her testimony. It even stated that the court did not scrutinize Tejpal case as subject of high importance even after his defence said that personal and formal mail apologizing to the victim were sent, whereas not a single apology either sent by him nor sent at the behest of his sister and then Tehelka Maniging Editor. “The Trial Court also failed to appreciate the fact that the Respondent Accused himself was the Editor-in-Chief and owner of the Tehelka magazine, highly educated and a man in a position of power and
authority. It is baffling that while qualifications of the prosecutrix and her work in matters relating to gender have been used against her to discredit her testimony, the Trial Court has adopted no such standard while appreciating the farcical, belated, and wholly dishonest defence of the Respondent Accused that the emails of apology sent to the prosecutrix were either not sent or were sent at the behest of…”
Justice Joshi even passed judgement on the appearance of the victim post trauma, stating her to be appearing “happy and cheerful” and “not looking” traumatized enough. The state contended against the unnatural inferences of the court for smiling in pictures, after the two assault incident “betray a complete lack of understanding of post-trauma behaviour of victims, they also demonstrate complete ignorance of the law as also of the directions and guidelines passed by the Hon’ble Supreme Court of India in such matters.”
The State, termed “reflective of the prejudice of the Trial Court in believing the concocted version of the Respondent Accused,” criticising the trial court for it various observations pertaining the CCTV footage of the first floor of the five-star hotel. It stated that the trial court had “perversely cast aspersions on the Investigating Officer” regarding procuring the recordings (DVR) of the CCTV footage on November 29, 2013, and suggesting that the investigating officer had “destroyed the CCTV footage of the first floor of November 7, 2013.”
“Instead of ordering the Respondent Accused to play his clone copy of the CCTV footage in order to determine whether the footage of the first floor was absent or not, the Trial Court has held in its judgment at paragraph 287, pg. 436 that, when the DVR did not have it, the clone copy would not have it either,” it contented.
Journalisr Tarun Tejpal, was acquitted by Mapusa District and Sessions court in Goa on 21st May, of sexual harassment and rape case charges filed by a former colleague in 2013. Tejpal was accused of harassing the woman in an elevator of a five star hotel during an event in 2013. The Goa Crime Branch arrested him, for the same crime on 30th November 2013 and was granted bail by SC (Supreme Court) on July 14th, 2014.