By Hardev Sanotra & Vivian Fernandes
Every once in a while a case comes which makes us sit up and take notice. The February verdict of a Delhi court in a defamation case filed by M.J. Akbar, a seasoned journalist and former minister in the Modi government against a job interviewee is one such. In tweets and articles in 2017, she had accused Akbar of sexually inappropriate behaviour as editor during a December 1993 job interview in Mumbai. Based on the testimonies of other women, the court dismissed the case and questioned the claim of Akbar to a “stellar” reputation. Akbar has appealed the judgment.
Now comes another verdict that has raised the hackles of women’s rights activists, journalists, lawyers and some leaders of the Bharatiya Janata Party. On 21 May, in State vs Tarun Tejpal, Goa additional sessions court judge Kshama M. Joshi upheld only one charge, that of Tarun Tejpal being in a position of control and dominance in relation to his rape accuser when he was editor-in-chief of Tehelka magazine. The judge dismissed five other charges of rape, sexual harassment, wrongful restraint and use of criminal force to disrobe a woman and outrage her modesty.
The Goa Government has appealed the acquittal in the Bombay High Court. The Solicitor General, Tushar Mehta, has made time from weightier legal issues to plead the case of the state government in favour of the woman who claims to have been criminally violated. But for the profile of the accused, the case may have evoked little interest. Tehelka has time and again written articles against the BJP government at the Centre and state, largely on Gujarat. It is still smarting as is apparent from the deployment of the SG.
The alleged crime happened in less than four minutes. The venue was two lifts in a two-storey block at a swanky hotel in Goa, the Grand Hyatt in Bambolin. The occasion was a literary festival with celebrity glitter. The chief guest and main speaker was the Hollywood actor, Robert De Niro. Indian movie stars and eminences from other fields were present too. The crucial dates were 7 and 8 November, 2013. The woman in the eye of the storm was very young – about half the age of the accused. She had begun her journalistic career just four years earlier in his organisation.
The woman or victim or prosecutrix says that on the evening of 7 November, she and the accused had dropped the Hollywood actor and his daughter (both of whom she was assigned to chaperone) to their suite on the second floor. After that they had come down the lift talking, at around 10.20 pm. Soon after, the accused suggested that they return to the actor’s suite and wake him up. Once in the lift she says, he forced his tongue into her mouth. Then he got down on his knees, lifted her dress, pulled down her underwear to her ankles and inserted his tongue into her vagina. He then stood up and put his fingers were his tongue was. She says she conveyed to him it was wrong, told him to stop and physically resisted.
In her testimony, the woman said that during their two minutes in the lift, the doors did not open. She suggested the accused had contrived to keep them closed by pressing some buttons or button. When the lift opened on the second floor, she was on verge of rushing out but was hampered by her underwear which she had to pull up. She came out adjusting her dress, in a state of shock and trauma and blinking back her tears, she stated. The two of them took the stairs and walked down to the ground floor. She headed for the garden area chockfull with guests having dinner. She was unable to cry publicly, she said, because of the guests. She took a taxi and went to another hotel where Tehelka staff were staying and disclosed the incident to four of her male colleagues and called abroad and told her partner (and later, husband) about the incident on phone.
The next evening, she says, she met the accused in the hotel courtyard and he suggested that they go to the actor’s room to fetch something. Despite her stress, anxiety and apprehensions, as she put it, she accompanied him. At the lift, he briefly spoke to Rohit Chawla, a photographer who walked into the lift lobby. Since he was her boss, she said she had no choice but to follow him. (The camera footage, according to the judge, showed her waiting at the lift doors for him to finish speaking. It does not show him pulling her in, as she alleged).
In her telling of the incident, when the doors closed, he repeated his previous act of kissing her deeply in her mouth. She pushed him. He then lifted her long dress. When the lift stopped on the second floor she stepped out, followed by the accused. She said she rushed into the corridor outside the lift in panic. Unable to think clearly, she said she turned and ran right back into the lift into which the accused was also moving. On the way down, he grabbed her buttocks. This incident lasted less than half a minute.
The conviction of a person accused of rape or sexual harassment can be based on the sole testimony of the accuser. The judge says this is the settled proposition of law as per the Supreme Court. But the accuser’s deposition has to be of “sterling value”. It must inspire confidence and be trustworthy and reliable. No corroboration is required unless there are compelling reasons. Minor contradictions and discrepancies are not grounds for discarding the accuser’s evidence. Corroboration is not essential if the evidence does not suffer from ‘infirmity,’ and the ‘probabilities factor’ does not render it unworthy of credence. The judge says quoting case laws and the Indian Evidence Act the inference that the accuser is a woman of ‘loose moral character’ is not permissible even if shown that the victim is habituated to sexual intercourse.
But the judge also held that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish, and the onus never shifts. The prosecution has to stand on its own legs and cannot take support from the weakness of the defence’s case. She quoted a Supreme Court judgement to state that however great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted of an offence. The judge also cites the Supreme Court to assert that the principle that the accuser must be believed cannot be mechanically applied. The accused must be protected against the possibility of false implication.
The accuser’s narration of events gives scope for the judge to doubt her testimony. The first person she met after the 7 November incident was an intimate friend, Nikhil Agarwal. She had mentioned this fact in her statement prepared on 15 and 16 November, 2013 detailing her recollection of the incidents (and sent to some of her colleagues), but concealed it from the police and the magistrate before whom she made a statement.
When confronted with the omission during cross-examination, she said Agarwal was not a friend. But she had exchanged about 4,000 WhatsApp messages with him in the previous 15 months which contained her “innermost truths and secrets,” the judge noted. In his testimony, Agarwal said that when she walked up to him she was smiling and was “excited”. He remembers her asking him to guess who she had “flirted” with? This was right after she had been allegedly assaulted. When he suggested it might be the Hollywood actor, she had said it was “TT” (as the accused is called).
In her cross-examination, the woman also said she was not compelled to tell Agarwal about the assault on 7 November because he was swaying, apparently drunk. Next day, according to Agarwal, she told him the details. She also sent him Whatsapp messages stating: “Thank God I found you. You can’t talk to anyone about this, obviously.” The judge said the messages contradicted the prosecutrix’s claim that Agarwal was drunk and swaying.
About 10 days later when he invited her to his wedding in Mumbai, he was surprised to know that she was on the verge of losing her job. If a grave – sexual assault – offence has been committed and he knew it, he would not have expressed surprise, the judge reasoned.
Agarwal had offered to make a statement to the police before the case went to court, but for whatever reason he was not examined at that point. He appeared as a defence witness. The judge found the footage of the camera on the second floor corroborating the witness’ testimony. It does “not support the statement that she was in shock or trauma and blinking back tears,” she observed. The judge said that the cross-examination of Agarwal did not make “the slightest dent in his testimony.” She said his evidence “demolishes the version of the prosecutrix.” She also found the evidence of the three colleagues in whom the woman had confided about the alleged assault to be less than believable.
During the relevant two minutes, the judge also found the lift doors had opened twice on the ground floor — evidence which was in strong contrast to the woman’s testimony that the lift doors did not open.
The defence said it was the woman who had asked the accused to accompany her to see the actor off to his suite on 7 November. According to the statement of the accused under Section 313 of the Criminal Procedure Code, they talked about her sexual encounters, including with activist and Irish rock star Bob Geldof at the previous year’s edition of the Tehelka literary event at the same hotel. She had, he said, teased him to guess which she preferred — oral or digital sex with the rock star.
The ground floor camera footage of that time shows him with his arms around her leaving the lift area and walking into the open. When they re-enter less than six minutes later within the sight of the ground floor camera, he is holding her by the forearm. The accused says they were engaged only in “drunken banter” before they re-entered the lift. He denied that anything other than that happened in the lift. He said they got off on the first floor by mistake, walked to the end of a corridor, returned to the lift and got off on the second floor. That explains the two-minute gap (captured by available camera footage) between them entering the lift on the ground floor and exiting on the second floor, he said.
The fact that the woman was seen adjusting her clothes and the accused wiping his mouth (in the camera footage) could have been an innocent gesture, but in light of the accusation it signified that something other than banter had happened in the lift. The judge, however, did not find that important to dwell upon.
On 8 November, after the second alleged sexual assault, the accuser sent three messages to the accused telling him that she was at the Capiz Bar with the Hollywood actor, without him asking. The judge notes that this “unnatural conduct” of the accuser was quite relevant under the law on evidence.
Critics have excoriated the judge for her observation that the woman’s manner after the alleged assault was not “normative.” They perhaps think that she had expected her to be gloomy and withdrawn. That does not seem to be the case. The judge has not indicated that the woman should have measured up to an ‘ideal’ standard of conduct. By normative, she possibly meant ‘normal’ dejected manner that could be expected of persons under similar circumstances. Commenting on the woman’s statement that she had strongly struggled in the lift to stop the accused, the judge said that her narrative showed “extreme implausibility” and that “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.”
The woman had confided in her mother only on 9 November about the two incidents. Her mother had not asked her to rush back to her flat in Mumbai, nor had she decided to come to Goa. The judge raised a question mark over the mother’s behaviour. The woman had also not told her female room-mates (and friends) about the first incident and they had not noticed anything particularly wrong when she spoke to her long-distance partner over the phone that night.
On the afternoon of 8 November, when a friend sent her a message asking her how the literary event was faring, she replied rather flippantly that she was chaperoning the actor, or “am basically attached at the hip.” The judge observes that on the intervening nights of 8/9 and 9/10 November, she was in the actor’s suite at an “unnaturally” late hour, beyond the call of duty. Her WhatsApp messages to a friend in Mumbai revealed, according to the judge, that she had sex with him.
She also posted pictures on a WhatsApp group of her with the actor and his daughter on the beach on 9 November. That night she was seen partying at the hotel bar well past midnight. The next day she was seen calling out to the accused, according to at least two witnesses, to pose with her and the actor for a photo at the Green Room of the event. The judge observes that after the literary event, she stayed back in Goa, rather than join her mother in Mumbai, to be with a male Russian friend.
The salacious bits that emerged during the trial about the woman’s sex life have been held against the judge. But she has asserted that she was not trying to shame the woman — though that might have been the effect. The judge had disallowed over a hundred sexually explicit text and WhatsApp messages as irrelevant. She said she admitted only those that proved facts or proved that the prosecutrix was misleading the court or lying.
For instance, the context of the accused’s ‘finger tips’ text message to the woman which she received a few hours after the 7 November incident had to be explained. She had shown that message to her friends and they were “disgusted.” The prosecution could have used that message to suggest that the accused had digital sex with the woman in the lift. The defence explained the “finger tips” pertained to the Irish rock star.
The prosecutrix did not submit herself to medical examination, which may have helped her case. Fear of the police was the reason she gave for not lodging a complaint after the alleged assaults though in Delhi, she had got a departmental inquiry instituted against a police official who had intimidated her. She did not provide the first draft of her recollections of the two incidents which she had emailed to some friends.
The judge noted that the investigation had failed in many respects. The Goa Police officer who had lodged the complaint was also the investigator. Though she and other police officials had seen the camera footage of the lift areas on the ground, first and second floors on three occasions in November 2013, they had failed to retain and preserve the first floor footage, which, according to the defence, would have shown the lift opening there during the 7 November incident and two of them walking out and back. The room where the footage was being recorded was not sealed. The judge suspected this was done deliberately by the investigating officer as the footage would have helped the defence.
Another glaring omission of the investigation was not to acquaint itself with the provision for stopping the lifts. The woman had said the lift was in motion on 7 November when she was allegedly assaulted but the doors would not open on any of the floors because the accused had pressed the buttons. The hotel security staff said it would take at most 20 seconds for the lifts to travel from the ground floor to the second and vice versa. The lift would open five times if operated between the ground and second floors in a matter of two minutes.
The emergency switch when pressed would only bring the lift to the nearest floor and open it. It would also alert the control room and the passengers would be able to speak through the intercom. An investigation should have been done soon after the Goa Police had taken cognizance on their own and lodged a first information report (FIR). That would have shown whether the lift could be kept in motion continuously without the doors opening on any of the floors. By the time of the trial in 2020, the hotel had altered the lift functions for improved safety of passengers.
The investigation did not provide the camera footage to the defence and it had to move the Supreme Court to secure it. But police officials allowed the woman to watch it on 28 November, 2013 which would have helped her in her testimony.
The impression that the judge got was that the testimony of the woman was not of sterling quality. “[A]nomalies, discrepancies, wild inaccuracies, improvements, omissions, contradictions and sheer impossibilities,” had marked her narrative “at every stage.” She said the investigating officer and the prosecution had “turned a blind eye to them.”
On 18 November, the victim had written to Tehelka Managing Editor Shoma Chaudhury about the incidents at Goa.The accused had sent an apology and an email which the accuser found inadequate. The judge held that the accused had not admitted to sexual assault. But the wordings did suggest some acts of indiscretion. His denial of the allegations in court goes contrary to the spirit of the apology and the email. The judge said that the apology was not written by the accused and was forced on him by Shoma Chaudhury and his sister Neena.
When the woman informed the accused that she had told his daughter (and her friend) about the 7 November incident, he was anxious to know she had told her “it was nothing but drunken banter.” He speaks of a “momentary lapse of judgment” and how it has been “totally devastating for me in every possible way.” He admits that he may have “read it all wrong,” and “my punishment has already been upon me and will probably last till my last day.” It is possible that he was trying to mollify her with his statements of contrition. But these words might haunt the accused when an appeal is heard.
The judge was quite brave in ruling in favour of the accused despite expectations from Goa’s ruling party and the community of women’s rights activists to the contrary. But she has needlessly made herself the target of barbs by allowing the woman’s identity to be revealed in several indirect ways like her email ID and the title of the Word document. Also, the names of her mother, partner and father’s pet name should have been redacted. The High Court in Goa has directed that references to the identity should be removed from the judgement.
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While admitting the appeal, the court said that the judgement read like a ‘manual for rape victims’, but in the final analysis, the higher court would have to weigh the evidence in the case and come to a reasoned verdict whether Judge Joshi overstepped her legal bounds or has delivered a evidence-based judgement in a difficult case.
Fernandes is a Delhi-based freelance journalist. Sanotra is a freelance journalist based in the NCR and is the former Managing Editor of IANS. The views expressed above are the writers’ own.