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Victim's behaviour not 'normative', did not reveal trauma, court says while acquitting Tejpal in rape case

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Panaji, May 26: A sessions court in Goa while acquitting journalist Tarun Tejpal in a 2013 rape case questioned the complainant woman's conduct, holding that she did not exhibit any kind of "normative behaviour" such as trauma and shock which a victim of sexual assault might show.

Victims behaviour not normative, did not reveal trauma, court says while acquitting Tejpal in rape case

In her 527-page judgment delivered on May 21, which was made available late Tuesday night, sessions court judge Kshama Joshi said the victim's actions such as "proactively" sending messages to the accused about her location in the aftermath of the alleged sexual assault did not support her "narrative of extreme implausibility".

The court also relied on the CCTV footage of the woman after the alleged incident to question the prosecution''s case.

Tejpal, former editor-in-chief of the Tehelka magazine, was on May 21, 2021 acquitted of all charges. He was accused of sexually assaulting his then colleague in a lift of a five-star hotel in Goa in 2013 when they were attending an event.

"It is extremely revealing that the prosecutrix's (complainant) account neither demonstrates any kind of normative behaviour on her own part that a victim of sexual assault might plausibly show," the judgment said.

CCTV footage and photographs clearly proved that the woman was "absolutely in a good mood, happy, normal and smiling and did not look distressed or traumatized" even though these footage or photographs captured her after the alleged sexual assault had taken place, the court said.

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The CCTV footage submitted by the prosecution showing the woman walking out of the lift after the alleged incident did not support her claim that she was in "shock or trauma and blinking in tears", it said.

"It cannot be lost sight (of) that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause an equal distress, humiliation and damage to the accused as well," the court said.

It was also "unnatural" on the part of the victim to send a message to the accused subsequently about her location in the hotel, the court said.

If she had been recently sexually assaulted by him and terrified of him and was not in a proper state of mind, then why should she report to the accused and disclose to him her location, the court asked.

The victim sending messages to the accused "proactively" without any attempt by him to ask her where she was clearly established that she was not traumatised or terrified of being found by him, the court said.

Further, there was no medical evidence to prove sexual assault as the FIR was filed after a delay and the woman refused to undergo medical examination, the judge noted.

If, as per the victim's claim, she had struggled with the accused (during the alleged sexual assault), she would have suffered some injuries, but she admitted she did not receive any physical injury, the court said.

On the victim's deposition of the alleged incident, the court said, "This is a narrative of extreme implausibility and it is not possible to believe that the prosecutrix, a woman who is aware of laws, (who is) intelligent, alert and physically fit, would not push or ward off the accused if she got pushed up against the wall."

The victim, as a journalist, reported on issues related to sexual crimes against women and gender issues and was hence aware of the latest laws on rape and sexual harassment, the court said. Further, she made completely inconsistent statements which created doubts about the truthfulness of her claims, the judge noted.

"The scrutiny of the prosecutrix''s evidence reveals several discrepancies/changes in her versions" but the police and prosecution turned a blind eye to them, the court observed.

The woman's memory of the events was "highly convenient which fails to function at crucial times, whenever evidence to the contrary is produced" and ''there are material contradictions and omissions and inconsistent statements in the deposition of the victim which make her testimony not of sterling quality to base the conviction only on her testimony," the court said.

Referring to an apology email sent by Tejpal to the woman on November 19, 2013, the court said it might not have been sent voluntarily.

He might have written it due to "explicit pressure and intimidation by the victim" on the Managing Editor of Tehelka to act swiftly and also the inducement and promise by the victim that the matter would be closed at the institutional level if Tejpal were to tender an apology, said the court.

It could not accept this email as admissible evidence against Tejpal, the court held. The judge also noted that before lodging the FIR, the woman reached out to prominent lawyers, a member of the National Commission for Women and also a few journalists. "With the help of experts, there may be a possibility of doctoring of events or adding of incidents.

Advocate for the accused has thus rightly submitted that the deposition of the prosecutrix has to be scrutinized in that angle," the order said. The court also took note of a claim made by a defense witness that the victim had told him during the event (when the alleged incident took place) that she had been flirting with Tejpal.

The victim in her deposition also stated that she did not believe that there was anything "immoral about consensual sex, consuming alcohol or smoking," the court noted.

The court also took note of the content of hundreds of messages sent by the victim from her mobile phone, submitted as part of the prosecution evidence.

"The (victim''s) messaging record shows that it was entirely the norm for the prosecutrix to have such flirtatious and sexual conversations with friends and acquaintances," the court said, noting that Tejpal and the victim had had a flirtatious conversation on the night of the alleged incident.

While rejecting all charges against Tejpal, the court only accepted the argument that he was in a position of trust or authority towards the victim, and was in a position of control or dominance over her.

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