High Court of Bombay expected to hear amended appeal on Wednesday

Keeping the point of retrial open in the case where Tarun Tejpal was acquitted of sexual assault charges, the Goa government has in its amended appeal filed in the High Court of Bombay at Goa stated that the trial court had disbelieved the woman on the basis of a conception of how a victim is expected to behave while being sexually assaulted. This finding of the court, the state government said, was unsustainable in law and is coloured by prejudice and patriarchy.
On May 27, the High Court had allowed the Goa government, represented by Solicitor General of India Tushar Mehta, Advocate General of Goa Devidas Pangam and Additional Additional Public Prosecutor Pravin Faldessai, to amend its appeal after the 527-page judgment of the Sessions Court was made available. Requesting the court to hear the Goa governments appeal at the earliest, Mehta told the vacation bench of the High Court on May 27, We owe it to our girls that the court hears it at the earliest.
The High Court is expected to hear the case on Wednesday, June 2.
While the Goa government has urged the High Court to set aside the trial court’s verdict acquitting Tejpal, the 58-year-old Tejpal is former editor-in-chief of Tehelka, according to the state government’s legal team, the point of retrial which it has mentioned in its amended grounds for appeal will be kept open.
In its amended grounds for appeal that run into 66 pages, the Goa government has stated that the judgment delivered by Additional Sessions Judge Kshama Joshihas 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 (Tejpal).
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 state government contended.
The trial court had also observed that the victim had made improvements to her version of the incident and there were contradictions and inconsistencies in her account of the incident that took place in a hotel elevator in Goa on November 7, 2013, and November 8, 2013. The Trial Court ought to have taken into account that the case related to November 2013 and the witness was called to the stand for the first time on 15.03.2018. Her cross-examination commenced on 21.10.2019 and concluded on 04.01.2021. Given the passage of time, it is only natural and human that some peripheral details were not recollected by the witness, the appeal said.
The government stated that the demeaning and humiliating manner in which the trial courts 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.
Contesting Tejpals acquittal, the Goa government has also stated that the trial court was pedantic, illogical and harsh in considering the statement of the woman.
Because the trial court allowed scandalous, irrelevant and humiliating questions put to PW1 (Prosecution witness no.1, the woman), to overwhelm the record of the case without any check or scrutiny, betraying a complete lack of understanding of the statutory provisions and the law laid down in this regard by the Honble Supreme Court. This fact itself, accompanied by other attendant circumstances, clearly makes out a case for retrial in accordance with law, the appeal states.
In her judgment, Additional Sessions Judge Joshi had made several observations of the victim appearing happy and cheerful after the incident which the court felt was unnatural.
The appeal filed by the state government said, Not only do the above observations 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 Honble Supreme Court of India in such matters. The state government argued that if the law laid down by the trial court is correct, looking traumatised after such incident is sine qua non and an educated girl who chooses not to create a scene is not a reliable witness.
The appeal also stated that the trial court had ignored a telling piece of evidence that were the statements of three colleagues of the woman, who she had told about the alleged sexual assault soon after it took place. While the court had disregarded their statements, it had accepted the statements of four defence witnesses as gospel truth despite their closeness to Tejpal. This clearly demonstrates the dual standard of appreciating evidence adopted by the Trial Court, the appeal said.
In a preposterous reading of the evidence, the state government said, the trial judge held that the apology email sent by Tejpal to the victim on November 18, 2013, was inadmissible. Section 24 of the Indian Evidence Act renders a confession irrelevant in a criminal proceeding if it is caused by inducement, threat or promise.
The trial court has not given any cogent finding as to how a person of the education, age and maturity of the Respondent Accused (Tejpal), in a position of power over the prosecutrix (PW1), could in any manner be pressured into making an apology or admission, the governments appeal stated.
The trial court also held that the prosecution in the case could not prove that the lift in which the alleged incident of sexual assault took place could have been kept in motion without its doors opening on each floor. The appeal, however, cites the evidence of a technical witness who deposed that for as long as the red button is in the stop mode, the elevator will not be in motion
The Goa government 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.
The Trial Court has, however, conveniently and prejudicially ignored the fact that the original DVRs are deposited before the Honble Court (HC) and have also been forensically examined by CFSL, Hyderabad, first at the request of the police and then subsequently pursuant to the order of the Apex Court.