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This article is written by Ayushi Kumari, Gujarat National Law University, Gandhinagar.

Introduction

It was the year 2013 when our country was already grappling with the Nirbhaya rape incident, another peculiar rape incident news burst out. On November 7, during an official event organized by the Tehelka magazine, its editor-in-chief Tarun Tejpal took his junior colleague to a lift with the pretext of attending a guest and wherein later on sexually assaulted her. This didn’t stop here; she was again made the victim by him on 8 November as well. The incident followed a lawsuit being filed by the victim in the District and Sessions Court of Mapusa, Goa. 

When any sort of harm is caused to the life and dignity of a person or his rights are infringed in any manner, he looks with a profound hope within his heart that the court of law is there to serve justice. But, as mentioned above this was a peculiar case wherein the judge also took the peculiar approach while deciding the case. The special Judge who decided the case in the fast-track court was herself a female, but analyzing her reasoning for the final judgment she delivered, it seems she was a little precluded towards the accused. 

The judge firstly held the Investigation Officer to be at fault for delaying the seizure of first floor CCTV footage which could have been a piece of very strong evidence against prosecutrix (yes Prosecutrix! the victim) besides holding her responsible for various aspects of this case wherein she committed acts not expected from her and omitted acts which the law required her to perform. Then came the most horrendous reasoning wherein the court took cognizance of the victim’s facial expression where she looked ‘cheerful’ and did not show any terrified or traumatized behavior besides relying on the victim’s WhatsApp messages which did not corroborate the victim’s statements that the incident traumatized her and therefore she stayed in Goa, terming it as a lie and that she always had her plans to stay back in Goa even after the event was over, thereby creating a room of doubt on victim’s stand and hence, an opportunity, perhaps to absolve the accused. 

That all reasonings put forth by the judge before acquitting Tarun Tejpal, the accused, is put on one side and the lack of terrified ‘behavior’ of the victim after the heinous act reasoning should be given a whole another place. 

What is the appropriate behavior a rape victim is expected to show?

A girl is raped consecutively two days back-to-back by her senior colleague, to be more precise the editor-in-chief of a magazine in a lift, and when she complaints about it in the court of law, she is counter questioned by the judge regarding her normal behavior after the incident and this is also made one of the reasons for acquitting the accused. The question which we might ask ourselves here is that, is there any distinct behavior that a rape victim is expected to show? Perhaps there is, but no one amongst us is aware of (or at least I am not). 

A girl’s dignity means everything to her. I being a girl can vouch on this. She can stand strong, bold, and no matter even if she is a virago woman, she will be afraid, even just for a while, when somebody tries to get closer to her, intentionally touches her, or makes sexually explicit remarks on her. Even after all this if she chooses to fake a smile and to act normal, is it that an unaccepted behavior that a court of law will question her rape claim and will set the accused free merely on the ground that the victim’s behavior was ‘normal’. 

The victim in the present case approached one of her closest friend and colleague right after the incident claiming that she was afraid of the accused and that she felt secure with him (the friend) albeit remaining silent about the rape incident that happened with her few moments back. Perhaps, there is a possibility that she might have wanted to discuss the incident with her friend but it shook her to an extent that she couldn’t gather the strength about the same. In the least we can imagine that she stood firmly strong there with her friend, chilling out. Normally, and in most cases, people do get afraid to tell and narrate to others about the horrible incident that happens with them, even to their parents. Here, the girl was the rape victim and, in the least, we can imagine what she must have been going through physically, emotionally, and psychologically at that moment. It rather should be considered how brave and strong she was that she still managed to have a conversation with her friend before stepping back into her room. 

However, the court had some other approach while delivering justice and the judge took cognizance of the fact that why she didn’t cry in front of her friend as he was the first person she approached right after the incident. Perhaps, the court’s thinking is based on an assumption that rape survivors are not supposed to talk to anyone immediately after the incident or maybe they are supposed to cry and weep while narrating their story to the other person. Whatever the court assumed, we cannot question it directly instead we can merely watch, listen or write perhaps what we think about the judgment that there is certainly no ‘appropriate’ or a distinct behavior a rape survivor is expected to show.

Does the judgement stand for people’s expectations?

We can only imagine what precedence this court tried setting for future rape cases, more particularly for the accused who can set themselves free when the judge puts a victim on trial. The Indian Constitution provides for equality of every individual in the court of law under Article 14, then why certain remarks by the court make us give it a second thought that the right under article 14 is somewhat breached in this case. Albeit a person should be given every opportunity to prove his innocence before being called guilty by the court but does that mean start putting the victim on trial who went through rape. To question her behavior after the incident and her past sexual history during the trial and proceeding with it to exonerate the accused.

Not only this, the court took cognizance of the WhatsApp chats exchanged between the victim and her mother. That assuming even though the victim was terrified after the incident then why she, while having the conversation with her mother, didn’t make an effort to let her aware of the incident or instead even after telling her, the mother chooses not to give her victim daughter any emotional support she needed at that time and so neither of them changed their plans to meet each other. Hence, the court’s concluding that, again, the victim’s behavior is uncertain and that she never intended to make any changes in her plan of staying in Goa. Again, a reason for exonerating the accused. 

Whatever the court’s reasoning was and had in its mind while setting free the accused, does seem questionable but if we look at the case from another view, certain aspects also need to be addressed. 

Any clandestine truth left behind?

While the court’s remarks against the victim sparked a myriad of questions from people, there are few facts from her statements and behavior that casts doubt as to her accusation. 

It was mentioned by the court that on November 8, 2013, the prosecutrix sent two SMSes from her mobile to the accused without there being any message left from the accused side’s to the prosecutrix asking as to her whereabouts. It was also noted that the messages were sent in the span of a very few minutes after the incidence.

In the least we can imagine, any rape victim would dare reply to a text her rapist sends, let alone texting him first without the accused asking for the same. This casts a shadow of doubt as to the victim’s accusations and instead gives the benefit of doubt to the accused. That, though we can question the court’s reasoning on few aspects here, however, the court does seem correct. How any woman who goes through such a horrendous act, would text such a person and later on file suit against him. Clearly making it seem that she was not traumatized after the incident. Or perhaps, she might have got afraid of losing her job in any way or something might have caused her a sense of fear which compelled her to text him. Whatever the reason would have been, we can only analyze as to the best of our capability. As there are always two sides of the same coin, and it depends on us what we choose to see and accept.

Bombay High court’s judgement

The acquittal of the accused in this present case resulted in an appeal challenging the same by the goa state government before the Goa bench of Bombay High Court. The single-judge bench headed by Justice S.C. Gupte on hearing the matter termed the sessions court’s judgement that it appeared like a “manual for rape victims”. That the court focused more on indicting the complainant rather than trying to ascertain the culpable role of the accused, is what the High Court observed in the judgment. The court also observed that the evidence produced by the defense witnesses was treated as a gospel truth whereas the evidence given by the victim and the prosecution witnesses were discredited without any findings by the sessions court. Even the “formal apology e-mail” which could have been the strongest evidence against the accused and that it established the guilt of the accused beyond a shadow of a doubt is what the appeal made by the government stated, was regarded as not admissible by the sessions court on the grounds that it was ‘coerced’. The court stated that: 

“… bare reading of the alleged personal apology categorically shows that his emails neither implicitly nor explicitly makes any admissions or confessions which [the complainiant] demanded in the apology, or with relation to any other offence with which the accused was charged, and is clearly therefore not an apology but an attempt to assuage any discomfort the [complainant] might have post facto felt…”

The sessions court acquitted the accused on May 21, 2021, following which the appeal was filed. Justice Gupte admitted the case stating that there is a prima facie case made out against the accused in the present case and gave June 24, 2021 for further hearing. 

The June 24 Judgement

Seeking justice against crime as heinous as rape takes time. The counsel appearing for the respondent (accused) on June 24 stated that he had not been supplied with an updated copy of the appeal. It made the Bombay High Court adjourning the matter for another one month and reserved 29 July 2021 as the next hearing date.

Conclusion

Justice for a rape victim seems like an unending war. She has to fight every day facing the same person who made her an object to satisfy his sexual desire and lust. All she has to keep with herself is patience and a strong mind. We certainly cannot even imagine what all a rape victim goes through, physically, mentally, or emotionally during this waiting time which keeps on getting another date.

The present case has also been adjourned for another one month. Another unending time for the victim. And another extra time for the accused to look for another excuse, perhaps, to ask for another date.

The present case met with a myriad of criticism on sessions court’s judgement asking for the appropriate behavior by a rape victim that she did not show after the incident. What this appropriate behavior meant, perhaps most of us are ignorant about it and it certainly can not be a ground for any rape accused to get acquitted. 

Whatever it is, for the time being, we can only wait for another one month to pass on and see what judgement awaits the victim in the future. 

References


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