The judgment in Tejpal demonstrates the double-edged nature of this process of establishing the quality of a witness. Opening a victim to "cross-examination of any length and howsoever strenuous it may be" in a situation where it isn't enough to merely doubt the witness' narrative but also damage her credibility is an invitation to place the victim on trial rather than the facts. This appears to have been a tactic for the defence in Tejpal and the court obliged.
Explained: Why Tarun Tejpal was Acquitted in Goa Rape Case?
Panchkula (ABC Live India): In the last week of
May, Judge Kshama M. Joshi, additional sessions
judge, Mapusa, Goa acquitted Tarun Tejal, former editor-in-chief of Tehelka
Magazine of rape of a junior woman employee on the ground that the prosecution
was not able to prove its case beyond a reasonable doubt. Tejpal had been charged
under Sections 376 (2) (f), 376(2)(k), 354, 354A, 354B, 341 and 342 of the
Indian Penal Code.
It is mention-worthy that the rape trial took eight years and for that
rape victim lost her job and had to travel to attend court even during the
pandemic from his home town far from Goa.
As a student of law and intern at the Association of Judicial Reforms India (AJRI), working for transparency and efficiency of the Indian Justice Delivery system I was keeping a close watch on this high profile case
for last three years and shock to know the final outcome of the case, keeping in the view that the rape victim stood firm on his allegations and contested her case
against all odds.
While doing my research on State v Tarun Tejpal I came
across a high-quality critical analysis of the judgment in this case and in the interest
of justice reproducing the same in the public interest.
In a 2013 opinion piece, Professor Pratiksha Baxi wrote about the injustice that victims of sexual assault have historically suffered at the hands of the criminal process in India, reminding us that even those cases which forced our laws to change were stories of sexual assaults never proven before the eyes of the law.
That opinion the piece was written in the wake of allegations in the case registered as State v. Tarun
Tejpal, where on 21.05.2021, the Court
of the Additional Sessions Judge at Panaji acquitted the accused on all
charges, i.e. for alleged commission of offences under 376(2)(f), 376(2)(k),
354, 354A, 354B, 341, and 342 of the Indian Penal Code 1860.
The judgment has been critiqued on the court's consideration of
the victim's testimony [see, for instance, here, here and here]. It appears
that an appeal has been
filed by the state challenging the acquittal, where the High Court has
initially directed that sections of the judgment ought to be redacted as they
reveal the identity of the victim.
This post does not attempt a microscopic review of the merits of
the case, not only because an appeal is pending, but also because the judgment
does not give a clear conspectus of the entire evidence on record to allow for
such an exercise. Instead, while making some broad observations on the judgment
(to the extent possible based on the evidence extracted) it brings up three
issues that the judgment throws into sharp relief:
(i) Appreciating evidence, with
a focus on witness credibility and the handling of inadmissible evidence at
(ii) Consideration of digital evidence from victims
in sexual assault cases.
(iii) Consequences of
"bad" orders o the system itself.
On the "Sterling Quality" of Sole Testimony
7 years, 2 months, and 25 days: that is how long it took for
this trial to finish from the date when the charge-sheet was filed, which itself
happened four months after the allegations first surfaced. Such delays are
endemic to the system because of its structure [see here for a long
take on this] — litigants can challenge almost every decision taken by the trial court during the process all the way to the Supreme Court, and this
happened here as well.
A very real consequence of delay is reducing the quality of oral
testimony on offer before a court. The importance of oral testimony is a
central feature of the criminal process almost everywhere. It is also one of
its central fallacies because, despite overwhelming science to show the
instability of memory, criminal trial rules still demand that we recall events
to an unreal
This is something the Serial podcast has played with very well
to demonstrate that not only do we forget things often, but we do so very
quickly. In spite of this, trial rules play up contradictions in witnesses'
recollections standard. by comparing their oral testimony in court with what
they said earlier during the investigation.
The more there are contradictions
in versions, the more untruthful the witness supposedly is. Even in a setup
like India, where trials take place years after investigations are done, and
memories have faded to the point of oblivion, this is the yardstick adopted to
judge the credibility of a
witness. Sure, courts agree that some leeway is needed because of this, but the
more contradictions you can point out, the worse the credibility of a
Which brings us to the specific context of rape trials and their
rules of evidence? Unlike other cases, some special rules of evidence govern
these cases in India, such as a rule that the
"sole testimony" of the victim is enough to mandatorily create a
presumption about the non-existence of consent where the alleged physical act
is proven; with it being possible for the accused to rebut that presumption.
Alongside this rule is a set of
general judicially-ordained directions that ask courts to ordinarily trust the
victim's version and not necessarily ask for corroborative evidence. This leads
to a position, in practice, where all facts may be proven and a conviction may
be based on the sole testimony of the victim.
The result of such a situation
that permits convictions based on the testimony of a single witness is to amp
up the existing yardsticks for judging credibility: The court demands a
"sterling witness" and not an ordinary one. Take a look at how
the Supreme Court has, on one occasion,
"In our considered
opinion, the ‘sterling witness’ should be of very high quality and calibre
whose version should, therefore, be unassailable. The Court considering the
version of such witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the status of
the witness would be immaterial and what would be relevant is the truthfulness
of the statement made by such a witness. What would be more relevant
would be the consistency of the statement right from the starting point till
the end, namely, at the time when the witness makes the initial statement and
ultimately before the Court. It should be natural and consistent with the
case of the prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness should be in a
position to withstand the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give room for any doubt as
to the factum of the occurrence, the persons involved, as well as, the sequence
of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the
manner of the offence committed, the scientific evidence and the expert opinion.
..." (Emphasis mine)
It's hard to fault this reaction which asks for more when
it comes to this one witness which can decide a case, but it should be obvious
by now that this reaction is illogical and sets an impossibly high standard for
any witness to meet, let alone a witness who is the victim of sexual assault
and is testifying about it. If anything, the judgment in Tejpal demonstrates
the double-edged nature of this process of establishing the quality of a
witness. Opening a victim to "cross-examination of any length and
howsoever strenuous it may be" in a situation where it isn't enough to
merely doubt the witness' narrative but also damage her credibility is an
invitation to place the victim on trial rather than the facts.
This appears to have been a tactic for the defence in Tejpal and
the court obliged: it took the bait that the victim ought to
behave in a certain way by setting up false ideals of credibility.
So, the court found it incredible that the victim could have
been assaulted because she was found smiling in the presence of the
accused after a few days of the alleged incident. That the victim
spoke to persons and legal professionals before moving a complaint, that she
was educated, a journalist, and knew more than ordinary persons about cases of
sexual assault owing to her professional expertise — all of this appears to
have driven the court to expect an impossible level of consistency in
narrative, and rendered every contradiction or omission in testimony fatal to
her credibility. When the victim testified to having placed her professional
responsibilities before other concerns, even her own well-being, it rendered
her testimony unbelievable to the court [more on proving consent here]. The extent to
which the court engaged in such an exercise is such that, in some places
("the prosecutrix typically gave highly evasive
answers"), the judgment appears to be a contest for
proving that the victim is an unbelievable liar rather than determining the
innocence or guilt of an accused person.
"Un-Ringing the Bell" and Character Evidence
Returning to the idea of special rules of evidence for rape
trials, one such rule renders evidence of past sexual history irrelevant on the issue of proving
consent and quality of consent. Another rule also renders it impermissible to pose questions to the
witness on such lines during cross-examination. The consequence of terming
something irrelevant as to render it inadmissible in evidence — such
information cannot be the basis for arriving at any conclusions [more on
conflating relevance and admissibility here].
Both of these rules can be seen as the legal system's technique
of curbing tendencies to badger a witness and, in turn, help the trial stay
rooted to the facts and not extraneous circumstances. Tejpal offers
a stark reminder of the truth that these rules are only as good as the context
they operate in — the victim went to the High Court to get
an order for curbing irrelevant questioning, presumably because the trial court
was not doing enough to screen irrelevant questions or the defence counsel was
clever enough to frame the line of questioning in a way that made the
character-questions not so obvious.
Possibly poor implementation of trial rules
which are meant to screen bad questions is a problem. But it should not distract
us from a much bigger problem afflicting criminal trials which renders the
special rules of evidence for rape cases anodyne. This is the manner in which
evidence recording ordinarily takes place. Normally, irrelevant questions are
curbed by way of raising objections when evidence is being recorded, and a
court decides that objection before letting the testimony go on. However, in a
bid to curb delays, criminal trials in India normally do not address objections this way. While
objections are noted during the recording of evidence they are decided only
at the stage of the argument. Using Tejpal as an
example, the end result looks something like this: a judge still looks at all of the irrelevant evidence,
and then, in the end, says that it has to be "glossed over".
Think about what this means for a second: not only does a
witness still have to answer the
irrelevant questions but the answers, possibly inadmissible in evidence, get
recorded as well and form part of the record. Judges are expected to "un-ring the bell"
if they uphold the objection at the stage of arguments and not let the
inadmissible evidence influence their decision. This is great on paper but,
frankly, impossible to either implement practically or to account for
subsequently. Decision-making is a complex phenomenon and while judges might
not ascribe formal reasons in the judgment to inadmissible evidence that
material can undoubtedly still influence their thinking at a sub-conscious
level. Are the special rules offering little more than a placebo, then, to deal
with the problems at hand?
The Victim as a Source of Evidence
A significant feature of the defence strategy in Tejpal arose
out of scouring the victim's life for facts that could be used in evidence.
This came as a result of the police having seized her mobile phone and also
having sought access to her email etc. for purposes of the investigation.
As per the rules of disclosure in a criminal trial
in India, an accused is required to be provided copies of all materials that
are proposed to be relied upon by the prosecution to establish its case at
Courts have interpreted these rules
broadly of late, and have required sharing even material which the prosecution
might not plan to rely upon but had seized during the course of the investigation, especially where this might prove beneficial to an accused. Inline
with this interpretation, the accused was provided clone copies of the mobile
phone of the victim.
Exploring digital devices in the hope to find the material useful as
evidence is not extraordinary in any sense for criminal investigations. But, as
we know by now in this post, proving sexual assault cases at trial is different
from going about this job in other cases.
Here, it is unfortunately quite common for the
victim to be on trial herself instead of only the facts. Broad rules of
disclosure can create unique harms for victims in such cases and I need not
elaborate upon the many kinds of dangerous consequences which can arise.
In fact, the Supreme Court
recognised this to some extent in 2019, ruling that a "copy" ought not
to be given to the accused and only an inspection be allowed of some sensitive
material as it agreed that giving copies could lead to an accused person
duplicating the material to, amongst other things, defame the victim.
The Supreme Court did not
direct that an accused ought not to be given material because this would be
unfair, creating a situation where accused persons must only look at what
the prosecution thinks is relevant for a case. Allowing for
such a rule in one set of cases is likely to seep across contexts and should be
avoided no matter what.
What might be a way out? Better regulation of how investigations
handle digital evidence is a good place to start. These are difficult questions
as on one hand, the police ought to have room to investigate all lines of
inquiry but on the other hand a victim ought not to be humiliated via a
"digital strip search" of her entire life on the pretext of
establishing whether a specific set of allegations are credible or not [see here and here about how
the UK was struggling with this problem]. By reducing the amount of access that
can be demanded by law enforcement, unwanted intrusion into
the private lives of victims can be minimised (a factor often cited as being a
hindrance to reporting of sexual offences), while also automatically limiting
the access is given to an accused at trial. Victims ought to be informed at the
outset about how their information can become part of the case and eventually
land up in the hands of accused persons as well, giving them an option of not
doing so without exposing them to censure while making them aware of how this
might also hurt the investigation by closing down lines of inquiry. If
anything, such an approach will help make informed decisions about how victims
participate in the process, allowing them to retain agency. It might also help
police in remaining focused on securing the available independent evidence — a feature which appears notably absent in Tejpal and contributed
to castigating remarks from
Of course, it is impossible to change or hope for change in
investigative practices without thinking about the trial as a whole.
Investigations are all about collecting material that may be used as evidence
— if what the trial wants as evidence focuses upon creating unrealistic
"sterling witnesses" then that is what an investigation will also
look for, going beyond the allegations and down the rabbit hole of credibility
Being Wary of the Ripple Effect of "Bad" Orders
Public opinion has decried the judgment in Tejpal as
a travesty. Beyond the debate about whether the court reached the right result,
the criticism has been about how the court went about its
task. Naturally, there has also been talk about doing something to prevent such
episodes from repeating again.
It is earmarked to go down in
history as a "bad" order. Bad orders have, historically, carried
serious repercussions for the criminal process in India, especially in the
realm of sexual assault laws. As Professor Baxi's 2013 piece outlined, most of
the notable changes to the legal system were a result of particular instances
of injustice being done to women. In that way, Tejpal offers a
chance to build consensus around problems afflicting the investigation and
prosecution of sexual assault cases in India. That is the only silver lining
around this dark cloud.
At the same time, one must be wary about the ripple effects of
bad orders. The more recent examples of a consensus did see a response from the
legislature, but hardly the kind of response which anybody except vote-seeking
In 2013, parliament rushed amendments to the
criminal law by picking and choosing parts of a Committee Report, and
the outcome was insensible and illogical. In 2018, the outcome to
public outrage was simply increasing the severity of crimes and adding the
death penalty for some crimes, which many argued was counterproductive to
the issue itself. The underlying commonality in these responses is their cost-effectiveness —
legislators create new crimes or evidentiary rules but they hesitate in taking
steps that cost money, such as improving state capacity to investigate and
prosecute a case.
This post suggests that there are some serious problems as well
as red herrings out there when it comes to thinking about how the system deals
with sexual assault cases. To make things better it is imperative that the
conversation going ahead is rooted in an approach that considers the problems
holistically — looking at the entire life of a sexual assault case and its consequences
on stakeholders while recognising the unique harms to victims — instead of
adopting band-aid measures which only worsen the malaise.
Source: This post is written by Abhinav
Sekhri in his blog The
Proof of Guilt and republished in the interest of justice and public