Panaji, Aug 6 Convicting journalist Tarun Tejpal in a 2013 rape case, the Bombay High Court on Thursday termed the trial court's verdict of acquittal as "perverse", and slammed it for falling prey to the notion that a complainant in such cases should be a "perfect victim" and behave in a certain way.
In its 81-page judgement, the bench of Justices Neela Gokhale and Amit Jamsandekar expressed strong disapproval about the way the defence put the victim in the dock and focused on her personal life, and said it found it surprising that the trial court "allowed the defence to harass and humiliate her during the cross examination."
The High Court, which sentenced Tejpal to ten years' rigorous imprisonment on the charges of rape and sexual harassment, stated that she had made truthful statements and the prosecution had established its case "beyond every reasonable doubt".
The trial court at Mapusa, which acquitted the former Tehelka editor-in-chief in the case in 2021, proceeded with the notion that a sexual assault victim must behave in a stereotypical manner, and the victim in the present case had to be a "perfect victim", the HC said.
"The 'perfect victim' concept, more formally known as an 'ideal victim', described an unspoken cultural archetype where a person is fully believed, sympathised with and granted legitimacy only if they exhibit absolute vulnerability, complete innocence and total passivity," the High Court said.
When a survivor does not fit into this mould, then their trauma is normally devalued, it added.
"Expecting a survivor to be constantly miserable, meek or visibly broken, the Trial Court has ignored the reality of human coping mechanisms. However, these concepts of a perfect victim are a myth. Credibility must be evaluated on facts, not on whether a survivor fits a narrow cultural mould," the bench said.
Neither the trial court nor the accused could decide how she should have reacted or processed her trauma following the crime, the judges said.
"Many persons deal with trauma in different ways," the HC said, adding that the victim's credibility cannot be doubted merely because she did not leave the event venue after the sexual assault.
Tejpal was then the Editor-in-Chief and owner of Tehelka while the victim was a principal correspondent with the magazine, and hence undoubtedly "Tejpal was in a position of control and dominance over her", the HC observed.
The bench also noted that Tejpal assaulted the victim not once but twice on consecutive days. "He even tried to shame the victim for informing his daughter (about the assault)," the HC said.
While chastising the defence for its attempt to raise questions about the victim's character, the judges said she stood firm in her testimony, and they had no hesitation in believing her testimony, which was "reliable and consistent".
"It must be realised that a woman subjected to sexual violence is often slow and hesitant to disclose her plight. In the present case, the victim has stood firm in her testimony despite invasive cross-examination," the HC said, adding that her narration was corroborated by several other witnesses.
The bench also admonished the defence for highlighting her way of life so as to declare her a "promiscuous woman and a libertine".
"She is equally entitled to protection of law. Her evidence cannot be thrown overboard merely because she is alleged to be a woman of easy virtue," the HC said.
No inference can be drawn that a woman alleged to be of loose moral character can be raped by a person for that reason, the court said, adding "Every woman has a right to refuse to submit herself to sexual intercourse with anyone."
The bench also took into consideration the apology email sent by Tejpal to the victim after the incident, and said the emails clearly admitted that he acknowledged the sexual assault "albeit calling it a sexual liaison".
"No person of reasonable prudence would apologise falsely for such an incident, especially someone like him (Tejpal)," the court said.
The high court also expressed its displeasure with the manner in which the trial court conducted the case and said "a judge does not preside over a criminal trial merely to see that no innocent man is punished."
"A judge also presides to see that a guilty man does not escape. Both are public duties," it said.
A detailed review of the victim's examination in court shows that the defence repeatedly focused on her personally, as if "she were on trial rather than the respondent (Tejpal)", HC said.
"What struck us most was the trial court's noticeable silence during the victim's cross examination. We find it surprising that the court allowed the defence to harass and humiliate her," HC said.
It added that the trial court overlooked the fact that the victim, having already faced the trauma of a sexual assault, might feel ashamed, nervous or confused during the cross-examination.
The bench noted that the defence attempted to not just discredit the victim's case of sexual assault but also intended to portray her as an unchaste woman with a view to create a "chilling effect and demoralize" her.
