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PANAJI: The Bombay high court in Goa on Saturday allowed the state government’s application for leave to appeal against the acquittal of former Tehelka editor Tarun Tejpal in the 2013 rape case against him saying that the order “requires deeper scrutiny and reappreciation”.
Tejpal was accused of raping a junior colleague in an elevator of a five-star hotel in Goa during the THiNK festival in November 2013. He was acquitted by the fast-track court on May 21 last year on account of lack of sufficient evidence.
An application for leave to appeal was filed before the high court as is a statutory requirement under the Code of Criminal procedure which mandates that “no appeal… shall be entertained except with the leave of the high court.”
“We believe that deeper scrutiny and reappreciation may be necessary of the evidence of the respondent’s (Tejpal’s) SMS, WhatsApp, and Email messages sent to the victim… this evidence has to be evaluated from the context of corroboration of the victim’s testimony in the matter,” the high court division bench of justices M S Sonak and R N Laddha ruled.
“Based on this evidence, perhaps, some of the learned additional sessions judge inferences about the victim’s conduct may also need a revisit. The inference from the victim’s conduct of consulting some lawyers before lodging her complaint may also require a revisit. Finally, the contention about the alleged admissions in the messages or the proper scope of such statements also requires consideration… At this stage, we might have only preferred to record that a prima facie case has been made out and arguable issues arise in the matter,” the high court further said.
“At this stage, if the material on record discloses the necessity of deeper scrutiny and reappreciation, review, or reconsideration of evidence, the appellate court must grant leave as sought for and decide the appeal on merits,” the high court said.
Tejpal via his advocate Amit Desai opposed the application claiming that procedure wasn’t followed especially pointing to the fact that the appeal was filed even before a certified copy of the order was made available to the prosecution, which he said was proof of non-application of mind in filing the appeal. In this case, the impugned judgement and order was indeed pronounced on 21.05.2021, and even before its copy could be obtained, the decision to appeal was taken on 24.05.2021, he said.
The high court, however, rejected the contention.
“Based on the material on record, we do not think any case is made out to infer non-application of mind rendering such a decision a nullity. Though valid in some circumstances, the contention about haste and the inference of non-application of mind cannot be mechanically drawn in all events and purposes,” the high court said.
“A range of considerations is available to the state government to decide whether or not to institute an appeal against an order of acquittal. A state government may legitimately entertain the perception that such an acquittal must be tested before the high court. Second, it may legitimately entertain a perception that there was clear and compelling evidence on record, based upon which no acquittal was possible. Third, the state government may legitimately entertain a perception that the sessions court may not have appropriately appreciated the law, particularly on the onus of proof or the credence to a victim’s testimony. Finally, the state could have legitimately entertained a perception that such a decision was necessary to protect the victim’s identity,” the high court said.
“…it is also possible that such a decision can, in a given case, be actuated by some extraneous or even malafide considerations. None were at least suggested in the course of arguments. But then, all this can certainly be examined when the court considers the application for leave judicially,” the court noted.
The complainant alleged that Tejpal had raped her in a lift in the hotel on November 7, 2013 and attempted to assault her again on November 8.
The fast-track court judge in her judgement gave Tejpal, who is facing charges of sections 376 (rape), 354A (sexual harassment), 354B (criminal assault with intent to disrobe a woman), 341 (wrongful restraint) and 342 (wrongful confinement) of the Indian Penal Code, the benefit of doubt while acquitting him.
Earlier the Bombay high court in Goa rejected Tejpal’s plea for an in-camera hearing of the appeal put forth by him.
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