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HindustanTimes Mon,21 Apr 2014

Prima facie evidence to show rape: Court on Tejpal

PTI  Panaji, December 01, 2013
First Published: 02:08 IST(1/12/2013) | Last Updated: 02:09 IST(1/12/2013)

Rejecting Tarun Tejpal's anticipatory bail plea, a local court held today that the material on record prima facie indicate that he is involved in committing acts which constitute offences of custodial rape and outraging the modesty of the woman.

"The statement of the victim and the documents in the form of emails etc., details of which need not be reproduced here, prima facie indicate that the applicant, who was her mentor and father figure, had not only outraged her modesty but had misused his position, betrayed her trust and violated her body," District and Sessions Anuja Prabhudesai observed in her 25-page order.

Referring to various judgements of the Supreme Court, Prabhudesai said the question for her determination was whether Tejpal is entitled to bail. "The answer to which in my considered view is nothing but in the negative", she said.

The material on record prima facie indicated that on November 18, a week after the ThinkFest event in a hotel in Goa, the victim had sent an email complaint to the Managing Editor of Tehelka complaining of sexual assault by Tejpal on November 7 and 8 in the hotel lift.

The judge said though there was delay in reporting the matter to the Managing Director, it was not material at this stage.

It has to be borne in mind that delay in lodging the report is not necessarily fatal and can always be explained.
The yardstick of unexplained delay in filing an FIR, which usually goes in favour of the accused, cannot be applied in cases involving sexual offences.

 "The victims of such crime undego physical as well as mental trauma and humiliation. Their reputation, dignity, honour, future prospects and financial security are at stake and often the victims and their family members are subjected to social ridicule.

"These circumstances often lead to delay in reporting the incident.....Consequently, in my considered view, the veracity of the complainant or the statement of the victim cannot be doubted on the ground of delay", the judge said.

 The court observed that the statements of the colleague of the victim prima facie indicate that she had informed them about the incident on the same day.

Though such corroboration is not strictly necessary, the statement of her colleague prima facie corroborates her version, which at this stage need not be sieved, sifted, weighed and appreciated.

The judge said the email correspondence on record prima facie indicate that Tejpal had not disputed the incident. Its initial correspondence further indicated that he was aware that the victim was not a consenting party but it was only at a later stage that he had changed his version, apparently for obvious reasons.

"Under the circumstances, the applicant cannot be heard to say that the subsequent conduct of the victim is contrary to the allegations made in the complaint to the Managing Editor and the insinuations that the victim was a consenting party or that the alleged act was only a light-hearted bantering cannot be accepted", she said.

"Thus, the material on record prima facie indicates that the applicant is involved in committing acts which constitute offences under Section 354A (outraging the modesty of a woman) and 376 (2)(K) (custodial rape) of IPC", the judge said.

She said the offence under Section 354A is punishable with imprisonment of seven years whereas the offence under Section 376 (2) (K) is punishable with imprisonment which can extend to life.

"This, being the case, there can be no dispute that the offences alleged are of serious nature. The gravity of the offence, though not the sole criteria, is one of the essential factors, which would disentitle the applicant for bail", the judge said.

Citing a Bombay High Court judgement, the court observed that it has been held that effective interrogation is of tremendous advantage being disinterring many useful information and also material which would have been concealed.

"Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated.
It is held that very often that interrogation in such condition would reduce to a mere ritual.

 The judge rejected the defence contention that Tejpal was being prosecuted at the behest of persons with vested interest or due to political pressure, saying it has no merit.

"The applicant has nowhere stated in his application that the victim has made the accusation under political pressure or at the behest of any political party.

"There is no material on record that the applicant is prosecuted as a pre-planned conspiracy or that the investigation is biased or tainted. As such, subsequent comments, statements, or acts of any political party are not relevant considerations for deciding the application", she said.

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