I. Regarding the ‘Perfect Victim’ construct:
45. The Trial Court proceeded on a notion that a victim of sexual assault must behave in a stereotypical manner. The PW-1 was to be a perfect victim and only then could the Courts believe her story of woe. The ‘perfect victim’ concept, more formally known as an ‘ideal victim’, describes 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. When a survivor does not fit in this mould – such as delaying a report, knowing the attacker or being under the influence of alcohol- their trauma is normally devalued. 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.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO. 16 OF 2022
The State of Goa Vs Tarunjit Tejpal, s/o Inderjit Tejpal,
CORAM : DR. NEELA GOKHALE &
AMIT S. JAMSANDEKAR, JJ.
PRONOUNCED ON : 6th AUGUST 2026
JUDGMENT (Per Dr Neela Gokhale, J.)
Citation: 2026:BHC-GOA:1562-DB
I N D E X
I. FACTS AND BACKGROUND........................................................3
II. CONTENTIONS OF THE PARTIES..........................................13
A. Submissions on behalf of the Appellant………………………….13
B. Submissions on behalf of the Respondent………………………20
III. ANALYSIS....................................................................................30
A. Scope of interference of the appellate court in an appeal against
acquittal.....................................................................................31
B. The charge against the Respondent and provisions of law.34
C. Probative value of the victim’s evidence..............................36
D. On CCTV footage..................................................................49
E. Omission to collect electronic evidence, material to the defence
case…………................................................................................52
F. On apologies..........................................................................55
G. In connection with allegations of extortion by PW-1..........60
H. On the victim’s behaviour in the lead-up to and aftermath of the
incidents and trauma................................................................63
I. Regarding the ‘Perfect victim’ construct...............................66
J. Exercising control and dominance over the victim..............68
K. On the defence evidence.......................................................70
IV. FINDING OF THE TRIAL COURT ……………………….………...72
V. CONCLUSION..............................................................................76
VI. THE SENTENCE ………………………………….……………..…….…….77
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1. This Appeal assails the Judgment and Order dated 21st May,
2021, passed by the Additional Sessions Judge at Mapusa in Sessions
Case (Ors.) No. 10/ 2014, acquitting the Respondent herein (Original
Accused) of offences punishable under Sections 376(2)(f), 376(2)(k),
354, 354A, 354B, 341 and 342 of the Indian Penal Code, 1860 (‘IPC’).
2. By a reasoned Order dated 23rd April 2022, this Court opined
that a prima facie case is made out and that arguable issues are raised
by the Appellant-State of Goa, thereby necessitating deeper scrutiny
and re-appreciation/reconsideration of the evidence to ascertain the
correctness and legality of the Judgment and Order impugned herein.
Hence, this Court allowed the Leave to Appeal Application and
admitted the Appeal.
I. FACTS AND BACKGROUND
3. Factual Overview & Allegations:
3.1. The Respondent was the Editor-in-Chief and owner of
‘Tehelka’ magazine. The victim was employed by the Respondent
at Tehelka, initially as an intern, then as a trainee journalist, and
later as a correspondent and a senior correspondent. At the
relevant time, she held the designation of Principal
Correspondent and worked in Tehelka's Mumbai office.
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3.2. Tehelka started a festival called ‘THiNK Fest’ in 2011 and
continued to organise it annually in Goa. The victim was stated to
be part of all three editions, in various capacities, as an employee
of Tehelka.
3.3. At THiNK Fest – 2013, the victim was responsible for
attending to and chaperoning the festival's Chief Guest, Mr
Robert De Niro, a Hollywood actor. The festival was held from
07th November 2013 to 11th November 2013 at Grand Hyatt in
Bambolim, Goa.
The Incidents/Allegations
3.4. November 7, 2013 (approx. 10:20 p.m.): The victim’s
allegations against the Respondent are that, on 7th November
2013, at around 10.20 p.m., the Respondent and the victim
accompanied Mr De Niro to his room on the 2nd Floor of Block
No. 7 of the hotel. After dropping Mr De Niro at his room, as the
Respondent and the victim were leaving the lobby, the
Respondent instructed her to accompany him back to Mr De
Niro’s room to wake him up. The victim complied with his
instruction, as he was her boss. Inside the lift, the Respondent
sexually assaulted her, ignoring her pleas to stop. He
manipulated the lift control panel to keep the doors closed. Later
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that night (approx. 1:30 a.m.), he sent her a text message on her
phone reading "the finger tips".
3.5. November 8, 2013: Under the pretext of retrieving an
item for Mr De Niro, the Respondent again ordered the victim to
accompany him in the elevator, during which he committed a
second sexual assault.
Investigative & Procedural Timeline
3.6. On 21st November 2013, news of the Respondent's alleged
sexual assault on a female journalist of Tehelka was published
across various social media sites and electronic media channels.
The victim had also sent an e-mail dated 18th November 2013
(Exhibit 733(1)) to Ms Suparna Chaudhury, alias Shoma
Chaudhury, Managing Editor of Tehelka (PW-45), narrating the
entire incident.
3.7. Shamina Shafiq (PW-38), a member of the National
Commission for Women (‘NCW’), on its behalf, took suo motu
cognizance of the media reports regarding the alleged sexual
assault charge made by the victim against the Respondent and
addressed a letter dated 22nd November 2013 (Exhibit 547) to
the Director General of Police, Goa, requesting the registration of
an FIR in the matter.
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3.8. On the basis of the news regarding the sexual assault
allegation made by the victim against the Respondent, Ms Sunita
Sawant, PI, CID-Crime Branch, Dona Paula (PW-70), the
Investigating Officer (‘IO’), lodged a complaint, pursuant to
which FIR No. 27/2013 dated 22nd November 2013 was
registered against the Respondent at the CID CB Police Station,
North Goa (Exhibit C-3), for offences punishable under
Sections 354A, 376, and 376(2)(k) of the IPC.
3.9. Based on the investigation recorded in the FIR, the IO
addressed a letter dated 02nd December 2013 to the Judicial
Magistrate First Class, Panaji, Goa (‘JMFC’), seeking the
addition of offences punishable under Sections 341, 342, 376(2)
(f) and 376-C of the IPC against the Respondent. Another letter
dated 27th January 2014 was also addressed to the JMFC, Panaji,
Goa, seeking the addition of an offence punishable under Section
354 of the IPC.
3.10. The offences punishable under Sections 376, 376(2)(f),
376(2)(k) and 354A of the IPC are exclusively triable by the
Sessions Court. Accordingly, the Chief Judicial Magistrate,
Panaji, Goa, by Committal Order dated 21st February 2014
(Exhibit C-1), committed the case to the Sessions Court for trial.
Charges Framed Against the Respondent
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3.11. By an Order dated 07th September 2017, the Additional
Sessions Judge, Mapusa, Goa, framed charges against the
Respondent (Exhibit 231-C) for offences punishable under
Sections 354, 354A, 354B, 376(2)(f), 376(2)(k), 341 and 342 of
the IPC. After the charges were framed, the Respondent pleaded
not guilty and sought to be tried.
3.12. During the trial, the Prosecution examined 71 witnesses,
while the defence examined 4. The witnesses are as follows:
Prosecution Witnesses
PW-1: Victim
PW-2: Chetan Shivdas Patil, Nodal Officer, Bharati
Airtel
PW-3: Francis Pereira, Nodal Officer, Vodafone
Cellular
PW-4: Ganesh Ramrao Pawar, Nodal Officer, Bharati
Airtel
PW-5: Ashok Naik, Panch of Spot Panchnama
PW-6: Siddharth Borkar, Panch, Panchnama of emails
PW-7: Kanhoba Naik, Panch, Arrest Panchnama and
Panchnama of Respondent’s mobile
PW-8: Kiran Shirodkar, Panch – Attachment of
Respondent’s clothes
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PW-9: Gangaram Narvekar, Panch, conversations
between the victim and Suparna Chaudhury
(PW-45)
PW-10: Sarita Khaneja, CEO of Cyber Space
Networking Systems
PW-11: Ishan Tankha, Journalist at Tehelka and
victim’s friend
PW-12: Shougat Dasgupta, Journalist at Tehelka and
victim’s friend
PW-13: Raghu Amay Karnad, Journalist at Tehelka
PW-14: M. Krishna, Assistant Director, CFSL,
Hyderabad
PW-15: Harsimran Gill alias Bicky, victim’s friend
PW-16: Priyan Shivpalan, Safety and Security Manager
at Grand Hyatt
PW-17: Shyamsundar Borkar, Taxi Driver
PW-18: Vasudev Bhat, Businessman – iTechnologix
PW-19: Ashok Madaikar, Draughtsman
PW-20: Sanjay Thakur, Panch, Seizure Panchnama of
the CPU
PW-21: Sunil Desai, IT Manager and Panch of the
CCTV Panchnama conducted at Grand Hyatt
PW-22: Harish Iyer, Panellist at THiNK Fest
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PW-23: Renu Kumar, Panch of Attachment of victim’s
clothes
PW-24: Khawaja Ayub Zickriya, General Manager of
International Centre, Goa
PW-25: Swapnil Chendwankar, Project Engineer for
Siemens Limited
PW-26: Mrs Martha Fernandes, Receptionist in Hotel
Paradiso Casa
PW-27: Shiva Naik, Taxi Business
PW-28: Mahendra Bhandari, Police photographer, CID
Crime Branch
PW-29: Brendan D’Souza, PSI attached to CID Crime
Branch, Dona Paula
PW-30: Sudiksha Naik, PI attached to CID Crime
Branch, Dona Paula
PW-31: Praveen Gawas, PI attached to CID Crime
Branch, Dona Paula
PW-32: Virendra Veluskar, PI attached to CID Crime
Branch, Dona Paula
PW-33: Laxi Amonkar, PSI attached to CID Crime
Branch, Dona Paula
PW-34: Damodar Tari, Audio-Video
Telecommunication technician at Grand Hyatt
PW-35: Marcelo Leslie Remedios, Operations
Manager of Freedom Holidays Pvt. Ltd.
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PW-36: Neena Tejpal Sharma, Respondent’s sister and
Partner in Anant Media Pvt. Ltd.
PW-37: Udayaditya Pathak, Regional Manager
(Commerce) at Siemens Ltd.
PW-38: Shamina Shafiq, Member of the National
Commission for Women
PW-39: Manguesh Tyagi, PI attached to Pandav Nagar
Police Station, Gaziabad, Uttar Pradesh
PW-40: Shradha Garg, Businesswoman, Gaziabad,
Uttar Pradesh
PW-41: Saty Narayan Sharma, Employee of Exclusive
Vacation Pvt. Ltd.
PW-42: Brij Kishor Sharma, Accounts Manager of
Agni India Pvt. Ltd. (Anant Media Pvt. Ltd.)
PW-43: Prawal Srivastava, Consultant, IT, Anant
Media Pvt. Ltd.
PW-44: Ameen Abdul Jabbar, Lift Technician
PW-45: Suparna Chaudhury alias Shoma Chaudhury,
Journalist and Managing Editor of Tehelka
PW-46: Amol Athanikar, Panch of Photograph
Panchnama
PW-47: Walter Pereira, Assistant Director of Food and
Beverages, Grand Hyatt
PW-48: Vivek Shenvi, Assistant Security Manager,
Grand Hyatt
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PW-49: Pushparaj Gaude, Assistant Security Manager,
Grand Hyatt
PW-50: Satish Mahale, Security Team Leader, Grand
Hyatt
PW-51: Lavu Gawas, Security Team Leader, Grand
Hyatt
PW-52: Dilip Ghadi Gaonkar, Security Team Leader,
Grand Hyatt
PW-53: S. Vijayalaxmi, victim’s mother
PW-54: Shripad Shankar Amonkar, Network Engineer
for Goan Hotel and Clubs Pvt. Ltd.
PW-55: Mario Rebello, Panch of attachment of Hard
disks
PW-56: G. Vishnu, Freelance Journalist
PW-57: Shawn D’Sa, Security Team Leader, Grand
Hyatt
PW-58: Vismay Sawant, Security Team Leader, Grand
Hyatt
PW-59: Persis Sidhwa, Member of Majlis, an NGO
PW-60: Rajesh Job, PI attached to CID Crime Branch,
Dona Paula
PW-61: Sreenivasan Jain alias Vasu, Journalist in
NDTV
PW-62: Ajachi Chakrabarti, Journalist and victim’s
colleague
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PW-63: Rajiv Malekar, Employee in We Internet
PW-64: Pooja Khedkar, Employee in We Internet
PW-65: Aman Sethi, victim’s Partner/ Husband
PW-66: Noel Noronha, Director of Engineering, Grand
Hyatt
PW-67: Yuvraj Torawane, Deputy Manager, Mitsubishi
ETA India Pvt. Ltd.
PW-68: Vishwesh Karpe, PI attached to Cyber Crime
Police Station, Ribandar
PW-69: Vikram Vijay Pimplapure, Employee of
Mitsubishi ETA India Pvt. Ltd.
PW-70: Sunita Sawant, Investigating Officer
PW-71: Vijaykumar Salgaonkar, ASI attached to Crime
Branch, Ribandar
Defence Witnesses
DW-1: Malika Singh, victim’s friend
DW-2: Vijay Pandey, Photo Journalist in Tehelka
DW-3: Rohit Chawla, Photo Journalist
DW-4: Nikhil Agarwal
3.13. The Respondent’s statement under Section 313 of the Code
of Criminal Procedure, 1973 (‘CrPC’) was recorded. The
Respondent’s defence is one of false implication. The Additional
Sessions Judge at Mapusa, by its Judgment and Order dated 21st
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May 2021, acquitted the Respondent of all the offences charged
against him. Aggrieved by the acquittal, the State of Goa has
preferred the present Appeal. By order dated 23rd April 2022, the
application seeking Leave to Appeal was allowed, and the Appeal
was admitted. The records and proceedings were called for and
received.
4. Mr Tushar Mehta, learned Solicitor General of India, appeared
for the Appellant and Mr Aabad Ponda, learned Senior Counsel,
represented the Respondent.
II. CONTENTIONS OF THE PARTIES
A. Submissions on behalf of the Appellant:
5. Mr Mehta, learned Solicitor General of India, made the following
submissions:
5.1. Mr Mehta emphasised that this is not a case of rape,
simpliciter. The Respondent was the victim's employer, mentor,
her father's friend, and the father of her close friend. He held a
position of dominance, control, trust, and authority over her. Due
to this abuse of authority, the charges against the Respondent fall
under the specific aggravated categories of the IPC, namely
Sections 376(2)(f) and (k).
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5.2. Mr Mehta argued that under Section 114A of the Indian
Evidence Act (‘IEA’), when a victim states in her testimony that
she did not consent in a prosecution under Section 376(2)(f) or
(k), the Court must presume lack of consent. He contended that
the victim's statement alone was legally sufficient for conviction
and that the Trial Court failed to appreciate or apply this
statutory presumption.
5.3. Mr Mehta argued that the Trial Court erroneously
dismissed an extensive network of witnesses who corroborated
the victim's account immediately after the incidents. Mr Mehta
took the Court through the victim’s (PW-1) deposition, in which
she narrated her ordeal on 07th November 2013 and 08th
November 2013, in detail. He also took us through the
depositions of Ishan Tankha, the victim’s friend (PW-11), and
Shougat Dasgupta, another friend of the victim (PW-12), who
corroborated the victim’s story. Another friend, G. Vishnu (PW-
56), and Raghu Karnad (PW-13), also corroborated the victim’s
version as narrated to them. Mr Mehta further relied upon the
depositions of the victim’s partner, whom she later married,
Aman Sethi (PW-65); Harsimran Gill, her friend (PW-15);
Harish Iyer (PW-22); her mother (PW-53); and Sreenivasan
Jain (PW-61).
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5.4. Mr Mehta contended that despite PW-11, PW-12 and PW-
56 fully corroborating the victim’s version, the Trial Court
erroneously rejected their testimony as false. The testimony of
Aman Sethi (PW-65), the victim's partner, was unfairly
dismissed by the court on the blanket assumption that he was an
"interested witness."
5.5. Mr Mehta said that the trial court's logic was flawed
because it refused to believe the victim on the "absurd" ground
that it was implausible for her to confide in three male colleagues
rather than her female room-mate.
5.6. Mr Mehta also took us through the victim’s crossexamination.
She was subjected to an excessive and invasive
cross-examination. Mr Mehta highlighted that the victim was
subjected to a brutal cross-examination spanning nearly 700
pages across 18 separate hearing dates. The prosecution argued
that the highly invasive questioning and aggressive attacks on her
character made it seem as though "the victim and not the
Respondent [was] on trial." The Trial Court not only failed to
disallow these inappropriate and irrelevant questions but also
subsequently used the resulting material to unfairly discredit the
victim.
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5.7. Mr Mehta contended that the Trial Court failed to
appreciate that the victim had addressed a clear, written e-mail
complaint to Suparna Chaudhury, Managing Editor (PW-45),
detailing both instances of sexual assault, wrongful restraint, and
confinement. Despite this clear, contemporaneous documentary
evidence of the ordeal, the Trial Court still failed to invoke the
mandatory legal presumption of lack of consent under Section
114A of the IEA.
5.8. According to Mr Mehta, the Respondent admitted, in two
apology letters dated 19th November 2013 (Exhibit 733 (2) and
733 (3)), to an unwanted and forcible sexual encounter. By email
dated 18th November 2013, the victim had clearly conveyed
the details of the sexual assault to Ms Suparna (PW-45). She had
clearly communicated that she required a written apology from
the Respondent and an acknowledgement of the same to be
circulated within the organisation. Pursuant to this e-mail, the
Respondent e-mailed a formal apology letter to the victim,
expressing his unconditional regret for the shameful lapse of
judgment that led him to attempt a sexual liaison with the victim
despite her reluctance. He also sent an informal e-mail admitting
the encounter and apologising for it. Mr Mehta contended that
this apology itself amounts to an admission of guilt. Had the
victim been lying about the incidents, the Respondent would
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have absolutely denied the accusation and not issued any
apology. The Respondent’s defence that the said apology e-mails
were sent under pressure is unbelievable in the circumstances.
5.9. Mr Mehta further contends that the victim herself had no
intention to prosecute the Respondent. This is evident from the
fact that her only demand was that the organisation constitute an
Internal Complaints Committee (‘ICC’) under the Visakha
Guidelines laid down by the Supreme Court of India to inquire
into the Respondent’s conduct. Even though no such committee
was constituted by PW-45, who was Managing Editor of Tehelka,
the victim herself did not register any FIR. Ultimately, the
complaint was registered by the IO (PW-70) on the basis of news
appearing on various social media sites, press media, and the
letter received by the Police from a member of the NCW. Mr
Mehta says this demonstrates no ill-will or motivation on the
part of the victim to prosecute the Respondent. However, once
the FIR was registered and the law enforcement machinery was
set in motion, the victim fully co-operated and stood her ground
throughout the trial. This clearly shows the veracity of the
victim’s accusation.
5.10. Mr Mehta further submitted that, admittedly, the
Respondent was in a dominant position vis-Ã -vis the victim. The
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Trial Court ignored the victim’s deposition that the Respondent
was her mentor and employer; her father’s friend; and the father
of her close friend. The victim also stated that the Respondent
was a powerful and well-connected person, in a position to ruin
her career. Hence, Mr Mehta submits that the offences against
the Respondent clearly fall within the category of aggravated
offences under the IPC.
5.11. Having read the depositions of PW-1, i.e., the victim, and
of the witnesses who have corroborated PW-1's testimony, Mr
Mehta drew our attention to the Trial Court's findings, which are
directly contrary to the evidence on record and per se perverse.
5.12. Mr Mehta tendered before us the report dated 23rd January
2013 of the committee under the chairmanship of Justice J. S.
Verma (Retired) on amendments to the criminal law, drawing
our attention to the object and jurisprudence behind introducing
Section 114A to the IEA and the category of aggravated offences
under Sections 375 and 376 of the IPC.
5.13. Mr Mehta, in conclusion, submitted that the instant case is
a classic example of power dynamics at play. Whenever women
speak the truth to power, power lashes out at them. This power
differential enables power to vilify the victim. The present case
also reveals the tendency to exercise superior power, whether in
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terms of wealth, social standing, or hierarchy in the workplace, to
deprive a woman of her bodily autonomy.
5.14. Mr Mehta relied on the following decisions:
1) State of Himachal Pradesh v. Hukum Chand
alias Monu1
2) State of Uttar Pradesh v. Chhotey Lal2
3) State of Punjab v. Ramdev Singh3
4) State of H.P. v. Shree Kant Shekari4
5) State of Maharashtra v. Chandraprakash
Kewalchand Jain5
6) Rai Sandeep alias Deepu v. State (NCT of
Delhi)6
7) State of Punjab v. Gurmit Singh & Ors.7
8) Vishnu alias Undrya v. State of Maharashtra8
9) Rajinder alias Raju v. State of Himachal
Pradesh9
10) Puran Chand v. State of Himachal Pradesh10
11) Bodhisattwa Gautam v. Subhra Chakraborty
(Ms)11
12) Visveswaran v. State Rep. By S.D.M.12
1 2026 SCC OnLine SC 462
2 (2011) 2 SCC 550
3 (2004) 1 SCC 421
4 (2004) 8 SCC 153
5 (1990) 1 SCC 550
6 (2012) 8 SCC 21
7 (1996) 2 SCC 384
8 (2006) 1 SCC 283
9 (2009) 16 SCC 69
10 (2014) 5 SCC 689
11 (1996) 1 SCC 490
12 (2003) 6 SCC 73
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13) State of Jharkhand v. Shailendra Kumar Rai
alias Pandav Rai13
14) Rosy & Anr. v. State of Kerala & Ors.14
15) Achhar Singh v. State of Himachal Pradesh15
16) Mahendran v. State of Tamil Nadu16
17) Gangadhar Behera & Ors. v. State of Orissa17
18) Goverdhan & Anr. v. State of Chhatisgarh18
19) Vijay Pal v. State (Government of NCT of
Delhi)19
20) Jitender Kumar v. State of Haryana20
21) Pappu Tiwari v. State of Jharkhand21
B. SUBMISSIONS ON BEHALF OF THE RESPONDENT:
6. Mr Aabad Ponda, learned Senior Counsel, made the following
submissions:
6.1. At the outset, Mr Ponda emphasised the scope of an
appellate court’s jurisdiction when entertaining an appeal against
acquittal. He submitted that an acquittal reinforces the
presumption of innocence in favour of the accused.
Consequently, an appellate court may interfere with an order of
acquittal only if it finds manifest perversity in fact and law. He
13 (2022) 14 SCC 299
14 (2000) 2 SCC 230
15 (2021) 5 SCC 543
16 (2019) 5 SCC 67
17 (2002) 8 SCC 381
18 (2025) 3 SCC 378
19 (2015) 4 SCC 749
20 (2012) 6 SCC 204
21 (2022) 17 SCC 664
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relied on the following decisions of the Supreme Court to support
his argument:
1) Chandrappa & Ors. v. State of Karnataka22
2) State of Uttar Pradesh v. Banne @ Baijnath &
Ors.23
3) Ballu alias Balram alias Balmukund & Anr. v.
State of Madhya Pradesh24
4) Mulak Raj & Ors. v. State of Haryana25
5) Aruvelu & Anr. v. State represented by the Public
Prosecutor & Anr.26
6.2. Mr Ponda submitted that the sole testimony of the victim
(PW-1) must be evaluated against the depositions of 72
prosecution witnesses. The prosecution’s case rests entirely on
PW-1’s assertion that the alleged incident occurred inside the lift
of a starred hotel. However, she was unable to explain how the
Respondent kept the lift doors closed. In an e-mail dated 16th
November 2013, PW-1 reinforced her statement that the
Respondent was simply pressing buttons on the lift’s panel to
keep the lift in circuit, preventing it from stopping anywhere.
PW-1’s statement is impossible, as Priyan Shivpalan (PW-16),
Sunil Desai, IT Manager and Panch of CCTV (PW-21), Sudiksha
Naik, PI attached to CID, Crime Branch (PW-30), and Amin
Jabbar, Lift Technician (PW-44) deposed that the lift doors
22 (2007) 4 SCC 415
23 (2009) 4 SCC 271
24 (2024) 12 SCC 202
25 (1996) 7 SCC 308
26 (2009) 10 SCC 206
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cannot be kept shut. Thus, PW-1’s statement that the Respondent
sexually assaulted her in the lift by keeping its doors closed is
doubtful and unbelievable.
6.3. The defence’s case is that the victim and the Respondent
entered the lift, mistakenly exited on the first floor, walked to the
end of the first floor corridor, returned to the lift, ascended to the
second floor, and immediately took the stairs to the ground floor.
This sequence of events spanned over two minutes, leaving no
opportunity for the alleged sexual assault. Mr Ponda says that the
IO failed to collect the CCTV footage of the first floor corridor,
thereby suppressing vital evidence that would have established
the defence’s case. He argued that the IO deliberately bungled the
collection of evidence, specifically, the first floor footage of 07th
and 08th November 2013, on which the alleged incident took
place. He relied on the following decisions of the Supreme Court:
1) State of Uttar Pradesh v. A.K. Gaba Etc.27
2) Tomaso Bruno & Anr. v. State of Uttar Pradesh28
6.4. Mr Ponda presented a twofold argument for our
consideration. He submitted that the prosecution case is highly
suspect on account of the unexplained delay in registering the
FIR. Admittedly, after the incident, the victim confided in her
three friends, namely PW-11, PW-12 and PW-56. She drafted a
27 2026 SCC OnLine SC 967
28 (2015) 7 SCC 178
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narrative of the alleged incident and e-mailed it to her friends
and PW-45 on 18th November 2013. Before circulating this note,
PW-1 deleted portions of her original note, demonstrating a
deliberate effort to alter her account.
She requested a written apology from the Respondent and
demanded that Tehelka constitute an Anti-Sexual Harassment
Cell as per the Visakha Guidelines to investigate the matter
immediately. Her friends, PW-11, PW-12 and PW-56, were CC’d
on the e-mail. PW-45 replied to the victim the same afternoon
and also CC’d PW-11, PW-12 and PW-56. Secondly, by copying
her friends on her correspondence with PW-45, PW-1 engaged in
active deliberation with potential witnesses regarding her version
of events. Relying on the Supreme Court’s decision in Ganesh
Bhavan Patel and Anr. v. State of Maharashtra29, Mr
Ponda submitted that the delay in registering the FIR on 22nd
November 2013 was used to buy time, shape the narrative and
align witness statements.
6.5. Mr Ponda submitted that to sustain a conviction on the
uncorroborated testimony of a victim, the evidence must be of
sterling quality – unblemished, natural and trustworthy. Mr
Ponda contended that PW-1’s testimony is riddled with
29 (1978) 4 SCC 371
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contradictions, inconsistencies, and other improbabilities, as
demonstrated by the following:
(a) Absence of Intent to Prosecute: PW-1 did not
originally intend to initiate criminal proceedings. Her only aim
was to extort money from the Respondent. The IO (PW-70)
registered the offence on the basis of media reports. Mr Ponda
accused a particular political party of being interested in
prosecuting the Respondent and stated that the FIR was
registered only on the basis of a blog written by the late Mr Arun
Jaitley, a senior politician.
(b) Pre-planned Deliberations: In her e-mail to PW-11,
PW-12, and PW-56 dated 15th November 2013 (Exhibit 701),
PW-1 stated that based on legal advice regarding media scrutiny,
she had decided not to file a complaint, and asked whether her
friends would stand by her. Mr Ponda contended that this proves
pre-planned alignment of witness statements.
(c) Shift in Allegations: In her e-mail dated 16th November
2013 (Exhibit 704(1)), PW-1 named Nikhil Agarwal (DW-4) as
the first person she informed post-incident. However, his name
was omitted from subsequent e-mails without explanation.
Furthermore, PW-1 initially characterised the incident as an
“attempted rape”, yet the Respondent was charged with rape.
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(d) Discrepancies and Inconsistencies: During
deposition, PW-1 was unable to specify key details of the assault,
including whether the Respondent pressed a single button or
multiple buttons on the lift’s panel; whether the lift was moving
or stationary; who exited the lift first, or whether she was
physically pulled inside. Furthermore, PW-1’s claim that she
could not report the incident to PW-45 immediately, due to lack
of opportunity, was contradicted by PW-45, who testified to
meeting PW-1 multiple times during the THiNK Fest.
(e) Text Message Allegation: PW-11 and PW-12 stated in
their depositions that they did not see the message containing the
word ‘finger tips’ sent by the Respondent to PW-1, but they
repeated what she told them immediately after receiving it.
(f) Relationship with Defence Witnesses: While PW-1
downplayed her relationship with Malika Singh (DW-1) and
Kartikeya, describing them as mere acquaintances, WhatsApp
chats from the ‘Woof, Wag and Wiggle’ group established a close
personal relationship.
6.6. Mr Ponda pointed out that PW-1’s claim that she refrained
from reporting the matter to protect her job at Tehelka is false.
The text messages in Exhibit 394 show that prior to the
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incident, PW-1 had received a book grant on rape and was
actively applying for employment with a competitor, ‘Scroll.in’.
6.7. PW-1’s claim that she stayed back in Goa to process her
‘trauma’ is contradicted by other evidence. Her extended stay was
pre-planned. Martha Fernandes (PW-26) confirms that PW-1
visited her two friends at Hotel Casa Paradiso, and other
messages between PW-1 and Harsimran Gill (PW-15) show her
co-ordinating her stay with her ‘Russian Daddy’.
6.8. Vijay Pandey (DW-2), the photographer, produced
photographs marked as Exhibits 793, 794 (1) and (2),
depicting PW-1 holding a wine glass. DW-2 further testified that
PW-1 appeared calm and composed when he met her on 10th
November 2013.
6.9. Prawal Srivastava (PW-43) testified that on the day after
the incident, PW-1 requested the Respondent to pose for a
photograph with Robert De Niro. Mr Ponda submitted that this
behaviour is inconsistent with the conduct of a victim of sexual
assault towards her perpetrator.
6.10. Mr Ponda also attempted to tarnish the morality and
character of PW-1. He submitted that the chat logs from the
group ‘Woof, Wag and Wiggle’ (as produced by DW-1) reveal
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PW-1’s light-hearted interactions about events involving Robert
De Niro, further undermining her claim of distress.
6.11. Text messages between PW-1 and PW-15 reveal her intent to
‘unleash a reign of sexual terror on unsuspecting thinkers’. Mr
Ponda argued that this statement reflects a pre-meditated intent
to fabricate allegations against the Tehelka executives for
financial gain. This also explains why she initially eschewed a
police complaint in favour of internal demands of an apology and
following the procedure of constituting an ICC to enquire into
her complaint of sexual harassment in terms of the Supreme
Court guidelines in the Visakha case.
6.12. In this context, Mr Ponda referred to certain chats of PW-1
with her friends, post the incidents, wherein there is a discussion
regarding demanding a severance package from Tehelka.
6.13. On the requirement of sterling quality evidence of the
victim to inspire confidence in the court, Mr Ponda refers to the
following decisions of the Supreme Court.
1) Vimal Suresh Kamble v. Chaluverapinake
Apal S.P. & Anr. 30
2) Sadashiv Ramrao Hadbe v. State of
Maharashtra & Anr.31
30 (2003) 3 SCC 175
31 (2006) 10 SCC 92
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3) Ganesan v. State Represented by its
Inspector of Police32
4)Tameezuddin alias Tammu v. State (NCT of
Delhi)33
5) Ramdas & Ors. v. State of Maharashtra34
6) Rai Sandeep alias Deepu v. State (NCT of
Delhi) (supra at pg. 19)
Mr Ponda thus attempted to demolish the testimony of the
victim by attacking her credibility, veracity, and truthfulness.
6.14. Regarding the apology e-mails from the Respondent, Mr
Ponda argued that they are not voluntary confessions. He stated
that the formal e-mail was drafted by PW-45, whom he was
pressured by, along with his sister Neena (PW-36), to send it,
with the promise that it would resolve the issue. Referring to PW-
1’s e-mail dated 19th November 2013 (Exhibit 733(4)), which
listed four settlement demands, Mr Ponda claims that the
apology was obtained through inducement and coercion. To
exclude these e-mails as extra-judicial confessions, he cited
relevant Supreme Court decisions.
1) Pakala Narayan Swami v. King Emperor35
2) Palvinder Kaur v. State of Punjab36
3) Raja alias Ayyapan v. State of Tamil Nadu37
32 (2020) 10 SCC 573
33 (2009) 15 SCC 566
34 (2007) 2 SCC 170
35 1939 SCC OnLine PC 1
36 (1952) 2 SCC 177
37 (2020) 5 SCC 118
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4) Seeni Nainar Mohammed v. State Represented by
Deputy Superintendent of Police 38
5) Veera Ibrahim v. The State of Maharashtra39
6.15. In conclusion, Mr Ponda submitted that PW-1’s evidence
is not of sterling quality. Her credibility is seriously and adversely
affected by her post-incident conduct. The ‘trauma processing’
story is unbelievable on account of her behaviour post THiNK
Fest. Apart from the victim’s testimony, there is no corroborative
evidence that points to the guilt of the Respondent. He submitted
that howsoever gruesome and revolting an offence may be, an
accused can be convicted only on legal evidence and not on
surmises and conjectures. Hence, the intervention of this Court is
not justifiable. Mr Ponda thus prays that the Appeal be rejected
and the Acquittal order be confirmed.
7. Mr Mehta, in his rejoinder, submitted that the victim was
consistent in her deposition, and her evidence is of sterling quality. Mr
Mehta relied on the decision in Gangadhar Behera (supra at pg. 20)
and Achhar Singh (supra at pg. 20), to say that even if some portion
of the evidence is deficient, in case the residue is sufficient to prove the
guilt of the accused, his conviction can be maintained. In reference to
Mr Ponda’s argument that the CCTV footage of the first floor which
could have proved the defence case, was not collected from the hotel,
38 (2017) 13 SCC 685
39 (1976) 2 SCC 302
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Mr Mehta argued that the defence case appears to be that neither the
Respondent nor the victim were present at the spot of incident which is
inside of the lift. Clearly, the Respondent has taken a plea of alibi. The
allegation of absence of CCTV footage of the first floor is not a positive
defence. An alibi requires the Respondent to lead positive evidence to
prove that he and the victim ventured out of the lift, which is not led.
Mr Mehta relied on the case of Pappu Tiwari (supra at pg. 20),
Vijay Pal (supra at pg. 20) and Jitender Kumar (supra at pg. 20).
Mr Mehta reiterated his prayer of setting aside the impugned Judgment
and Order.
III. ANALYSIS
8. Before addressing the rival arguments, it's important to note that
the impugned Judgment and Order primarily centred on PW-1’s moral
character, her behaviour before and after the incidents, her open
interactions with friends, and her overall personality. A detailed review
of PW-1’s cross-examination shows that the defence counsel repeatedly
focused on her personally, as if she were on trial rather than the
Respondent. Her private life was extensively examined, revealing her
past relationships, social media posts prior to the incidents, and her
public responses to trauma. Nearly half of the 1000-page crossexamination
consisted of repetitive questions about specific details,
such as her position during various acts with the Respondent, including
when he kissed her, lifted her dress, and engaged in sexual acts. The
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incident took place in 2013, and evidence was recorded from 2018 to
2021. Five years later, PW-1 was persistently asked to recount details of
the rape, not to clarify facts or test her credibility, but to find
inconsistencies and distort her account.
9. What struck us most was the Court's noticeable silence during
PW-1's cross-examination by the defence. We find it surprising that the
Court allowed the defence to use this time to harass and humiliate her.
It appears the Court overlooked that the victim, having already faced
trauma, might feel too ashamed, nervous, or confused to respond
clearly when questioned repeatedly in an unfamiliar environment. Her
silence or a confused remark could be wrongly interpreted as
contradictions in her testimony. Having recorded this, we would now
like to reiterate the principles laid down by the Hon'ble Supreme Court
governing the scope of interference by the High Court in an appeal filed
by the State challenging the acquittal of the accused.
A. Scope of interference of the appellate court in an appeal
against acquittal: -
10. The Hon'ble Supreme Court in Rajesh Prasad v. State of
Bihar40 has encapsulated the legal position governing the field and
held as under:
"29. After referring to a catena of judgments, this Court culled out the
following general principles regarding the powers of the appellate
40 (2022) 3 SCC 471
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court while dealing with an appeal against an order of acquittal in the
following words: (Chandrappa case10, SCC p.432, para 42)
42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted
conclusions", "glaring mistakes", etc., are not intended
to curtail extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more
in the nature of "flourishes of language" to emphasise
the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption of
in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”
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11. Similar reiteration of law can be found in H.D. Sundara v.
State of Karnataka41, Ballu alias Balram alias Balmukund
(supra at pg. 21), and Constable 907 Surendra Singh & Anr. vs.
State of Uttarakhand42. Perusal of the judgments, as passed by the
Hon'ble Supreme Court, demonstrates that scope of interference in the
case of acquittal is very limited and the same would be warranted by
the High Court only if the judgment of acquittal suffers from patent
perversity; that the same is based on a misreading/omission to
consider material evidence on record; and that no two reasonable views
are possible and only the view consistent with the guilt of the accused is
possible from the evidence available on record. It has further been held
that the prosecution, in order to prove its case, must establish the guilt
of the accused from the oral as well as documentary evidence placed on
record. It is a primary principle that the accused 'must be' and not
merely 'may be' proved guilty before a court can convict the accused.
There is not only a grammatical but a legal distinction between 'may be
proved' and 'must be or should be proved'. The facts so established
should be consistent only with the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis except that the
accused is guilty. It has also been held that the circumstances should be
such that they exclude every possible hypothesis except the one to be
proved. There must be a chain of evidence so complete as not to leave
41 (2023) 9 SCC 581
42 (2025) 5 SCC 433
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any reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probabilities the act
must have been done by the accused.
B. The charge against the Respondent and provisions of law: -
12. The Respondent was charged with offences punishable under
Sections 376(2)(f), 376(2)(k), 354A, 354B, 341 and 342 of the IPC.
Section 376 provides for punishment for rape. Section 375 defines rape
as under:
“375. Rape. —A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any
other person; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman or
makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any part of the
body of such woman or makes her to do so with him or any other
person; or
(d) applies his mouth to the vagina, anus, urethra of a woman
or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven descriptions:
—
First. —Against her will.
Secondly. —Without her consent.
Thirdly. —With her consent, when her consent has been
obtained by putting her or any person in whom she is interested in
fear of death or of hurt.
Fourthly. —With her consent, when the man knows that he is
not her husband and that her consent is given because she believes
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that he is another man to whom she is or believes herself to be
lawfully married
Fifthly. —With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent.
Sixthly. —With or without her consent, when she is under
eighteen years of age.
Seventhly. —When she is unable to communicate consent.
Explanation 1. —For the purposes of this section, “vagina” shall
also include labia majora.
Explanation 2. —Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of verbal
or non-verbal communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1. —A medical procedure or intervention shall not
constitute rape.
Exception 2. —Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is not rape.”
13. Section 376(2)(f) provides for punishment for rape by a person
being a relative, guardian, or teacher of or a person in a position of
trust or authority towards the woman, while Section 376 (2)(k) relates
to rape by a person being in a position of control or dominance over a
woman. Section 354 provides for punishment for assault or use of
criminal force to woman with an intent to outrage her modesty, Section
354A provides for punishment for sexual harassment, Section 354B
provides for punishment for assault or use of criminal force to woman
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with an intent to disrobe her, and Sections 341 and 342 relate to
punishment for wrongful restraint and wrongful confinement,
respectively.
14. Admittedly, the Respondent was the Editor-in-Chief and owner
of Tehelka, where PW-1 was an employee and, at the relevant period,
the principal correspondent. Undoubtedly, the Respondent was in a
position of control and dominance over PW-1. We have discussed this
aspect at a later stage in the judgment.
C. Probative value of the victim’s evidence: -
15. PW-1 testified that during THiNK Fest 2013, she was assigned to
chaperone Mr Robert De Niro, the chief guest. She described the
incident on November 7, 2013, when she and the Respondent took Mr
De Niro to his room on the 2nd Floor of Block 7 at Hotel Grand Hyatt.
They then descended to the ground floor in the lift. A few minutes later,
around 10:20 p.m., the Respondent suggested waking Mr De Niro.
Although confused, the victim agreed. As they entered the lift, the
Respondent began to kiss her, forcing his tongue into her mouth.
Despite her protests, he continued, ensuring the lift doors stayed
closed. He then knelt, pulled down her underwear, and assaulted her.
PW-1 pleaded for him to stop, but he ignored her. He lifted her dress,
put his face between her thighs, and inserted his tongue. She pushed
him away, and he stood and inserted his fingers into her. When the lift
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opened on the 2nd Floor, she quickly pulled up her underwear, fixed her
dress, and they left via the stairs. PW-1 reminded him that she was her
daughter’s friend and employee, but the Respondent shockingly said
this was "the easiest way to keep her job."
16. The second incident happened the very next day, on 08th
November 2013. The Respondent told PW-1 that they needed to
retrieve something from Mr. De Niro’s room. PW-1 was scared and
hesitant. She offered to go alone, but since the Respondent was her
boss and had asked her to accompany him, she felt obliged to follow
him into the lift. PW-1 testified that once the lift doors closed, he
started to kiss her again. She pushed him and asked him to stop. He
paused, smiled, and patted her cheeks. When she turned away to face
the closed lift doors, he reached out, lifted her dress, and said, ‘You are
unbelievable’. When the lift stopped, they exited but went back in.
When the lift reached the ground floor and the doors opened, he
grabbed her buttock. These are the two incidents of sexual assault as
recounted by PW-1.
17. Insofar as the first incident is concerned, after exiting Block 7,
she went to the International Centre, Dona Paula, Goa, where the
Tehelka staff were staying. PW-1’s actions thereafter are as under:
i) She went to the room where PW-11, PW-12 and PW-62
were staying. She also called another colleague, PW-56, to join
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them. PW-1 and PW-11 had studied together in school. All of
them were working at Tehelka.
ii) She confided in them about the incident on 07th November
2013. They were shocked and offered to resign. She also called
her partner, PW-65, who was then in Ethiopia, and shared her
trauma.
iii) She received a text message from the Respondent on her
Blackberry phone at 1:30 a.m. that read ‘the finger tips’. She
conveyed this to her friends as well.
18. She also recounted the second incident to PW-11. Despite this,
she continued her duties during the event and remained composed. She
met the Respondent’s daughter and told her about the Respondent’s
actions. PW-1 added that Tiya, the Respondent’s daughter, interrupted
to say she had seen the Respondent do the same to someone when she
was 13 years old, so it didn't surprise her. When the Respondent
learned from his daughter that PW-1 had complained, he became angry
and rebuked her. PW-1 also disclosed the Respondent’s sexual assault
to PW-13, PW-15, and PW-61, and shared her trauma with friends, her
mother (PW-53), and her stepmother. She sought legal advice from
senior lawyers Rebecca John and Indira Jaising. PW-1 testified that the
Respondent sent her multiple texts, attempting to dismiss the incidents
as ‘drunken banter’. He reproached her for not understanding parent-
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child dynamics and tried to shame her for informing his daughter. PW-
1 continued with the event, and after it ended, checked out of the
International Centre, Goa. She explained she couldn’t go home to
Mumbai because her mother had guests over and she felt
uncomfortable confiding in her mother in front of others. She then
spent a few days in Goa with friends before returning to Mumbai on 15th
November 2013.
19. PW-1 deposed that she wrote a summary of the incidents, as she
thought it important in case she decided to complain. On 16th
November 2013, the Respondent texted her, asking whether she had
cleared up the situation with his daughter, Tiya. PW-1 reiterated her
accusation against the Respondent, but he called her a liar and warned
her not to contact him again. PW-1 maintained her accusation and told
him point blank that he had done the most horrible things to her. On
18th November 2013, PW-1 stated that she had sent a complaint to PW-
45 via e-mail (Exhibit 733(1)). She also CC’d the e-mail to PW-11,
PW-12 and PW-56. There was a flurry of e-mails between PW-1 and
PW-45. PW-1 deposed that she had sought an apology from the
Respondent and an inquiry under the Visakha guidelines. Ultimately,
the Respondent e-mailed two apology letters dated 19th November
2013; one formal apology and one personal apology addressed only to
PW-1.
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20. The defence lawyers extensively cross-examined PW-1,
confronting her with many past messages, e-mails, photos, and chats.
They questioned her about her intimate relationships and past conduct
to undermine her dignity and credibility. The cross-examiners tried to
discredit her trauma testimony by presenting alleged inconsistencies
about the assault details, such as her body position, the lift's status, and
the Respondent's actions. Despite nearly 1000 pages of invasive
questions designed to shake her, PW-1 remained consistent and
steadfast, with no contradictions in her account.
21. PW-11 corroborated PW-1's testimony that she came to their
room around 12:30 a.m. on the night of 07th-08th November 2013,
crying and recounting the incident, which PW-11, PW-12, and PW-62
heard. PW-11 described the event as PW-1 narrated, including her
mention that the Respondent repeatedly asked about her underwear's
colour. They discussed options, including lodging a complaint with
senior management or resigning, but she was afraid to go to the police
due to the Respondent's political connections and fear of losing her job.
She also mentioned receiving an SMS from the Respondent with the
words ‘finger tips’.
22. PW-11 also deposed that PW-1 informed him about the second
incident. He narrated the incident exactly as PW-1 had narrated it to
him earlier, and his account is in consonance with PW-1’s testimony.
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He further deposed to having shared this information with PW-12 and
PW-56. He also deposed to having received a CC from PW-1 of an email
sent by PW-1 to PW-45 on 18th November 2013. He corroborated
PW-1’s testimony and said that PW-45 had also assured PW-1 of action.
He further stated that he received an e-mail dated 19th November 2013
from PW-45, with an apology from the Respondent attached. PW-11
has produced the e-mails and identified his signature. The Section 65-B
certificate of the IEA was produced later, and the e-mails were
admitted in evidence.
23. PW-12 also corroborated PW-1’s testimony. He confirmed her
role at the THiNK Fest. He deposed that at 12:30 a.m. on the
intervening night of the 07th and 08th November, PW-1 came to their
room in distress. He corroborated her narration regarding the sexual
assault by the Respondent. He also affirmed that she informed them
about receiving a text message with the words ‘finger tips’. He further
deposed that PW-11 informed him about the second incident. PW-1 had
gone to their room at 02:30 a.m. and narrated the second incident as
well. They discussed how they should proceed. He further deposed that
he was CC’d on PW-1’s e-mail to PW-45 regarding her complaint of
sexual assault, the request for an apology, and the committee as per
Visakha guidelines. He further deposed that PW-45 told him and others
that there was no need for an inquiry, as the Respondent was not
contesting PW-1’s account. Later, he also received an e-mail addressed
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to the whole office, including an acknowledgment by the Respondent of
the incident and his decision to recuse himself as editor of Tehelka for 6
months. He also placed on record the e-mail communications CC’d to
him. These were later exhibited on production of a Section 65B of the
IEA certificate. PW-12 was cross-examined carefully. There were
suggestions regarding PW-1’s conduct and her relationship with others.
He was also shown CCTV footage of the event, post the incidents, to
suggest that her composure was normal and that she was enjoying the
event. There is no contradiction in PW-12’s cross-examination
regarding the narration of the sexual assault.
24. PW-13 also corroborated PW-1’s testimony. He had known PW-1
since 2009. He deposed that he exchanged text messages with PW-1 on
08th November 2013, in which she requested him not to leave without
meeting her. She called him on his phone, requesting him to return to
the hotel. She was crying and distressed. He deposed that PW-1 shared
with him the trauma of the two sexual assaults. She also told him that
she had informed Tiya in that regard.
During cross-examination, he admitted that PW-1 contacted him
on 11th November 2013, inviting him for a drink and to stay with her.
They had dinner that night and left Vagator the next day. He was
questioned about his relationship with PW-1 and PW-1’s relationship
with her other friend, PW-15. Certain suggestions were put to him
regarding PW-1’s liaison with a Russian national. Attempts were made
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to portray PW-1 as a woman of easy virtue by suggesting that, while
intoxicated, PW-1 engaged in flirtatious, sexual, drunken banter with
him. However, the corroborative testimony of PW-15 remained
unshaken.
25. PW-53, the victim’s mother, testified about the incident as
narrated to her by her daughter from Goa on 09th November 2013 itself.
She corroborated that PW-1 had confided in her the details of the
sexual assault and her conversation with Tiya. She also corroborated
that PW-1 had told her about the Respondent sending her messages.
PW-53 confirmed that PW-1 had kept her informed about her
whereabouts after the event. She reiterated that PW-1 had told her
about the apology letter and the announcements made by PW-45 to the
Tehelka staff regarding the Respondent stepping down from his
position as Editor-in-Chief for 6 months. PW-53 also testified that Tiya
had come to her house and inquired about her daughter’s whereabouts.
Tiya wanted to know who their lawyer was and sought information
about PW-1. PW-53 also deposed to having registered an FIR against
Tiya (Exhibit PW-53/672).
She was cross-examined extensively. Suggestions were made to
her regarding her daughter’s loose morals, her relationship with a
Russian person named Danny, her relationship with Nikhil Agarwal
(DW-4), and her own relationship with her ex-husband, etc. She was
also asked about her daughter seeking advice from Advocate Rebecca
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John. Nothing was elicited from her cross-examination. Her testimony
corroborating PW-1’s story remained unshaken.
26. PW-56, G. Vishnu, the victim’s colleague, also corroborated the
testimony of PW-1, PW-11, PW-12 and PW-13. He testified to being
present in the room when PW-1 narrated the sexual assault in the lift.
He also testified that PW-11 informed him about the second assault on
PW-1 by the Respondent. He also corroborated the e-mail
communication from PW-45 regarding the apologies and identified the
e-mails.
He was cross-examined regarding the character and conduct of
PW-1. In response to the suggestion that PW-1 was not indispensable
and could have left after the first sexual assault, he answered in the
affirmative. However, this admission does not in any way contradict
PW-1’s testimony regarding the sexual assault. Hence, this witness’s
testimony can be safely said to corroborate that of PW-1.
27. PW-65, Aman Sethi, the victim’s partner and present husband,
also corroborated PW-1’s narration. He deposed that in the early
morning of 08th November 2013, while he was in Ethiopia, PW-1 called
him and narrated the details of the sexual assault on her. He also
deposed that he received an e-mail from PW-11 assuring him that PW-
11 would support PW-1. He further deposed that PW-1 called him in
tears while sharing details of the second assault on 08th November
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2013. He also affirmed that he was aware of her whereabouts after the
event. He took leave to return to Mumbai, stay with PW-1, and provide
her with emotional and moral support.
During the cross-examination, it was admitted that this witness
and PW-1 were married. Attempts were made to discredit PW-1 and
tarnish her character by enquiring about relationships she had prior to
their marriage. Questions were asked about PW-1’s relationship with a
Russian person named Danny. He was asked whether he consumed
drugs, whether his relationship with PW-1 was sexually monogamous,
and whether PW-1 stayed with Danny at Ashvem, etc. He was also
shown various text messages between him and PW-1 prior to their
marriage, containing private, intimate messages. CCTV footage of PW-1
at the event was shown to him for his opinion as to whether she looked
normal. Despite attempts to portray the victim as an immoral woman,
PW-65’s testimony regarding the sexual assault details narrated by PW-
1 remained consistent. It appears to us that the questions put to this
witness regarding PW-1’s character were intended to embarrass and
humiliate PW-1, as by this time PW-1 and this witness were married. It
appears to us that the questions in the cross-examination not only were
aimed at discrediting PW-1’s version of the sexual assault but also
intended to portray her as an unchaste woman in the eyes of her
husband. This, in our view, was intended to create a chilling effect and
demoralise PW-1 and this witness.
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28. Mr Ponda attempted to discredit PW-1’s account of the
Respondent stopping the lift. He pointed to PW-16’s deposition, that of
the Safety and Security Manager of Grand Hyatt. During crossexamination,
PW-16 explained the lift mechanisms in Block 7. He
stated that the lift doors automatically open on reaching a particular
floor without pressing any button inside, and that they open to the
fullest. Mr Ponda emphasised this statement to argue that it is not
possible to keep the lift doors closed. However, he failed to read the
witness’s further statement that after the doors are fully opened, they
remain open for 4 seconds ‘until a command is given to close the
doors by pressing the close button’.
We compared PW-1’s deposition with PW-16’s statements. She
stated that the lift doors remained shut while he was sexually assaulting
her. As discussed herein-above, she has precisely narrated the assault.
After 5-7 years of the incident, much was made of inconsistencies in her
deposition regarding whether the lift was stationary or moving during
the sexual assault. She repeatedly stated that she thought it was in
motion, but because she was resisting the sexual assault, she could not
recall whether the Respondent had his hand on one button or multiple
buttons on the lift panel. PW-16’s testimony attempted to discredit her
account that the lift doors cannot be kept shut. The defence’s attempt is
rendered ineffective, since PW-16 admitted in his cross-examination
that the lift doors remain open only for 4 seconds until a command is
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given to close them by pressing the close button. The story of PW-1 is
thus completely believable. Considering the steadfast consistency and
corroboration of PW-1’s testimony, supported by the testimony of PW-
11, PW-12, PW-13, PW-53, PW-56 and PW-65, we believe it possible
that the Respondent, while sexually assaulting the victim, kept the lift
doors closed.
29. PW-44, a lift technician, was examined to explain how the lift
works. He stated in his deposition that if the lift is not used for 3-4
minutes, it goes into sleeping mode to save energy. He further stated
that to use the lift in sleeping mode, the call button outside the lift must
be pressed. This testimony confirms that the lift can remain in sleeping
mode unless someone presses the call button outside.
In cross-examination, he maintained that it takes only 2-3
seconds to open and close the lift doors. He reiterated that, in normal
course, the lift doors remain open for only 4 seconds, but if the close
button is pressed, the doors close faster than the normal time. In crossexamination,
he admitted to a hypothesis put to him that between the
ground and first floor the lift doors will open approximately 7 times and
between the ground and second floor they will open 5 times in 120
seconds. Mr Ponda has made much hue and cry over this statement to
demolish PW-1’s testimony that the Respondent kept the lift doors
closed. However, he failed to consider that it was very much possible
for the Respondent to keep his finger on the close button to ensure that
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the lift remained open on any given floor only for 4 seconds.
Considering the testimony of PW-1, PW-11, PW-12, PW-13, PW- 53,
PW-56 and PW-65, it is evident that the Respondent maneuvered the
lift to ensure the doors were shut during the sexual assault.
30. It is now a settled principle of law that a conviction can be
founded on the sole testimony of the victim, unless there are
compelling reasons to seek corroboration. It is equally settled that
corroboration, as a condition for judicial reliance on the victim's
testimony, is not a requirement of law but a matter of prudence in the
given circumstances (Refer Gurmit Singh (supra at pg. 19); State of
Himachal Pradesh v. Asha Ram43; Rajinder alias Raju (supra
at pg. 19). We bear in mind that a case of sexual assault must be proved
beyond reasonable doubt, as in any other case, and there is no
presumption that the victim will always tell the entire truth. However,
the standard of proof expected in such cases must take into account
that such crimes are generally committed on the sly, and that direct
evidence from a person other than the victim is very rarely available. 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. As
many as 7 witnesses have corroborated her narration. We have no
hesitation in believing her testimony.
43 (2005) 13 SCC 766
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D. On CCTV footage: -
31. Apart from the aforesaid witnesses corroborating PW-1’s
testimony, there is direct corroboration of the narration in the form of
CCTV footage. The IO (PW-70) has deposed regarding the CCTV
footage collected from the hard disk, which contains the backup of
CCTV footage of Guest House 3 and 7 (Exhibit P-3). At this juncture,
it is important to record that repeated requests were made by the
defence for providing electronic evidence from the muddemal of the
Court. It is pertinent to note that during the trial itself, and by order
dated 16th January 2015, passed by the Supreme Court in SLP (Crl.) No.
66 of 2015, the prosecution was directed to provide all relevant
documents, including unedited CCTV footage, to the Respondent
within 3 weeks from the date of the order. The trial was to be adjourned
till such time the required documents and CCTV footage were not given
to the Respondent. This Order was followed by an Order dated 12th
October 2015, passed by the Supreme Court. The mobile phone was
directed to be cloned by the FSL and given to the defence. The evidence
that was not attached by the IO was not required to be furnished. The
defence claimed not to have the electronic evidence with them, as
counsels representing the Respondent in the Trial Court had passed
away. This Court, through its IT Department, made copies of the
electronic evidence as required by the defence and furnished the same
to the Respondent.
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32. The CCTV footage was shown in court. Upon detailed review for
the relevant date and time, it was observed that PW-1, the Respondent,
was seen with Mr. De Niro in the lift in Block 7, ascending to the second
floor. Later, both PW-1 and the Respondent are seen descending to the
ground floor in the lift and leaving the lobby. A few minutes later, the
Respondent is seen pulling PW-1’s hand and entering the lift, which is
not covered by the hotel's CCTV. They appear to enter on the ground
floor and exit after a few minutes on the second floor. The Respondent
is seen on the landing, with PW-1 following. She adjusts her dress and
the waistline of her underwear. Both then take the stairs to the ground
floor. PW-1 is seen tying her hair as she exits the lobby on the ground
floor.
33. Admittedly, the sexual assault is alleged to have occurred inside
the lift. There is no CCTV camera inside the lift. The presence of PW-1
and the Respondent at the spot of the incident is established. They both
entered the lift on the ground floor and, after a few minutes, exited on
the second floor. They descended by the stairs. The act took place
within the four walls of the lift. In the case of Trimukh Maroti
Kirkan v. State of Maharashtra44, the Supreme Court held that if
an offence takes place inside the privacy of a house, where the
assailants have all the opportunity to plan and commit the offence at
the time and in circumstances of their choice, it will be extremely
44 (2006) 10 SCC 681
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difficult for the prosecution to lead evidence to establish the guilt of the
accused if the strict principle of circumstantial evidence is insisted
upon by the Courts. 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. The law
does not enjoin a duty on the prosecution to lead evidence of such
character that is almost impossible to lead, or at any rate extremely
difficult to lead. The duty on the prosecution is to lead such evidence as
it can lead, having regard to the facts and circumstances of the case. In
rape cases, there is usually no eyewitness. In the present case, the
victim’s statement is reliable and consistent. Her story is also
corroborated by witnesses. The evidence in the form of CCTV footage is
significant to the extent that it places the victim and the Respondent at
the spot of the incident on the date and time testified by her.
34. In the case of Chandraprakash Kewalchand Jain (supra at
pg. 19), the Supreme Court held that insisting on corroboration, except
in the rarest of rare cases, equates a woman who is a victim of lust by
another with an accomplice to a crime and thereby insults womanhood.
It would be adding insult to injury to tell a woman that her story of woe
will not be believed unless it is corroborated in material particulars, as
in the case of an accomplice to a crime.
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E. Omission to collect electronic evidence, material to the
defence case: -
35. Mr Ponda argued that the IO failed to seize the CCTV footage
from the first floor of Block 7. He referred to the Respondent’s Section
313 statement, which recorded that PW-1 and the Respondent
mistakenly exited the lift on the first floor, walked the entire corridor to
what they believed was Mr De Niro’s suite, realised they were in the
wrong place, and walked back to the lift to go to the second floor. He
submitted that, because the IO had not seized the first-floor CCTV
footage, the defence was hindered in proving its case.
The law is very clear in this regard. The defence appears to be in
the nature of a plea of alibi. The plea of alibi is admissible under
Section 11 of the IEA. It is settled law that the burden lies on the
accused to prove the case of alibi. In Pappu Tiwari (supra at pg. 20),
the Supreme Court, relying upon its earlier decision in the case of
Jitender Kumar (supra at pg. 20), held that the burden of
establishing the plea of alibi lay upon the person claiming to have an
alibi. The plea of alibi, in fact, is required to be proved with certainty so
as to completely exclude the possibility of the presence of the accused
at the place of occurrence. In Vijay Pal (supra at pg. 20), the Supreme
Court held that when a plea of alibi is taken by an accused, the burden
is upon him to establish the same by positive evidence after the onus as
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regards presence on the spot is established by the prosecution. Mr
Ponda argued that immediately on learning about PW-1’s allegations of
sexual assault in the lift, the Respondent, a resident of Delhi, issued a
press release calling upon the police to seize all electronic evidence
from the hotel. Emphasizing this press release, Mr Ponda submitted
that despite the Respondent’s public demands, the CCTV footage of the
first floor was not seized. Placing reliance on the decision of the
Supreme Court in the matter of A.K.Gaba (supra at pg. 22) and
Tomaso Bruno (supra at pg. 22), Mr Ponda argued that being in
possession of the best evidence, the prosecution ought to have
produced the same. In the Gaba case, the prosecution was relying on a
tape-recorded conversation of a demand for a bribe made by the
accused in that case. In the facts of the present case, the prosecution
case is consistent from the beginning that the Respondent and PW-1
entered the lift on the ground floor and exited on the second floor after
a few minutes. The sexual assault happened during this period. They
descended by the staircase. The IO therefore seized the CCTV footage of
the ground and second floor, in consonance with the victim's
statement.
We have examined the record in detail. There is nothing on
record to indicate any efforts made by the Respondent to seek any
orders from the trial Court or this Court regarding the first-floor CCTV
footage. In fact, the defence had sought copies of electronic and other
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evidence in possession of the prosecution from the Supreme Court. The
prosecution made available all electronic and other evidence to the
defence, including cloning of PW-1’s mobile phone. In any case, even if
the Respondent’s story that they mistakenly exited the lift on the first
floor and went again to the second floor to give some message to Mr De
Niro is presumed to be true, there is no explanation as to why, upon
exiting the lift on the second floor, they straightaway descended by the
staircase without even attempting to go to Mr De Niro’s suite.
Moreover, the Respondent has not laid a proper foundation in respect
of this defence. A stray suggestion was made to PW-1 that she tried to
distract the Respondent by fiddling provocatively with her dress;
however, she remained unyielding in her testimony and clearly denied
the suggestion. Nothing was elicited from her cross-examination.
36. The testimony of all the above witnesses clearly demonstrates
that PW-1 has withstood rigorous and invasive cross-examination. She
has faced a strenuous and lengthy cross-examination and has left no
room for doubt as to the factum of the occurrence as well as its
sequence. Her version has a direct correlation with the supporting
material and consistently matches the version of every other witness. In
our view, PW-1’s version qualifies the test of high quality and calibre,
and thus we can safely hold that the testimony of PW-1 is sterling. We
thus have no hesitation in accepting her testimony on the core
spectrum of the offence, even without any corroboration. There is no
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compelling reason that necessitates looking for corroboration of her
statement. Her testimony thus inspires confidence and is found to be
reliable.
F. On apologies
37. PW-1 deposed that on 18th November 2013, she sent a complaint
via e-mail to PW-45 (Exhibit 733(1)). The e-mail had an attachment
titled ‘testimony’. She narrated the incidents to PW-45 and required
Tehelka to constitute an Anti-Sexual Harassment Cell as per the
Visakha Guidelines to investigate her complaint. She also required a
written apology from the Respondent and an acknowledgement to be
circulated through the organisations. The attachment to the e-mail
narrated graphic details of the sexual assault. Mr Ponda argued that in
this attachment, PW-1 has referred to the assault as an ‘attempt’ to
rape. Hence, he argued that there was no charge of rape at the
inception. We have examined all the communications between the
stakeholders, including PW-1, PW-45, PW-11, PW-12, PW-56, and the
Respondent. Following the complaint, the Respondent sent an e-mail
dated 19th November 2013 at 12.53 p.m. (Exhibit 733(2)). PW-45 is
copied on the same. The Respondent has unequivocally and
unconditionally apologised for the shameful lapse of judgment that led
him to attempt a sexual liaison with the victim on two occasions, i.e. on
7th and 8th November 2013, despite her clear reluctance. He also
acknowledged having said that being her Boss makes it simpler.
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Exhibit 733(3) is a personal e-mail sent by the Respondent to PW-1
alone. This e-mail is dated 19th November 2013 at 12.50 p.m., i.e. only
three minutes prior to the previous e-mail. In this e-mail, addressing
the victim personally, he apologised for the immense distress caused to
her by his lapse of judgment. He acknowledged that the encounter took
place but that he had no idea that the same was non-consensual until
his daughter conveyed PW-1’s feelings to him. The Respondent also
wrote that he had been totally irresponsible and foolish to have
anything furtive to do with his daughter’s intimate friend. The
Respondent also admitted that he read PW-1’s feelings all wrong and
did not dispute the incident. Lastly, the Respondent asked for her
forgiveness and offered to apologise to her mother and partner as well.
Prior to this e-mail, PW-1 had also addressed an e-mail to PW-45
copying PW-11, PW-12 and PW-56 on 19th November 2013 at 10.43 a.m.
(Exhibit 733(4)). In this e-mail, PW-1 has reiterated her complaint to
PW-45 and has sought the Respondent’s apology. She clearly stated
that this was not a personal issue but a gross violation between the
Editor-in-Chief and his employee. She made it clear that Tehelka as an
institution must acknowledge the Respondent’s violation of trust. She
also required an acknowledgment of the Respondent having violated
her and that his behaviour constituted sexual harassment and sexual
molestation. She once again sought an inquiry by constituting an Anti-
Sexual Harassment Cell in Tehelka. Following the personal apology e-
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mail, PW-1 via her e-mail dated 20th November 2013, at 10.22 a.m.
(Exhibit 733(5)) in strong words reproached the Respondent’s
attempt to undermine the sexual assault incident. She contradicted his
statement that, having said the words ‘this makes it easier to keep your
job’, he immediately retracted the same. She also reminded him that
he had unfairly lashed out at her verbally for sharing the sexual assault
incidents with his daughter. Finally, PW-1 called out the Respondent’s
desire to apologise to her partner as a demonstration of his own
patriarchal notion that men own and possess female bodies, and that
since the Respondent violated what he recognised as his ‘property’ in
some way he found himself accountable to Aman (PW-65).
Thereafter, PW-45, by her e-mail dated 20th November 2013, sent at
4.27 p.m. (Exhibit 733(7)) to the entire Tehelka staff, forwarded the
Respondent’s e-mail to her admitting and apologising for his
misconduct to PW-1. She also conveyed that the Respondent was
stepping down as Editor-in-Chief for six months, in consonance with
the collective values of Tehelka. There are other e-mails as well.
38. Mr Ponda downplayed the apology e-mails, claiming they were a
response to demands in PW-1’s e-mail. He also alleged that PW-45 and
PW-36, the Respondent’s sister Neena, pressured him to issue the
apologies, promising it would resolve the matter. Mr Ponda refers to
these e-mails as extrajudicial confessions, asserting they were made
under duress. After reviewing the e-mails' sequence and content, we
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find no evidence beyond Mr Ponda’s claim to suggest that the apologies
were coerced. PW-1 remained firm despite suggestions that she had
pressured the Respondent through PW-45 into apologising. The emails
clearly admit that the Respondent acknowledged the sexual
assault on PW-1, albeit calling it a "sexual liaison”. His explanation that
these encounters were nonsensual and taken lightly is unconvincing.
His primary defence is outright denial, which he affirmed repeatedly
despite being asked whether he claimed consent. As Editor-in-Chief of
Tehelka, the Respondent was a powerful figure. He claims he never met
PW-1 before she joined Tehelka and considers her just one of many
staff members handling minor tasks. Yet he issued two e-mails
admitting guilt and offering apologies, which is inconsistent with his
denial. The personal apology depicts PW-1 negatively, describing her as
flirtatious and sexually provocative, and he describes their interactions
as secretive. If he truly sent the e-mail solely under pressure, why did
he also send a formal apology to her, with a copy to PW-45, and then
step down as Editor-in-Chief for six months? Moreover, PW-45
circulated the apology widely among Tehelka staff. If the Respondents’
claim of complete denial is true, it isn't believable that he would be
pressured by his sister and PW-45 to issue such apologies for
something he claims never happened. No person of reasonable
prudence would apologise falsely for such an incident, especially
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someone like him. Therefore, Mr Ponda's argument is entirely
unconvincing.
39. Interestingly, PW-45, although a prosecution witness and
Tehelka’s Managing Editor, admitted in her testimony that when she
confronted the Respondent about PW-1’s complaint, he told her that
PW-1 was lying and that the incident was consensual. Even in her 164
statement (Exhibit 652) before the Magistrate, PW-45 stated that the
Respondent had told her that the encounter was consensual and that he
had transgressed by having a sexual encounter with a junior colleague.
This shows that even PW-45 believed PW-1 and was certain that the
Respondent had transgressed. PW-45 further stated that the
Respondent told her that he had misread the situation but was ready to
apologise. Later, in cross-examination, PW-45 attempted to alter her
deposition and said that she wanted to protect the dignity of Tehelka.
In the face of PW-45’s testimony, Mr Ponda’s argument that the
Respondent apologised under pressure falls flat. It is pertinent to note
that Mr Ponda’s argument that the e-mails cannot be used as
disclosures under Section 27 of the IEA is not relevant, as neither side
had treated the e-mails as such.
40. Thus, the Respondent’s story that the incidents never took place
cannot be believed. He admits to an encounter. The term ‘encounter’
itself reflects the incidents. Moreover, the e-mail was sent from the
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Respondent’s personal mobile device, ruling out tampering. All the
material on record thus establishes that the incidents took place; there
was a sexual encounter between the Respondent and PW-1; PW-1 has
alleged that it was a sexual assault without her consent. The proviso to
Explanation 2 of Section 375 of the IPC, makes it clear that a woman
who does not physically resist to the act of penetration, shall not by the
reason only of that fact, be regarded as consenting to sexual activity.
Section 114A of the IEA also provides that when there is a question as
to whether the sexual intercourse where the offence punishable under
Section 376(2)(f) and (k), was with the consent of the woman alleged t0
have been raped and such woman states in her evidence before the
Court that she did not consent, the Court shall presume that she did not
consent. In any case, the defence case is not that of consent. The
defence case is of absolute denial. Thus, we have no hesitation in
accepting the testimony of PW-1 as one that inspires confidence in the
Court.
G. In connection with allegations of extortion by PW-1
41. This point is closely connected to the aforesaid e-mails. The email
dated 19th November 2013 sent by PW.1 to PW-45 requiring four
actions on the part of the Respondent/Tehelka is being interpreted as
extortion. To buttress the extortion claim, Mr Ponda has referred to
PW-1’s statements in her cross-examination to argue that she did not
want to go to the Police as she wanted to extort money from the
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Tehelka group. He pointed to text messages exchanged between PW-1
and her friends and her stepmother. Mr. Ponda indicated that from
18th November 2013 onwards, her complaint was pursued as a
negotiation with Tehelka as she demanded a severance package. PW-1
was confronted with text messages exchanged with her friends where
she has discussed a severance package from Tehelka. Her stepmother
also advised her not to accept an apology in a hurry, under pressure,
but to get the maximum out of them, meaning Tehelka. PW-1 admitted
that one of the text messages was between her and her friend/lawyer,
Ms Rebecca John, who had advised her to ask for three months’ pay as
a severance package. PW-1 also sought legal opinion from her lawyer
friend Ria about how much settlement she deserves. Some friends
advised her to ask for a maximum settlement.
We have examined all the text messages shown to us by the
defence. Mr Ponda selectively read these messages out of context.
However, when we read the entire trail of text messages, as reproduced
during her cross-examination, it is quite clear that the conversations
between PW-1 and her friends took place in the course of her friends
sympathizing with her for having suffered sexual assault at the hands of
the Respondent. They were aware that she was compelled to resign.
The financial condition of PW-1 was not very sound. In this context, her
friends, stepmother, and lawyer advised her to claim a severance
package from Tehelka. We see no knavery in PW-1’s claim of a
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severance package. The text messages only demonstrate her friends’
care and concern for her. The messages indicate their attempt to
encourage her to fight for her rightful claim. In reply to the suggestions
put to the witness that she only wanted to extort money from Tehelka
management, PW-1 remained firm in her deposition, and the defence
was unable to elicit any contradictions in her testimony.
Admittedly, PW-1 lost her job and source of income due to the
Respondent’s misconduct and sexual harassment. She had every right
to demand a severance package and compensation. This cannot be
construed as an intent to extort merely because she indicated her
unwillingness to prosecute the Respondent. In fact, as Mr Mehta has
taken pains to point out, the victim had no motive to malign or defame
the Respondent. Her only intention, as seen from the material on
record, was to ensure that Tehelka establishes an ICC as per the
Visakha Guidelines and inquire into the Respondent’s behaviour. We
are of the view that she is well within her rights to claim compensation
and a severance package from Tehelka, and the same cannot be
construed as an intent to extort.
Mr Ponda also relied on the text messages exchanged by the
victim with her friend Harsimran Gill (PW-15). He particularly pointed
to the message trail dated 4th November 2013 between them. There is a
comment from PW-1 that reads, ‘the reign of sexual terror is about to
be unleashed on unsuspecting thinkers.’ Mr Ponda has selectively taken
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this sentence out of context to suggest that the victim intended to
implicate Tehelka management, i.e., the organizers of the THiNK Fest,
in cases relating to sexual assault. However, a reading of the entire
message trail demonstrates a light-hearted chat between PW-1 and PW-
15. Admittedly, the chats contain sexual innuendos. However, these
chats must be understood in context. It appears that the victim and
PW-15 were planning to enjoy the event. PW-1 refers to ‘bringing home
fresh meat every day’, which, in context, refers to exploring intimate
relations with new people. This appears to be light-hearted banter
between PW-1 and PW-15. She appears to be looking forward to
creating space for herself in her chosen profession by making a good
impression on important people during the fest. It is in this context that
the sentence, ‘reign of sexual terror’, is quoted. The banter clearly
cannot be interpreted to mean that the victim intended to falsely
implicate the Respondent or others in sexual harassment cases. In fact,
the victim had no reason to foresee the Respondent’s deplorable
conduct and hence she could not have pre-planned with PW-15 to
implicate him in a false criminal case. Despite invasive crossexamination,
PW-1 did not falter and remained steadfast in her
deposition. Thus, Mr Ponda’s description of the victim as an
extortionist completely fails.
H. On the victim’s behaviour in the lead-up to and aftermath
of the incidents and trauma.
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42. Mr Ponda attempted to portray the victim as a woman of loose
morals and character. As mentioned above, during the crossexamination,
the victim was shamed, and her personal life, including
her text messages, e-mails, and photographs from the past few years,
was laid bare in public view. She was confronted with text messages
exchanged between her and her intimate friends to humiliate and lower
her dignity in the Court. Admittedly, the victim appears to be a freespirited
woman with little inhibition while interacting with her close
friends. She also appears to have had several relationships in the past.
Her way of life was magnified to declare her a promiscuous woman and
a libertine.
43. It is well settled law that even if a victim is accused of immoral
character, it does not give the accused any right to rape her. In State
of Maharashtra and Anr. v. Madhukar Narayan Mardikar45,
the Supreme Court held that even a woman of so-called easy virtue is
entitled to privacy, and no person can violate her. 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. Even in
cases where there may be some material showing that a victim was
habitually engaged in sexual intercourse, no inference can be drawn
that a woman alleged to be of loose moral character can be raped by a
person for that reason. Every woman has a right to refuse to submit
45 (1991) 1 SCC 57
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herself to sexual intercourse with anyone. The credibility and
trustworthiness of a victim’s version are the decisive factors in
adjudging the culpability of the accused, not her disposition. In view of
the settled legal position, the text messages exchanged by PW-1 with
her friends cannot be relied upon to depict the victim as a woman of
loose moral character, open to sexual assault.
44. Mr Ponda said there is ample material to demolish the victim’s
story of ‘trauma’. He drew our attention to various photographs taken
at the THiNK Fest, post the incidents. The photograph at Exhibit 792
purportedly shows the victim with a glass of wine at the party. Another
photograph at Exhibit 389 shows the victim posing with Mr De Nero
and the Respondent, post the incident. During her cross-examination,
she was confronted with photographs showing her at the beach with a
man alleged to be a Russian National called Danny. Although she
denied having any sexual liaison with Danny, several text messages
were shown to her to allege that she stayed with him on 10th November
2013 at Ashvem. She was also confronted with her phone location at
Morjim post THiNK Fest. From the various chats with her friends, Mr
Ponda wants us to note that, from the conduct and behaviour of PW-1
post the incident, she was not under any trauma. Her story is that she
stayed back in Goa after the THiNK Fest to process her trauma and
decide upon the future course of action. During this period, Mr Ponda
pointed to material on record indicating that she spent a night at Hotel
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Casa Paradiso at Panaji with her friend Aastha and Harsimran (PW-
15). PW-26, the receptionist of the hotel, stated that she did not see the
victim spending the night in the hotel. PW-15 was also grilled with
questions regarding the victim’s whereabouts post THiNK Fest. There
is material on record to show that the victim returned to Mumbai with
PW-15 on 15-16th November 2013 from Goa. Her photographs with
another male on a beach are shown to us with the argument that the
victim does not appear to be under any trauma. Mr Ponda thus
contended that even the post-incident conduct of the victim does not
remotely suggest that she suffered trauma on account of the sexual
assault by the Respondent. We are unable to accept Mr Ponda’s
argument that the past relationships of the victim and her conduct and
actions post the incident demonstrate that she was not under any
trauma, in turn, ruling out her allegations of sexual assault by the
Respondent.
I. Regarding the ‘Perfect Victim’ construct:
45. The Trial Court proceeded on a notion that a victim of sexual assault must behave in a stereotypical manner. The PW-1 was to be a perfect victim and only then could the Courts believe her story of woe. The ‘perfect victim’ concept, more formally known as an ‘ideal victim’, describes 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. When a survivor does not fit in this mould – such as delaying a report, knowing the attacker or being under the influence of alcohol- their trauma is normally devalued. 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.
46. The victim in the present case is a young, educated journalist.
She is accomplished in her chosen profession and financially
independent. Neither the Court nor the Respondent can decide how she
should react or process her trauma. We believe in her plight as a victim
who has suffered sexual assault by her superior, whom she has known
for many years as her father’s friend, her employer, her mentor, and
her friend’s father. She has suffered the uncertainty of losing her job on
account of the Respondent’s misconduct. Questions were raised about
her reasons for delaying a complaint and about her exploring other job
opportunities. Questions were asked of her friends, who were examined
as witnesses as to whether she was indispensable at THiNK Fest. Her
story was challenged on the ground that she continued her duties at
THiNK Fest and, in fact, may even have danced in the club and had a
glass of wine. Merely because the victim continued to remain at the
THiNK Fest venue post the incident does not take away her sexual
assault trauma. Many persons deal with trauma in different ways. To
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doubt her credibility on the basis of her refusing to abandon THiNK
Fest and lose an opportunity to chaperone the Hollywood star Mr De
Niro would be a great injustice to the victim, in the face of other
material corroborating her story. She need not have abandoned her job,
suffered ignominy, or faced isolation on account of the Respondent’s
wrongdoings. We are thus unable to align with Mr Ponda’s arguments
that the victim’s prior and post-incident conduct demolishes her story
of being sexually assaulted.
J. Exercising control and dominance over the victim: -
47. Admittedly, the Respondent was the victim’s employer, mentor,
her father’s friend and the father of her close friend. He held a position
of dominance, control, trust and authority over her. For this abuse of
authority, he was charged under the specific aggravated categories of
Sections 376 (2)(f) and (k) of the IPC.
48. PW-1 deposed that the sexual assault completely broke her. She
understood that her friendship with Tiya, Shoma and the Tehelka
organisation itself was destroyed because of the Respondent’s actions.
Her job was on the line. She was aware that all her hard work at
Tehelka would be wasted if she decided to prosecute the Respondent.
She also deposed that she could not afford to lose her job and was
scared that the Respondent would use his position as her boss to
summon her anywhere he wanted. She shared her ordeal with close
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friends and wanted to convey that she wanted to make a complaint, but
she knew that, because of his incredible wealth, connections and power,
he could destroy her and her career if she were to complain. This is also
borne out by the fact that the Respondent was furious with her for
sharing the incidents with Tiya. She reiterated in her testimony that she
was aware of the incredible power the Respondent would use against
her, the character assassination and slander that would follow, and it
turned out to be correct, as it became virtually impossible for her to
find work again because the Respondent and his family humiliated her
and lied about her consistently in professional and social circles. She
also reiterated that during her stay in Goa, post the event, she thought
through her options, spoke with friends, but decided not to prosecute
the Respondent, as she was acutely aware that the Respondent would
destroy her life and career. Eventually, she decided to complain to the
organisation, as she felt unable to face herself, as she, as a journalist,
urged other women to call out sexual assault.
An attempt was made to discredit her testimony; however, PW-1
remained firm in her story, and nothing was elicited in her crossexamination.
49. PW-15 also corroborated her testimony and stated that after the
incidents, she was in shock and trying to come to terms with them. She
was afraid of losing her job. Even during his cross-examination, he
maintained that PW-1 was worried that if she left the event, the
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Respondent would use it as an excuse to terminate her services. Hence,
she continued to perform her duties and pretended as if everything was
alright. PW-53, the victim’s mother, also corroborated that the victim
was scared of the Respondent, as he was very powerful and politically
connected. PW-56 also deposed that the victim told him and other
friends that she was reluctant to go to the police because she knew that
the Respondent was very influential and a powerful man, and that she
would lose her job and suffer consequences. He too remained firm in
his testimony and could not be contradicted during his crossexamination.
This shows that the Respondent, in his position as an
employer, had control and dominance over her. The charge of 376(2)(f)
and (k) was correctly framed against him.
K. On the defence evidence: -
50. The defence examined four witnesses. DW-1 claimed to have
known the victim for a year. This witness stated that Tiya had contacted
her in 2018 and asked for her phone to take printouts of text messages
of PW-1. She produced some WhatsApp chats of a group called ‘Woof,
Wag and Wiggle’. The conversation in the group was sexually loaded.
She stated that PW-1 texted her that in the early morning of 09th
November 2013, PW-1 claimed to have been intimate with Mr De Niro.
Similarly, DW-4, Nikhil Agarwal, claiming to have been intimate with
PW-1 in 2012, also testified that the victim told him that she flirted
with’ TT ’, meaning the Respondent. This witness has tried to lower the
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reputation of the victim by narrating some instances of her behaviour.
He also stated that he met her while she was exiting Block 7. He also
testified that the victim appeared to be normal post the alleged
incident.
51. It is pertinent to note that the evidence of DW-1 and DW-4 was
never suggested to PW-1 during her cross-examination. Suggestions
were only made to the extent of her relationship with DW-1 and DW-4.
She was asked whether she had heard of the phrase ‘Woof, Wag and
Wiggle’. However, she was never confronted with the chats produced by
DW-1. She never had the opportunity to comment on their testimony.
Both claimed to have known her for only one year. DW-4 claimed to
have been in an unsuccessful relationship with her and is therefore an
interested witness. In any case, the chats with DW-1, however sexually
loaded, do not aid in demolishing the victim’s case against the
Respondent.
52. The Respondent, in his Section 313 CrPC statement, has
completely denied the assault. He has claimed that he did not know the
victim before she was employed at Tehelka. In answer to Question 29,
the Respondent said that they mistakenly exited the lift on the first
floor and walked all the way to what they thought was Mr De Niro’s
suite, and, realising the error, went up to the second floor in the lift.
However, the Respondent failed to explain why, intending to go to Mr
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De Niro’s suite, they did not go there and instead returned directly to
the ground floor via the staircase. In answer to Question 40, the
Respondent has admitted to having sent the message ‘finger tips’.
However, he failed to provide any context.
53. The testimony of the victim, in our view, is quite natural, inspires
confidence and merits acceptance. Insofar as the present case is
concerned, the circumstances referred to and pointed out by Mr Ponda
are neither sufficient nor do they justify discarding the evidence of the
victim. There is nothing on record that creates any doubt/ disbelief or a
suspicion about the evidence of the victim.
IV. FINDING OF THE TRIAL COURT
54. We have carefully perused the impugned Judgment and Order
passed by the Trial Court, acquitting the Respondent. The Trial Court’s
findings are directly contrary to the evidence on record and thus per se
perverse. The Trial Court’s evaluation of the victim’s testimony and
evidence exhibits multiple fatal flaws, largely stemming from
preconceived notions and reliance on irrelevant or inadmissible
material. Furthermore, the Court misconstrued the disclosures made
to her colleagues (PW-11, PW-12, PW-56) and mother (PW-53) as
suspect or failing to corroborate rape, completely ignoring that she
confided in close friends and family without intending them to be
formal disclosure statements. The Trial Court similarly misread her
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inability to open a seven-year-old e-mail account on court hardware
after surrendering her phone to the police as a sign of
untrustworthiness, and drew unfounded negative inferences regarding
her lack of visible physical injuries, her physical response, or her failure
to lower her chin to avoid being forcibly kissed or to scratch her
attacker. In doing so, the Court relied on stereotypical assumptions
about how an "ideal" victim should physically resist or emotionally
react, going so far as to hold her smiling demeanour during subsequent
work events against her.
55. The Trial Court has also erred in observing that there was no
whisper of admission of sexual assault or any of its attributes in the
apology e-mails. The apology e-mails, in fact, clearly relate to an
‘encounter’, ‘sexual liaison’ and ‘furtive acts’, in respect of which the
Respondent issued two apologies- one formal and the other personal.
Without any substantive material, the Trial Court has believed the
apologies to be given under pressure. Additionally, the Trial Court
misapplied legal principles and misread key evidence to favour the
defence. It wrongly disregarded the clear admissions of guilt in the
Respondent’s apology e-mails, misclassifying them as unprompted
disclosure statements under Section 27 of the IEA or assuming they
were sent under pressure, while relying on hearsay testimony (PW-36)
and improperly weighing defence witnesses (DW-1, DW-4) over
consistent prosecution witnesses.
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56. Factually, it erred by stating her oral testimony lacked CCTV
support. Most glaringly, the Court permitted an invasive, humiliating
cross-examination into the victim’s past sexual history, moral views,
and personal WhatsApp messages, directly violating statutory
embargoes under the IEA that prohibit questioning a victim’s character
or past relationships. The Trial Court appears to be influenced by
extraneous, inadmissible material and testimony, including graphic
details of the victim's past sexual history, which are prohibited by law,
and used them to censure her character and discredit her evidence.
57. Rather than evaluating the sterling case presented by the
prosecution with the requisite judicial sobriety, the Trial Court resorted
to hyper-technicalities, ignored binding Supreme Court guidelines on
assessing sexual assault evidence, and unjustifiably granted the benefit
of the doubt to the Respondent where none reasonably existed.
58. The Court incorrectly drew adverse inferences from the victim
consulting an NGO and legal counsel, treating it as potential
fabrication, and treated minor discrepancies in her deposition—
recorded five years after the incident—as material contradictions,
rather than applying established Supreme Court precedents, such as
Gurmit Singh (supra at pg. 19), which state that minor omissions do
not invalidate an otherwise reliable prosecution case. The Trial Court
failed to appreciate that the victim, a young professional woman, was
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pitted against the might of the Respondent and his organisation. She
was entitled to seek legal advice before charting the course of action.
Seeking professional help is termed by the Trial Court as a possibility of
doctoring of events or adding of incidents. This finding of the Trial
Court is flawed.
59. The Trial Court has also erred in discrediting the victim’s
testimony on the ground that she evaded answering whether she lifted
her legs at any point; failing to clarify in this regard in the attachment
to the e-mail dated 16th November 2013 sent to PW-11 and in her
statement recorded under Section 161 of the CrPC, thus treating this as
an improvement in her evidence and a material contradiction. The Trial
Court also considered her testimony as unreliable as the victim did not
claim that the Respondent touched her shoulders or any other part of
her body, while stating in her chief-examination that he touched her
mouth while kissing, legs and vagina while disrobing and inserting his
tongue and fingers. The Trial Court also discarded the victim’s
testimony of the Respondent kissing her forcibly and putting his tongue
in her vagina as she did not record this in her summary of recollection.
The Trial Court construed this as an improvement in the statement,
making it unreliable.
60. Considering the aforesaid discussion, we find that the victim has
made truthful statements, and the prosecution has established the case
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against the Respondent beyond every reasonable doubt. The Trial
Court fell in error in acquitting the Respondent of the charges levelled
against him. The appreciation of evidence by the Trial Court is not only
unreasonable but perverse. The conclusions arrived at by the Trial
Court are untenable and, in the established facts and circumstances of
the case, the view expressed by it is not a possible view.
V. CONCLUSION
61. We, accordingly, set aside the Judgment and Order of the Trial
Court and convict the Respondent for offences punishable under
Section 376(2)(f) and (k), 354, 354A, 354B 341 and 342 of the Indian
Penal Code, 1860.
AMIT S. JAMSANDEKAR, J. DR. NEELA GOKHALE, J.
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JUDGMENT CONTINUED
VI. THE SENTENCE
62. We have heard both the learned counsels appearing for the
respective parties on the aspect of sentencing today itself and have
pronounced the sentence at 2.30 p.m.
63. Mr. Ponda, learned Senior Advocate representing the
Respondent, submitted that there are no criminal cases pending
against the Respondent. This is the Respondent’s first offence. He
further submitted that the incident in the present case is of 2013 and
the Appeal is pending since 2022. During this period, the Respondent
is on bail and has not breached any conditions of bail. He is a senior
citizen and his conduct in society is good. The Respondent's passport is
with the authorities, therefore, he has not traveled abroad. Considering
all these factors, Mr. Ponda prayed that minimum sentence be awarded
to the Respondent.
64. Mr. Ponda further submitted that the Respondent intends to
assail the present Judgment and Order before the Supreme Court and
in view thereof the Respondent be given a period of 8 weeks from today
to surrender.
65. We also heard the Respondent in person on sentence. He
submitted that he is a political victim in this case and he has presented
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all the facts. He has two daughters and a wife. He is a senior citizen.
Therefore, he submitted that a lenient approach be taken against him.
66. Mr. Mehta, learned Solicitor General of India, on behalf of the
State, submitted that the Court should factor in that the Respondent
was a parent figure to the victim. The Respondent knew the victim’s
father. The victim was the same age as the Respondent’s daughter.
Further, the Court should also consider the fact that the Respondent
repeated the offence the very next day and thus had no remorse. He
submitted that when a woman says ‘No', it means ‘No’; that should have
been understood by the Respondent, he being of the age of the victim’s
father.
67. We considered the arguments of both the learned Counsels and
the Respondent in person. Sexual harassment at work causes
significant and enduring harm to women’s career paths, punishing
them for factors outside their control. Additionally, a widespread
culture of victim blaming and institutional resistance isolates survivors,
prompting them to switch jobs or accept demotions. An insensitive and
unresponsive work environment often instills fear in women about
venturing out of their homes to pursue meaningful opportunities,
thereby preventing them from fully utilizing their talents and skills.
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The victim in the present matter also suffered similar
consequences. She was compelled to resign. She also suffered
profound embarrassment during trial.
68. We acknowledge the above. However, the incident took place 13
years ago; the Respondent is a Senior Citizen with a family of his wife
and two daughters; there is no report of any misconduct by the
Respondent or an allegation of having committed any offence post the
acquittal order. Both parties must have by now moved on with their
lives. In these circumstances, we pass the following Order :
i. For the offence punishable under Section 376(2)(f) of the IPC,
the Respondent is sentenced to undergo rigorous
imprisonment for a period of ten years and pay a fine of
Rs.5,00,000/- in default of which to suffer simple
imprisonment of three months;
ii. For the offence punishable under Section 376(2)(k) of the
IPC, the Respondent is sentenced to undergo rigorous
imprisonment for a period of ten years and pay a fine of
Rs.5,00,000/- in default of which to suffer simple
imprisonment of three months;
iii. For the offence punishable under Section 354 of the IPC, the
Respondent is sentenced to undergo rigorous imprisonment
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for a period of one year and pay a fine of Rs.10,ooo/- in
default of which to suffer simple imprisonment of one month;
iv. For the offence punishable under Section 354A of the IPC, the
Respondent is sentenced to undergo rigorous imprisonment
for a period of one year.
v. For the offence punishable under Section 354B of the IPC, the
Respondent is sentenced to undergo rigorous imprisonment
for a period of three years and pay a fine of Rs. 10,000/- in
default of which to suffer simple imprisonment of three
months;
vi. For the offence punishable under Section 341 of the IPC the
Respondent is sentenced to pay a fine of Rs.500/- in default
of which to suffer simple imprisonment of seven days;
vii. For the offence punishable under Section 342 of the IPC, the
Respondent is sentenced to pay a fine of Rs.500/- in default
of which to suffer simple imprisonment of seven days;
viii. All the above sentences shall run concurrently;
ix. That the period already undergone by the Respondent in
custody during the trial shall stand set off.
x. Considering the discussion herein above relating to
consequences of having suffered sexual assault, the entire
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amount of fine deposited by the Respondent shall be given to
the victim. The Police Inspector of the CID, CB, North Goa
shall file a compliance report regarding deposit of fine by the
Respondent within a period of three months from today;
xi. Muddemal properties to be disposed of after expiry of the
appeal period, if any, as per the directions of the Sessions
Judge, Mapusa, Goa. Accordingly, the same be returned to
the Trial Court.
xii. Considering the request of the Respondent, he is granted four
weeks’ time to surrender;
xiii. The Respondent has furnished bail bond, which shall
continue till he surrenders or he is arrested.
xiv. Appeal allowed.
AMIT S. JAMSANDEKAR, J. DR. NEELA GOKHALE, J.
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