Bombay High Court In Tarun Tejpal Case

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-à-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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