How Tarun Tejpal was given access to the victim's personal WhatsApp messages to build his defence

Between two courts, the fundamental right of the accused was upheld and the fundamental right of the victim overlooked.

BySmita Nair
How Tarun Tejpal was given access to the victim's personal WhatsApp messages to build his defence
Kartik Kakar
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The Goa fast track court’s verdict, which labelled the testimony of the victim in the Tarunjit Tejpal rape case as not being of “sterling quality”, drew heavily from the victim’s WhatsApp chat records. The court had allowed Tejpal to place those chats as material evidence to shoulder the bulk of his defence, which alluded to the victim’s “propensity to indulge in sexual conversations”, past “flirtatious” encounters, and post-offence conduct.

The chats are part of over two lakh private messages and multiple photographs the victim sent to and received from her family and friends over a period of two years, made available to Tejpal, a rape accused, on August 27, 2018. Some date back to early 2012 while others are from November 22, 2013.

The Supreme Court directed the trial judge to provide the cloned data in 2015, asking the trial court to refer to its own May 3, 2014 order allowing Tejpal access. However, the trial court order of May 3, 2014 confirms that Tejpal himself had only applied for permission to access a mirror image and clone copy of all the data in the prosecutrix’s Samsung Galaxy S2 phone and memory card details for the period between November 7, 2013 and December 31, 2013.

The prosecution argued that the evidence asked was not relevant to the case, but the trial court allowed Tejpal access as it upheld his right to a fair trial under Article 21 of the constitution. Through the period where the courts were making a decision on sharing the victim's phone for cloning and giving access to her personal data, it was always seen only as court property and part of a rape offence chargesheet; its lone identity marked as 5(h), as listed in Tejpal’s rejoinder application, in all court orders. Bunched with 12 other electronic items, it was the victim's fundamental privacy right that got violated.

With this, Tejpal got possession of the victim’s deeply personal messages well beyond what he had officially applied for.

“When an investigating agency rightly or wrongly takes custody of personal information, particularly of a person who is not an accused in the matter, it should act as a responsible and a model data controller,” said advocate Prasanna S, who was part of the team of lawyers in the Aadhaar case that also looked at privacy as a right. “Any access to that has to be strictly with free and informed consent of the person to whom the personal information pertains."

This could be the first instance of a rape accused in an Indian court being allowed to use a victim’s personal messages to impeach and “confront” her credibility to defend his version of no rape, just “banter”.

“This is deeply problematic,” said Mrinal Satish, professor at the National Law School of India University in Bengaluru. “The emphasis of rape law reforms over the years has been to ensure the victim’s credibility is not impeached by alluding to past sexual history into cross-examination. This was one of the first trials to go to court soon after the Justice Verma Committee’s criminal law reforms. The trial process has gone against all those efforts.”

The prosecution case is of the rape of a 27-year-old Tehelka employee “inside the lifts” of Guest Block 7 of a starred hotel in Goa on the nights of November 7 and 8, 2013, on the sidelines of an event called Thinkfest, by Tejpal, her employer, then 50 years old. Tejpal was also her father’s friend and editor-in-chief of the news magazine.

Tejpal was charged and faced trial under IPC sections 376(2)(f) (person in position of authority over women, committing rape), 376(2)k) (rape by person in position of control), 341 (wrongful restraint), 342 (wrongful confinement), 354-B (assault or use of criminal force to woman with intent to disrobe), 354 (assault or criminal force with intent to outrage modesty), and 354-A (sexual harassment).

During the trial, Tejpal denied the victim’s version of rape in entirety, saying nothing happened inside the lifts. Instead, he defended it as a ‘consensual sexual conversation’ outside the hotel lawns as the only ‘consensual act’ – much of this was on the back of chats unrelated to the offence on trial.

In his final statement to the trial court, Tejpal’s sequence of events involved a six-minute sexually-loaded conversation in which the victim narrated her “amorous escapades”, her views on fidelity, and her feelings for him while she was seated in a golf buggy on the lawns outside Block 7 on November 7, 2013.

With the defence arguing that this “drunken banter” outside Block 7 was the only sexual encounter, the scene of offence changed from the lifts, as stated in the chargesheet, to a golf buggy during the trial. Tejpal first referred to the “drunken banter” in a text message he sent the victim on November 9, 2013 after he learnt the victim had confided in his daughter.

The 527-page verdict passed by additional sessions judge Kshama M Joshi underlined the emphasis it placed on these WhatsApp chats. The victim’s conversations with her friends, revolving around life episodes before and after the alleged crime, were interpreted as her admitting to Tejpal’s testimony of “drunken banter” on the night of November 7, 2013.

The verdict stated that the chats “ratified” the defence testimonies that the victim “has a propensity to indulge in sexual conversations with friends and acquaintances”, accepting Tejpal’s plea of “drunken banter” being the only sexual encounter.

Tejpal’s two apology letters (private and formal) to the victim on November 19, 2013, and one titled “Atonement” to Chaudhury, subsequently forwarded to Tehelka staff, was placed as evidence on record by the prosecution. The prosecution pointed to Tejpal’s language – with excerpts like “frivolous and laughing mood when the encounter took place”, “colossal lapse of judgement” and “no idea” that she was “upset” or felt it was “even remotely non consensual” – to argue that this suggested an admission of whatever he did inside the lift “was founded on mutual consent” and “was reciprocal”.

The victim had objected to Tejpal in her reply to the letter, calling the act “imposed”.

Outside court too, Tejpal maintained it as a “consensual” act that had occurred inside the lifts. A cover story in Outlook on April 7, 2014 read: “In these five minutes, according to Tejpal, they had a sexually potent conversation, and that when they returned to take the elevator he presumed there was a consensus between them on what they were about to do. [Emphasis added].”

It was during the framing of charges on September 28, 2017 that Tejpal took his final stance: not a case of consent as no rape happened.

The only other person among the 75 witnesses to identify the golf buggy as the site of the “encounter” was Tejpal’s own sister, Neena Sharma, a prosecution witness who was cross-examined on September 18, 2020. Prosecution witness Shoma Choudhary, cross-examined on September 25, 2020, added to Neena’s version that Tejpal spoke of a sexual conversation he had “outside Block 7” as the lone “fleeting sexual encounter” with the victim.

Accepting Tejpal’s version of the golf buggy as the site of the “sexual encounter” in the verdict, judge Joshi slammed investigation officer Sunita Sawant for a weak, shoddy and incomplete probe, highlighting at least 40 points of omission regarding the material evidence and incomplete reconstruction of the chargesheeted crime scene, the two lifts of Block 7.

The verdict stated that the victim’s version cannot be taken as ‘gospel truth’. The bulk of trust the judge placed on a lone witness, who backed Tejpal’s ‘no rape, only banter’ testimony, was again guided by the private chat history to events unrelated to the crime, all of which was inadmissible.

The trial verdict disregarded all Tejpal’s apologies and prosecution witness testimonials that corroborated the prosecutrix’s version of events. It further gave credence to a lone defence witness, DW4, a friend of Tejpal’s children, who went under oath in February 2021.

DW4 agreed with Tejpal’s claim that it was the victim who “sought out the accused in the party lawns on her own accord”. DW4 says he heard the same “flirtatious” details Tejpal shared in court as “banter”, told to him by the victim on the night of November 7 and afternoon of November 8, 2013. He also said that the victim told him she had “started a flirtatious conversation with the accused”.

The victim’s first email statement to a friend, detailing the assault on the night of the offence, mentioned DW4. She confirmed in her statement that she met DW4 minutes after the alleged offence. She asked him to stand next to her until Tejpal crossed them, saying she was afraid as he had been “inappropriate” with her. She didn’t confide any further details with DW4.

The judge allowed the defence to cross-examine the victim regarding her relationship with DW4 by placing on record a chat history of 4,000 messages between DW4 and the victim in the period from July 22, 2012 to November 8, 2013 on episodes unrelated to the rape case. The judge referred to DW4’s version of events as “corroborative testimony” that “wholly establishes and affirms the defence of the accused that whatever transpired” between Tejpal and the victim on November 7, 2013 was “just drunken banter”.

“DW4 has further deposed that it was a routine affair for the prosecutrix to have sexual conversations with her friends,” the verdict read. "This fact is also ratified and plainly visible through the WhatsApp chats of the prosecutrix with her multiple friends and acquaintances, and are already a matter of case record.”

The judge allowed chats between the victim and her friends before and after the alleged incident occurred to be used against her, adding: “Therefore, the WhatsApp chats of the prosecutrix, and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire because that is what the accused usually chose to speak to her about, unfortunately never her work, proves that the accused and the prosecutrix had a flirtatious conversation on the night of 7/11/13.”

Mrinal Satish pointed out, “The broader problem is the normative principle the judge is laying down on the usage of sexual history and that you can let the defence harass the victim while cross examination. The nature of questions the defence ended up asking is also deeply problematic.”

The judge allowed the defence's interpretation of the Evidence Act: WhatsApp history as evidence not to impeach credibility but only to ‘prove the prosecutrix is lying’.

Years of reform have gone into rape law even as fresh cases continue to pose new questions and challenges in existing criminal procedures. Legal experts told this reporter that this case could set a “dangerous precedent”, say, if not corrected by the high court where an appeal against the verdict has been moved by the state.

In 2003, a correction was made with the Indian Evidence Act, dropping a clause that allowed the accused to show the prosecutrix is immoral. The Justice Verma Commission in 2013 recommended further amendments, ensuring the removal of any sections still left in the Act that gave any room for impeaching credibility on sexual history. This meant that a new section, 53A, was introduced which states that the sexual history of the prosecutrix is not relevant. Section 146 was also modified to state, in simple terms, that cross-examination cannot include any question alluding to past sexual history of the victim with others.

While the judge gave regard to these law points, the verdict still recorded non-permissible evidence, inadmissible in law.

“Such high-profile rape trials get a lot of attention and traction. How a judge developed law depends on how a law point was interpreted on material facts; this goes a long way in development of the law,” said NLS professor Satish. “Jurisprudence efforts since 2013 has been that a rape trial is not a trial of the victim. It’s disappointing to see the judge permitted all these questions even as it's evident that the prosecution objected.”

In one instance, the court allowed a WhatsApp conversation to ratify another piece of electronic evidence, a piece of CCTV footage that was used to allude to a specific post-incident encounter that Tejpal’s defence linked to the victim’s sexual history.

DW1, a defence witness, is a woman who had previously shared a WhatsApp group named “woof, wag & wiggle” with the victim and Tejpal’s daughter before she was removed on November 17, 2013 by the victim, who was then the group’s admin. DW1 was asked questions related to CCTV footage from the second floor of Block 7 on the nights of November 8 and 9, hours after the alleged second assault and the night after the assault, respectively.

DW1 recounted the chat she had with the victim on the morning of November 9, 2013, backed by a “copy of the printouts of the group chats” shown to DW1 by Tejpal’s daughter on the day of the cross-examination on February 16, 2021. DW1’s entire testimony under oath revolved around “intimate and personal and revealing” conversations from the WhatsApp group. Among the questions that the defence made DW1 answer was one about whether it was “not common for girls to fantasise about male celebrities”.

The judge overruled the prosecution’s objection – that DW1 was examined to indulge in “victim blaming/shaming” – as being “misplaced”. The judge also overruled objections that DW1 was being questioned regarding chats that alluded to an incident unconnected to the case, saying DW1 was allowed to answer the defence’s questions to “prove the WhatsApp chat”. The judge then allowed the defence’s evidence of CCTV footage unrelated to the crime under trial to stand, adding that it was “ratified” based on the “detailed set of WhatsApp messages” between the victim and DW1.

At many stages in the trial, judge Joshi said that “anomalies, discrepancies, wild inaccuracies, improvements, omissions, contradictions and sheer impossibilities mark the narrative of the prosecutrix”. The significant role played by the victim’s responses to the private WhatsApp chats to unrelated events in influencing the judge’s verdict, and creating doubts about the prosecutrix being “a truthful and reliable witness”, cannot be ignored.

In both DW1 and DW4’s testimonies, the judge allowed the use of WhatsApp chats as evidence to corroborate the defence’s view of the victim’s character. None of the evidence, however, was related to the rape case itself.

“If one were to sum up the verdict it has focused more on the evidence alluding to past sexual history and post incident behaviour unrelated to the offence,” added Satish.

Inconsistencies in the victim’s testimony were questioned, private WhatsApp chats between the victim and counsels and activists after the offence became public were seen as problematic.

During the victim’s cross-examination, the defence tried to point out some inconsistencies in her account of the events by questioning her repeatedly over specific details and pointing out contradictions with statements previously made by her and material evidence on record.

The judge did not seem to buy her explanation though, stating on at least 14 occasions that the victim had answered a question in an “evasive” manner. Many of the responses that the judge found “evasive” were also on responses to WhatsApp chats by the victim during her cross-examination.

Another line of questioning used by the defence concerned the conversations the victim had with some friends, lawyers and noted feminists before filing her complaint. She was also asked how much she knew about rape laws and if she had discussed the scale of financial compensation involved in such cases.

In her judgement, Joshi mentioned that “with the help of experts, there may be a possibility of doctoring of events or adding of incidents”. A day after the judgement was made public, India’s solicitor general Tushar Mehta took strong objection to this statement in the Bombay High Court, saying that the people the judge was insinuating of doctoring included senior lawyers like Indira Jaising.

The judge's doubt of “improvements” on the victim’s testimony was also partly based on inferences made on the chats accessed by the defence till November 22, 2013, which showed conversations between the victim, lawyers and women’s rights activists when her complaint was already public. The verdict further read, “WhatsApp records show that PW1 [prosecutrix] had already enlisted a battery of friends and networks to release such material on social media the moment the apology reached her.”

“Rape trials are meant to probe material evidence related to the crime. If there is doubt on contradictions in testimony, then a verdict of acquittal or conviction should be passed based only on the material evidence related to the crime,” Satish said. “That would have been correct. Here, the focus has been sexual history with material evidence unrelated to the case being spoken and precious pages wasted only on an aspect prohibited under law.”

The victim’s testimony, and those of three primary witnesses in whom she had confided an hour after the alleged offence, was disregarded. Their statement under oath that Shoma Chaudhary initially declined to constitute an anti-sexual harassment cell in 2013 as Tejpal “did not contest the sexual assault committed by him” was also not taken as binding.

The judge dismissed their testimonies as “false depositions” and added that it was an “implausible fact that the prosecutrix would seek out three male colleagues” to confide in. Instead, she identified DW4 as a “res gestae witness” whose testimony she felt had “more weight”. Her assessment on the quality of witnesses is believed to be backed by the chat records. The 4,000 chats between the victim and DW4 was taken as a good yardstick that “suggest that DW4 may have known her innermost truths and secrets better than anyone else”.

The three male colleagues were assumed to be biased as they were friends with the victim’s husband. One of the three colleagues was interpreted as biased to the victim, again based on a past chat message now part of the verdict.

Between two courts, the fundamental right of the accused was upheld and the fundamental right of the victim overlooked.

The first time Tejpal made an appeal for “mirror images and cloned copies” of the victim’s phone, his defence argued that it came from a deep suspicion he harboured that the victim was being misguided to make false rape allegations.

With Tejpal charged under the expanded definition of IPC Section 375 –which includes as an offence penetration using tongue and fingers – a message “the fingertips”, sent to him by the victim at 12.16 am on November 7, 2013, was seen by the prosecution as evidence of admission.

On February 25, 2014, Tejpal moved his first application asking only for inspection of records produced as evidence, including unedited CCTV footage of Guest Houses 3 and 7 of the starred hotel for dates between November 7 and 10, 2013.

It was in the rejoinder he wrote to the court on March 21, 2014, giving a list of 13 items, that he asked for “mirror images and cloned copies” of five electronic devices, including the victim’s phone. He wanted access to everything - her call records, messages, emails and cell tower locations – from the date of the alleged crime to different dates in November and December 2013.

Tejpal’s rejoinder listed “mirror images” and “clone copy” of five specific items:

  • The entire unedited footage of all three floors, lifts and lobby area of Guest House 3 and House 7 between November 7-29, 2013, as well as a clone copy of the computer hard drive used by the prosecutrix to send her testimonies. This was listed from 5(a) to 5 (f).

  • All the data in the victim’s mobile phone – a Samsung Galaxy S2 with IMEI 358401043484185 – and the phone’s memory card for the period November 7-December 31, 2013. This was listed as 5(h).

  • SMS and WhatsApp messages exchanged by the victim between November 7- 29, 2013. This was listed as 5(j) in addition to the clone of the entire phone.

  • The hard drive and memory card of Tejpal’s computer and mobile phone, listed as 5(o).

Tejpal’s arguments for the phone in the trial court in 2014 was that the investigation officer had only listed SMS and WhatsApp messages that supported the victim’s version. Tejpal suspected messages that favoured his version had been deleted which only cloning could help retrieve, the defence argued.

While the application asked for 13 items, arguments in court centred mainly on the unedited CCTV footage. The prosecution argued that all items asked for were irrelevant as they were not connected to the dates of the crime and “disclosure to the accused will not be essential in the interest of justice”. In asking for cloned copies, Tejpal’s lawyers invoked his right to a fair trial under Article 21 of the constitution and the Universal Declaration of Human Rights.

Finally granting him access, the 45-page order echoed a Supreme Court judgement in VK Sasikala vs State, cited by both the defence and the prosecution. To ensure that the accused did not feel prejudice, the order said that Tejpal should be given copies and inspection of documents appended to the chargesheet and in custody of the court, even if not relied on by the prosecution. Additionally, a clone copy of the CCTV footage was also allowed to save “unnecessary waste of court’s time due to repeated inspection by accused”.

The order finally said Tejpal was entitled to “mirror image of the mobile phone of the prosecutrix exchanging SMS for the aforesaid period, and also of WhatsApp messages only if the prosecution has forwarded the same to the Court and if the same is part of the chargesheet...”

Again, the court had taken the period Tejpal asked for as the “aforesaid period” and asked to refer to the details specified in 5(h) in his rejoinder.

Tejpal had asked for a complete clone of all records for the period between November 7, 2013 and December 31, 2013. Separately, he asked for WhatsApp history between November 7, 2013 and December 29, 2013. The victim’s phone was attached on November 28, 2013 and Tejpal’s on November 30, 2013.

Hyderabad FSL, which had examined the other evidence, was asked to clone all the items. They responded that they had no facility to clone phones.

In 2015, having not received the cloned phone, Tejpal approached the Supreme Court. On January 16, 2015, a bench of Chief Justice HL Dattu and Justice AK Sikri directed the trial judge to “direct the prosecution to provide all relevant documents including unedited CCTV footage etc” to Tejpal, as referred in the trial court’s order on May 3, 2014.

In a clarification to the Supreme Court’s January order, a second bench of Justice Sikri and Justice Rohinton Fali Nariman heard Tejpal again in October 12, 2015 when he said that all the electronic data asked for in his March 2014 rejoinder had been given, except two items, including 5(h). With Hyderabad FSL unable to clone, the apex court directed the trial court to send the phone to another laboratory.

Tejpal was represented by senior advocate Kapil Sibal and 11 others including RN Karanjawala, whom he publicly thanked on the day of the verdict. The State of Goa, prosecuting the case of rape on behalf of the victim, was represented by senior advocate LN Rao and four others. The apex court order, though, showed no legal representation to the prosecutrix’s right to privacy and data.

Experts add that while jurisprudence is building on the rights of the accused, as far as digital data is concerned, this trial saw the fundamental privacy rights of the victim overlooked for the fundamental rights of the accused; with her phone seen as nothing but a mudammal, or evidence lying in court.

“And that is where the problem is...Why did the prosecution not inform the court that an order cannot be passed till she was heard?” asked Prasanna. “Privacy is now accepted as a fundamental right. It’s recognised that there is a privacy interest in personal information and needs to be safeguarded. This omission cannot be held against the prosecutrix.”

He continued, “There has been a grave violation in her personal rights and the accused should not have been allowed to take advantage of that. It was her phone, her data, that was shared. The defence cannot use the state to collect evidence for its purpose, particularly when it violates the rights of the victim.”

For two years since the October 2015 apex court order, first the prosecution, then the trial court itself, continued to write to laboratories across the country asking for cloning facilities.

The phone data became the lone evidence which stalled the trial for two years. All state and central laboratories denied having those facilities. An expert in one laboratory is believed to have even responded that cloning the entire phone was not allowed under international data conventions.

The prosecution and defence were asked to research online and look for private laboratories after all government laboratories across the country failed to help; a few either denied having a technical facility, others said they don't have the expertise. With the trial stalled till the cloning was done, both the prosecution and the defence continued their research and gave details to court, as directed. Several private laboratories were then contacted.

Finally, a Mumbai based laboratory responded to the court’s request and confirmed expertise to clone phone data including WhatsApp messages, with the dump shared with Tejpal by the committal court on August 27, 2018 – months into the victim’s examination in chief with chargesheeted evidence taken on record in 2013. No segregation was done and the full data was shared.

“This has now become a fishing inquiry against her conduct,” said Prasanna, adding that the victim’s fundamental rights of privacy were overlooked for the accused fundamental rights.

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