PANAJI: The Investigating Officer (IO) who probed the rape case against former Tehelka Editor, Tarun Tejpal committed several omissions and the prosecution failed to produce crucial evidence including CCTV footage, the Goa court, which acquitted Tejpal, said in its judgment.
Additional Sessions Judge Kshama Joshi had, on May 21, acquitted Tejpal of sexual assault charges alleged by a female colleague.
However, the judgment copy became available only on May 25.
The Sessions Judge in her verdict, reasoned that the deposition of the prosecutrix showed improvement and material contradictions and also had omissions and change of versions which did not inspire confidence.
The Court opined that there were glaring contradictions in the statements made by the prosecturix and the IO had not questioned the prosecutrix about it.
The Court also noted that there were discrepancies in the evidence submitted by the prosecution, which the defence alleged was deliberate.
“There are many facts which have come on record which create doubt on the truthfulness of the prosecutrix. There is also no medical evidence on record on account of delay in lodgement of F.I.R. and as the prosecutrix had refused to go for medical examination. If the F.I.R. was lodged immediately, then, perhaps, there could have been some swelling in the vagina or presence of saliva of the accused therein,” the court said adding the allegations made by the prosecutrix cannot be said to have been proved beyond reasonable doubt.
• The IO has in some cases, such as the CCTV footage of the first floor of Block 7 of the Grand Hyatt, entirely destroyed the evidence, knowing that it is necessary for the Investigating Officer to gather all the evidence through investigation.
• The Investigating officer has committed and commissions while conducting the investigation in the present case, wherein the IO has done no investigation on crucial and vital aspects of the present case.
• The IO viewed vital CCTV footage of the guest lifts of the first floor of Block 7 of 7/11/2013 on 21.11.2013 (before registration of FIR) and knowing that the said CCTV footage shows the accused and the prosecutrix exiting the lift during the relevant 2 minutes on the first floor on 7/11/2013, and that the same would exonerate the accused, and despite the fact that the DVR containing the CCTV footage could and should have been attached by the IO at the earliest to preserve crucial CCTV footage, the 10 appears to have deliberately delayed seizure of the DVR until the 29.11.2013.
• In the meantime, destroyed the CCTV footage of the first floor of 7/11/2013, thereby destroying clear proof of the Accused’s defence. As the said CCTV footage of the first floor has been destroyed, the DVR produced before the Court, contains no files containing the CCTV footage of the first floor of the guest lifts of Block 7 of 7/11/2013.
• The IO gave directions to other Investigating officers to download the CCTV footage only of the ground and second floor of the guest lifts of 7/11/13 from the DVR of Block 7, and therefore PI Praveen Gawas on 25/11/2013 downloaded only the CCTV footage of ground and second floor and not of the first floor of the guests lifts of 7/11/2013, to destroy all traces of the CCTV footage of the first floor. They never sealed the DVR room in which the DVR containing the said crucial first floor footage was housed.
• The IO did not write in her Case Diary the instructions given by her orally to P.I. Praveen Gawas and PSI Laxi Amonkar during the investigation, in order to remove all traces of instructions to visit Grand Hyatt to tamper and destroy the first floor footage.
• Though the I.O. did not receive the video recordings of the CCTV footage of the first floor of the guest lift in Block 7 of 7/11/13 from the CFSL, no efforts were made to get the same, as she knew it was already destroyed.
• The I.O. did not conduct any investigation to find out why the CFSL did not find any video recordings of the CCTV footage outside the guest lifts of Block 7 of the first floor of 7/11/2013 and 8/11/2013, knowing that it is already destroyed, and there is no specific reason for not doing the same.
• There is no proof produced by the I.O. to show that the attachment of the DVR (containing unedited CCTV footage of Block 7) was informed to the court during investigation.
• The I.O. did not supply a copy of unedited Block 7 to the Accused, due to which CCTV footage of the Accused had to approach the Hon’ble Supreme Court and the Hon’ble Supreme Court directed the prosecution to provide clone copies of the unedited CCTV footage to the Accused, which was not done for two years and a clone copy of the CCTV footage was finally handed over to the accused in 2016.
• The IO claimed that she is not aware of the term “hash value” in relation to electronic evidence.
• The IO also did not find out why PI Praveen Gawas did not generate the hash value of the contents of the DVR at the time of attachment of the DVR on 29/11/2013, though it was done regarding the CCTV footage downloaded from the DVR on 25/11/2013. It is crucial to note that the hash value certifies that the evidence ensures the integrity of the digital evidence and ensures that should there be traces of digital manipulation in the evidence after, the hash value will offer a trail of such manipulation. It is pertinent to note that IO has not overruled the possibility of the contents of the DVR being tampered.
• The IO during the scene of offence panchanama on 28/11/13 did not ask the Prosecutrix to show, which button was pressed by the Accused on the lift panel to keep the lift in circuit during the incident of 07.11.2013.
• This is not mere detail but the heart of the prosecution case, since it is the categorical case of the Prosecutrix that the lift door did not open even once during the two minutes of the alleged incident as the Accused pressed a button on the lift panel to keep it in circuit.
• The IO during the scene of offence panchanama did not verify the operation and function of any of the buttons of the lift panel of Block 7; a glaring and deliberate omission in continuation of the crucial nature of this evidence.
• The IO did not verify during the scene of offence panchanama whether the lift could be kept stationery by pressing a button on the lift panel.
• Till date the IO has not produced any empirical evidence to show that a button on the lift panel can keep the doors closed when the lift is stationary between floors, even though further investigation was conducted by the IO in November and December, 2020.
• Although the IO was assisted by PI Praveen Gawas, PI Sudiksha Naik, LHC Rita, PC Anand Tuenkar, HC Harinam Naik, PSI Laxi Amonkar, DySP Sammy Tavares and PSI Mahindra Bandhari.
• The IO admits that during investigation, verification of the operation and the functions of the lift buttons of the guest lifts of Block 7 during the scene of offence panchanama was not done though the same was important in the present case.
• The IO did not investigate the fact that there is an intercom connected inside the lift which becomes operational in case of emergency.
• The IO has not conducted an investigation to verify the group control system of the lifts in Block 7, to check whether when one lift is occupied and has left the ground floor, does the other lift if idle and unoccupied come immediately to the ground floor and vice versa. This is vital to establishing the programmatic behaviour of the lifts during the incident.
• The I.O. did not seek a formal report in writing from Mitsubishi about the working of the guest lift’s group control system and the emergency buttons pertaining to the guest lifts of Block 7.
• The IO did not attach the technical manual available with Mitsubishi of the guest lifts installed in Block 7 of the Grand Hyatt, though prosecution witnesses claimed it contained details of the function of the emergency button.
• The IO did not question the Prosecutrix on 26.11.2013 whilst recording her 161 statement about what the Accused did on the lift panel with his hands during the alleged incident on 07.11.2013 and how the Accused pressed the lift buttons of the lift and in what manner the Accused pressed the lift buttons.
• The I.O. has not conducted any investigation to verify and ask the Prosecutrix the very basic question of where inside the lift the Prosecutrix was standing during the sexual assault on 7.11.2013 and 8.11.2013, during the scene of offence panchanama.
• The I.O. has not conducted any investigation to verify whether the lights from inside the guest lifts of Block 7 on ground floor reflect on the floor outside the lift when the lift doors open.
• The I.O. did not view the CCTV footage of the left guest lifts of the ground floor of Block 7 pertaining to the 2 minutes of the alleged incident of 7.11.2013 and did not investigate and verify how many times the light of the left guest lift blinks on the opposite wall, i.e., the wall of the right lift.
• The I.O. did not show the CCTV footage to any lift technicians to understand and investigate and find out how many times the guest lifts of Block 7 opened on the ground floor during the 2 minutes of the alleged incident of 7.11.2013.
• The I.O. did not show the opening and closing of the right side guest lift of Block 7 on the ground floor during the 2 minutes of the incident of 7.11.2013 to the Prosecutrix and sought no explanation from her about her disproved claim that the lift doors did not open, which wholly turns the case since it renders the plausibility of an attack on the prosecutrix absolutely null.
• The IO has not conducted any investigation to calculate the time taken by the lift to reach from the ground floor to the second floor during the scene of offence panchanama. The IO did not find out during the investigation how long the lift was on the ground floor of Block 7 during the alleged incident of 7.11.2013 after the Prosecutrix and the Accused had entered the lift.
• The IO has not conducted any investigation to check the lift control room in Grand Hyatt and record the statements of the personnel of Grand Hyatt who monitor the real-time functioning of all the lifts of Block 7 from the lift control room and further no investigation was done relating to the lift control panel on which there are indictors to indicate the direction in which all the lifts of Grand Hyatt are moving at any moment, as well as to indicate whenever the emergency button is pressed. This, despite the fact that if the lift had been stalled by the Accused as per the claim of the Prosecutrix, this would immediately have reflected on the panels in the lift control room, which as per evidence on record is manned by two people 24/7.
• The I.O. verified the operation and functioning of the emergency red stop button inside the lift for the first time in November 2020 for 7 years after the registration of the First Information Report on the pretext of finding out whether Grand Hyatt had re-opened in Covid times claiming that the prosecution contemplated filing application under section 310 of Cr.P.C. and conducted further investigation, without taking permission of the Court, to fill in the lacunae in the prosecution case. It is pertinent to note that the prosecution never filed the application under section 310 Cr.P.C.
• The I.O. did not take any lift technician to any other establishments where Mitsubishi lifts are installed in order to receive a demonstration of the functioning of the emergency red stop button.
• The IO did not compare the statements made by the Prosecutrix in her testimony with the CCTV footage of the guest lifts of Block 7 of 7.11.2013 and 8.11.2013 at the time that the IO drafted the complaint.