This is Part III of a series which examines the Tejpal judgment from an evidence law perspective.
Parts I and II can be found here and here.

The closed-circuit television, aka the CCTV, is a pitiable surveillance device. It is doomed to bear witness to monotonous humdrum, till a sudden mishap breaks the tedium by sheer happenstance. Even then, it often misses out on all the fun, as Ocean’s 11 have repeatedly demonstrated. In stark contrast, the CCTV monitoring the first floor of Block 7 of the Grand Hyatt Hotel in Goa, has surpassed its fair share of excitement, after becoming instrumental in securing an acquittal for Tarun Tejpal, the former editor of Tehelka magazine.

To recap, a young journalist accused Tejpal of raping her in the lift of Block 7 of the Grand Hyatt on the night of November 7, 2013. This Block’s three floors boast of two elevators and several indolent guests who never take the stairs. There is CCTV footage of the lobby, recording the entry of Tejpal and the the young journalist into a lift, and of the second floor, showing them exiting approximately two minutes later. Since it takes far less time to travel two floors in an elevator than to cook instant noodles, this begs the question of what occurred during those crucial two minutes.

Before we get ahead of ourselves, I must point out that there was no CCTV inside the lift, and consequently, the alleged incident is not captured on tape. The video of the lobby and corridors can be used to glean the demeanour of Tejpal and the young lady, but not whether any crime was committed. The trial court discusses various discrepancies between the testimony of the prosecutrix and the CCTV footage. Without viewing either, it is difficult to assess whether these discrepancies are material enough to disbelieve her entirely or are the fallout of not being blessed with a photographic memory. That said, Tejpal had, by shouting from the rooftops that the CCTV footage would exonerate him, made it indispensable to his defence. Ironically, he was ultimately acquitted, not because the footage proved his innocence, but because it had apparently disappeared.

Tejpal sought, and received, a copy of the footage

There is a chequered past involving Tejpal and the CCTV footage. The edited version was handed over to Tejpal in February 2014. Disgruntled, he sought the unedited footage of all three floors of Block 7 from November 7-29, 2013 (the date of the alleged incident to the date of his arrest). On May 3, 2014, the trial court granted his request. His quest for the Holy Grail eventually led him to the hallowed halls of the Supreme Court which, on January 6, 2015, directed that he be provided with “all relevant documents including unedited CCTV footage etc (as contained in the order dated 03.05.2014) within three weeks”. Subsequently, in an order dated October 12, 2015, the Supreme Court notes that “all the documents have been supplied” to Tejpal (barring two, which are not relevant for the purpose of this article). Since there was no further protest or entreaty by Tejpal over the CCTV footage thereafter, it would be safe to presume that he had received whatever he had sought, including the recording of the first floor of Block 7.

Before the trial, Tejpal heavily relied on the CCTV footage of the ground and second floors – in his arguments for bail and then discharge – to impeach the veracity of the complainant's chronicle. However,  during the trial, Tejpal for the first time insisted that “he and the prosecutrix were not in the lift during the relevant two minutes of the incident of 7/11/2013 but had exited the lift on the first floor”.

A new argument, six years on

Despite having received the entire footage under Supreme Court orders about six years ago, such a defence had been conspicuously absent from his repertoire thus far. Neither his arguments for bail or discharge made any such claim. Pertinently, Tejpal made this statement, not under oath, but under Section 313 of the Code of Criminal Procedure, after the prosecution evidence was closed. Since an accused has the constitutional right to remain silent under Article 20(3), he cannot be compelled to testify. Section 313 thus offers the accused a valuable opportunity to explain any material appearing against him, without suffering the consequences of being a witness. He cannot be cross-examined or punished for giving false answers, and is under no obligation to be truthful. In other words, he is given free rein to state his version of the events, i.e. test his skills as a raconteur. Any account given under Section 313 may therefore be “considered” by the court, but does not constitute “evidence”. In this context, one must applaud the judge’s unwavering trust in Tejpal while holding that

“He has given an absolute possible and probable account of their absence in the lift during the relevant 2 minutes of the alleged incident” [Para 264].

The judge acknowledges that “to conclusively prove that the accused and the prosecutrix mistakenly exited the guest lifts on the first floor… the CCTV footage of the first floor of the guest lifts of 7/11/13 was most vital for the accused” [Para 265]. She recounts a press conference given by Tejpal, close on the heels of the FIR, urging the police to “obtain all CCTV footage available so that the truth surfaces” [Para 267]. Having found the first floor CCTV camera to be “in perfect working condition”, she reasons that its footage existed and was viewed by the police during investigation [Paras 269, 273]. The CFSL Forensic Analyst [PW 14] testifies that the DVRs examined by him contained data of the ground, first and second floors [Para 286]. And this is where the plot thickens, for the elusive first floor footage has vanished into thin air.

Judge's leaps of logic

In an astonishing display of deductive skill, the judge infers that the investigating officer “tampered with and destroyed the CCTV footage of the 1st floor guest lifts of block 7 since it would conclusively corroborate the defence of the accused” [Para 284]. Those particular about logic may wonder how CCTV footage which was yet to manifest itself in evidence can “corroborate” Tejpal’s explanation, which was also not “evidence”. Or how any of this proves that a public servant was not merely negligent, but committed a serious transgression by obliterating material evidence. Much like religion, the solution is to be found in blind faith, rather than coherent reason.

The miraculous escape of this footage from the shackles of trial court records is the stuff of Houdini’s dreams. The cornered prosecution argued that the DVR died a natural death for want of proper storage facilities in the court property room. The judge baulked at this attempt to shift the blame on to the court and hypothesised that “either the CCTV footage has been destroyed by the Investigating Officer as it corroborates the defence of the accused or that the CCTV footage is in the DVR and that it confirms the defence of the accused” [Paras 286-287]. She would brook no other possibility, unless that also happened to support the defence of the accused.

While the prosecution must prove its case against Tejpal beyond reasonable doubt, the burden of proving any particular fact which is part of his defence rests on him. This is evident from illustration (b) to Section 103 of the Evidence Act which postulates that when “B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it”. Tejpal did not deny that he entered the elevator but asserted that he was elsewhere in the first floor corridor, at the relevant time. Ordinarily, he would have had to establish this. This, being no ordinary trial, the tables were firmly turned on the prosecution for failing to disprove Tejpal’s defence by producing the apposite CCTV footage [Para 286].

In addition, when a fact is especially within the knowledge of a person, Section 106 of the Evidence Act requires that person to prove the fact. The complainant vouched for the fact that they were in the elevator the entire time. The police officers could not recollect anything of the first floor footage during cross-examination [Paras 272, 274]. Perhaps it was too dull to commit to memory for seven long years. Tejpal was the only one professing special knowledge of being in the corridor. Notwithstanding this, the onus of proof was not placed on him since “Section 106… would apply when the facts are exclusively to the knowledge of the accused and it is impossible for the prosecution to prove it” [Para 288]. This imposes an exceptionally high burden on the prosecution, which must not only prove its own case, but also lead contrary evidence to establish the accused’s defence.

A 'Brahmastra' never used

Whatever may have happened to the court’s copy of this footage, it is inconceivable that, after knocking on the doors of the apex court, Tejpal would leave without obtaining a tape so pivotal to his absolution. If it did vindicate Tejpal, it is bizarre that this “Brahmastra” was never utilised by him. There is not a whisper of this purportedly exculpatory material in the Supreme Court or high court orders pertaining to his bail and discharge. It is also curious that he took the long-winded route of facing trial and elaborately interrogating the complainant on her sexual history, private messages and nocturnal sojourns in the chief guest’s suite, when playing this video would have sufficed to discredit her. As such, it is probable that he had the first floor CCTV footage but it did not favour his defence. Luckily, instead of having an adverse inference drawn against him, he managed to draw a 'Get Out of Jail Free' card. The judge rejected the suggestion that he be asked to play the footage given to him with the argument that his clone copy “cannot have the footage when the DVR in the Court did not have it” [Para 287].

Leaving aside the CCTV, the only witnesses competent to testify in this regard were Tejpal and the prosecutrix, who contradicts his version. Hence, the proof of this pudding lay in Tejpal himself taking the stand, as envisaged under Section 315 of the CrPC, and passing the test of cross-examination. Since he chose not to do so, the sole evidence available qua the critical two minutes was the complainant’s deposition. Irrespective of whether she otherwise inspired confidence, Tejpal’s unverified clarifications under Section 313 could not have cast a shadow of doubt on her sworn testimony. Nor could it have spawned an affirmative finding of his presence in the corridor.

In sum, there is no evidence to prove that Tejpal was ambling along a corridor at the time of the alleged offence. What the first floor CCTV observed remains shrouded in mystery. Did it catch a glimpse of closed elevator doors, lending credence to the prosecutrix’s narrative? Did it spy her and Tejpal partaking in a late-night constitutional up and down the corridor? Is the missing footage simply a MacGuffin around which Tejpal’s defence is carefully constructed? On a scale of 1 to 10, how gullible would you say you are? The answers, dear readers, are blowing in the wind.

Bhabna Das is a Delhi-based lawyer and an Advocate-on-Record in the Supreme Court of India.

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