When a Father was ‘Falsely Implicated’ on the Charge of ‘Raping’ his ‘Own Daughter’

That the relation between a daughter and her father is sacrosanct needs no reiteration. Unfortunately, when the society reaches an extreme level of depravity, even this relation is not left from being wrongly used. It is very difficult to think that a mother, in order to satisfy her personal wants, can falsely implicate her ex-husband on the charge of raping ‘their’ own daughter. But, this was what happened in a case which has recently been decided by the Delhi High Court (“High Court”). In Atendar Yadav v. State Govt of NCT of Delhi [judgment dated 29^th October, 2013], the appellant, Atendar Yadav, had challenged the order of trial court in which he was convicted him for committing an offence under section 376(2)(f) of the Indian Penal Code, 1860 (“IPC”). The appellant was convicted by the trail court on charge of raping of no one else but his own daughter.

In May, 2007, it so happened that a complaint was filed against the appellant on the charge that he had raped his daughter, the Prosecutrix, in November and December 2006. The complaint was made after the mother of the Prosecutrix, Geeta Anand, became aware of the incident. While the story of the prosecution was appreciated by the trial court, the High Court was not very much convinced with the same. In fact, the High Court considered this to be a case of false implication. Before I go into the crux of the case, let me highlight its factual background.

Due to poor marital relations between them, Geeta Anand and the appellant had agreed to divorce through mutual consent in February 2007. While the custody of children (Prosecutrix and her younger brother) was given to the appellant, Geeta was granted visitation rights. Prior to the divorce, both Geeta Anand and the appellant had filed several cases against each other (Maintenance, Kidnapping, Domestic Violence etc.). Immediately after the divorce, appellant married another woman. When Geeta Anand became aware of this fact, she was baffled.  She was also not satisfied when, under the settlement, she had agreed to withdraw the all the cases in return of Rs. 1 Lac.

According to Geeta Anand, she was informed by the Prosecutrix of the incident when she had gone to meet the latter at the house of appellant’s parents. Highlighting the pervert behaviour of the appellant, she opined as to how he used to watch blue movies at home. In her testimony before the court, Geeta Anand stated that she became aware of the menstruation period of the Prosecutrix and, according to her, the same started after the rape. On knowing this, she was perplexed as by that time her daughter was only 9 years old. However, in her cross-examination, she had admitted to have told the appellant to take care of the Prosecutrix when she is on periods in September 2006. This was only one of the contradictory evidences given by her.

Both the father and the mother of the appellant had testified against him. The relation between father and son were not cordial. The grandfather of the appellant, instead of bequeathing an important property in favour of appellant’s father, had rather willed the same in favour of the appellant. Supporting that father had been involved in the present conspiracy because of this property dispute, the aunt of the appellant, in her testimony, had acknowledged his ill intention towards the appellant.  Interestingly, both the parents later turned hostile witnesses. The parents were not even in favour of appellant marrying Geeta Anand. Because of this, they were not allowed to live in the house of appellant’s parents.

According to the appellant, the case was an outcome of a planned conspiracy of his ex-wife (Geeta Anand) supported by his parents. On one hand, where Geeta Anand was not satisfied with the divorce and its after-events, the father of the appellant, on the other hand, was baffled of his father’s decision to bequeath a property in favour of the appellant. Having discussed the important background information let me discuss the decision of the High Court.

At the outset, the court dealt with the evidence provided by the Prosecutrix. Emphasising that the court should see whether the child is swayed away, the High Court was of the opinion that the testimonies of the Prosecutrix were given under the influence of her mother, Geeta Anand. In reaching this conclusion, not only did the High Court take into consideration the surrounding circumstances but also it considered the discrepancies in the statements of the Prosecutrix.  

Contradictory testimonies of the Prosecutrix were rejected by the High Court. Prosecutrix’s first statement, statement under section 164 of CrPC and statement before the court produced different versions of the incident.  While in her first statement, she had nowhere mentioned that her father had committed the rape during the night when her grandparents had come, in other two statements, though she had mentioned that her father had committed the rape during the night, but each of them produced versions. She had not supported the statements of Geeta Anand that she menstruation period were started only when the rape was committed. Similar to this were some other contradictions in her testimonies.

No injury was found in the private part of the Prosecutrix. According to the court, there was every likelihood of some injury in the private part of the Prosecutrix, especially when the act had been committed by a grown-up man on a minor girl.   The hymen, it was held, could have been torn because of several reasons. Since the Prosecutrix had started cycling and swimming when she was around 4-5 years old, the possibility of her hymen being torn during these activities could not be ruled out.

So far as the evidence pertaining to ‘two-finger test’ was concerned, the reference was made to the decision of Supreme Court in Lilu Rajesh and Anr v. State of Haryana, AIR 2013 SC 1784.  In Lilu Rajesh (supra), it was held that admission of two fingers and hymen rupture does not give a clear indication that the Prosecutrix was habitual to sexual intercourse. However, based on other factors, the court declined to agree with the finding that the appellant had committed the rape. [See also: Justice Verma Committee Report]

There were material contradictions even in the testimony of the mother, Geeta Anand. Apart from the contradictory statement pertaining to menstruation period, there were contradictions in the testimony that where she had stated that the appellant did not allow her to meet the children. In fact, Geeta Anand had met the Prosecutrix a number of times. Similarly, there were other testimonies where contradictions had been found by the court.

Regarding the evidence given by the brother of the accused, the same did not find support from the deposition of Prosecutrix. In addition, the High Court pointed out that the trail court had not given weightage to the unrebutted testimonies of Mr. Dharampal DW-12, DW-13 (Uncle), DW-15 (Bua) and the Appellant/Accused. According to Mr. Dharamal, husband of friend of Geeta Anand, the latter had gone to the extent of threatening him he had visited her parental house to demand his money back. In his testimony, DW-13 had stated that when he asked Geeta as to why she had falsely implicated the appellant, she had expressed her displeasure of getting nothing (child custody, money etc.). This displeasure on the part of Geeta Anand was further supported by DW-15 in her testimony.

In view of the above evidence, the High Court ultimately reached the conclusion that the present case was not genuine. Expressing displeasure on the manner in which the present case had been initiated, the High Court noted that although such cases of false implication in offences especially like rape are rare but they are not uncommon. It was observed by the court that ‘The common belief that no women will fabricate an offence such as rape owing to its social and mental ramification is undoubtedly flawed as is exemplified by the present case’. According to the court, cases such as this are diluting the authenticity of genuine cases.

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