Chaff and Grain: Guilt, Innocence and the Dilemmas of Justice

By Vivek Sood

A PIONEERING WORK ON A highly topical subject, Chaff and Grain: Guilt, Innocence and the Dilemmas of Justice by Vivek Sood goes into the malfunctions of the criminal justice system in India. The Supreme Court has gone to the extent of saying that in our criminal justice system the judge presiding over a trial decides on the basis of his sixth sense as to what must have happened during the incident and then lays his trust in God and good luck for coming to the 'right' conclusion.

In this hard-hitting take on the criminal justice process, Sood delves into how the innocent end up as undertrials, the misuse of the power of arrest by the police, unjustified denial of bail, manipulated investigations and fake encounters. Apart from making out a case for imperative reforms, in another important suggestion, Sood has redefined 'hate speech' and 'sedition', cases relating to which have been in the news. These are offences that legislators and policymakers can look at afresh, he says.

The book also examines the investigations into some of the most controversial cases to hit the headlines in the past two decades-Aarushi Talwar, Jessica Lal, Priyadarshini Mattoo, the Telgi fake stamp paper scam and the Nirbhaya rape-making it a riveting read.

• Language: English
• Publisher: Bloomsbury Publishing
• Release date: Feb 18, 2023
• ISBN: 9789354356810

Book preview

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Abuse of Criminal Law: Innocent Accused and Criminal Victims of Crimes

Every coin has two sides and so is the case with the criminal justice system. On the one side, crimes are committed for which the accused are prosecuted. On the other side is the abuse of criminal laws by unscrupulous elements who feign as the ‘victims’ of crime. The area of focus of this chapter is on these cases and finding who is the victim and who is the criminal.

Laws are enacted to eliminate social problems, benefit society at large and regulate business and other human activities. Criminal laws are made to punish conduct that the legislature seeks to prevent. This is done by defining offences and stipulating punishments. Criminal law is set in motion through a criminal complaint to the police, which then enables prosecuting and punishing the accused. Moving the criminal justice system is, thus, a critical step towards setting the police machinery into action. A criminal complaint of an offence classified as cognisable constitutes the first information of an alleged crime that the police register as an FIR. Upon the registration of an FIR, the police then initiate the investigation in the case, which includes arrest and interrogation of the accused, inspecting the crime scene, recording the statements of witnesses, finding weapon (if any), seizing documents, getting forensic analysis done, medical examination and myriad other steps depending upon the nature and requirements of the case.

A criminal complaint is, thus, the first and significant step towards prosecuting the accused and keeping in check the law and order in society. However, when criminal law is misused, it not only harms the innocents but also disturbs social harmony. False complaints become a major social malady and unfortunately, the Indian criminal justice system is deluged with false criminal cases that give the police and other agencies the scope and opportunity to harass citizens, indulge in corruption, put innocents behind bars and, thus, ruin lives. Criminal laws are rampantly misused in India and that too with impunity. Dowry harassment laws are frequently used fraudulently to settle failed matrimonial relationships. False criminal cases are concocted in contractual and money disputes, false rape and molestation cases are filed and registered as extortionist tactics or to seek revenge for a failed relationship or to settle property matters, and false accusations are levelled under the schedule caste atrocities law to settle personal scores. The list of categories is endless as I have seen rampant misuse of criminal law in my three decades of life as a lawyer and senior counsel. I have come across the most bizarre criminal cases, and regrettably, these are not a handful but many. There have been instances of corporate employment disputes being made into cases of molestation, landlord-tenant disputes being turned into rape cases, false allegations of dowry harassment against the in-laws living a thousand miles away and monetary issues with a construction contractor being converted into allegations of atrocities covered in the law protecting scheduled castes and tribes. The list is very long.

In this chapter, I have selected three categories of false cases that frequently enter our criminal justice system. These are patently false cases of rape, cases misusing the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 (SC-ST Act), and instances where business, property, money and other civil disputes are made into false cases of cheating by giving them a criminal colour.

RAPE: SETTLING SCORES

Kapil Beri

Kapil Beri would never have imagined that he would die as a convicted man on false allegations by his own daughter. He went to jail and even suffered a conviction by the sessions court. Finally, the Delhi high court acquitted him and removed the blot of conviction, but only after his death on the plea of his widow.¹

Kapil Beri was an electrician in the air force at Udhampur (Jammu and Kashmir) in 1991. Deputed in the field area at Jindrah, he would hardly get leave to visit his home at Udhampur. Later he was transferred to Delhi Cantonment.

On 13 January 1996, when he was posted in Delhi Cantonment, one of his daughters lodged a complaint with the police that her father had been raping her since 1991 till the previous day. She alleged that the sexual assaults started in 1991 in Udhampur when her mother had gone to Indore as her maternal uncle had passed away. One night while she, her sister and her younger brother were sleeping in a room, her father woke her up around midnight and made her accompany him to his room. In the room, he made her lie down with him on the double bed and removed her lower garments. Next, she said, he raped her. She alleged that thereafter whenever he would find her alone, he would regularly rape her. According to her, she had become pregnant and her father had learnt about this. He brought some medicine that he made her take and subsequently enquired repeatedly if her menstruation cycle had resumed. She alleged that on 18 December 1995, her father called her to his office and made her write on a blank sheet, copying from a prepared text written in a diary, that she had been raped by Bhushan and as a result, she did not want to live any longer. She alleged that on 19 December, her father again asked her about her menstruation cycle, and the next day told her to commit suicide if she wanted to protect her self-respect. She stated that she had assured her father that she would not return home the next day and instead would commit suicide. On 21 December, she went to the sewing centre where she worked and told the in charge about the incident. Then she was taken to a place called Mother Teresa Home and from there she was brought to the police station on 13 January 1996.

Kapil Beri went to the police station and explained that the allegations were false and concocted. His wife and other children supported him. However, he was arrested and convicted by the trial court.

The matter was then taken up by the Delhi high court. However, during the pendency of the appeal, Kapil Beri passed away but his widow continued the fight.

The high court found that the girl was a minor as she was born on 9 March 1979. On the date when she complained to the police, she had been pregnant for about three months. Her pregnancy was confirmed in the Medico-Legal (MCL) Report. As per her testimony, she delivered a female child on 1 August 1996 thereby implying that she would have conceived sometime at the end of October 1995. The high court also observed from the evidence that the girl was not academically inclined and had discontinued formal schooling. She had joined a vocational centre run by an NGO at Raj Nagar, Palam area in Delhi where she was learning sewing.

The high court found that the father in his defence had said that his daughter was a school dropout as she was not interested in studies and, hence, had been sent to the sewing centre. The father often received complaints about his daughter’s wayward ways. A boy named Bhushan had been found teasing the girl whereupon the brother of the complainant had thrashed him. This matter had reached the police station where both sides had patched up and no case had been registered. Later, the girl had disappeared from home and on the suspicion that Bhushan had kidnapped her, the father had lodged an FIR at the police station. On the charges of rape, the father had pleaded innocence and asked for a DNA test to be conducted to confirm that he was not the father of the child delivered by his daughter. It was also proven that during his posting at Udhampur, Kapil Beri had been on duty in the field area and never allowed leaves. This was found to be a proven alibi supporting his defence. The high court found the case to be false from its inception. It was highly unnatural that the girl never complained that she had been raped in the five years and also never suffered any injuries due to the alleged ‘rape’ by the father. Her wayward ways and promiscuous behaviour were apparent from her conduct and evidence on record. The police had blindly believed the false complaint by the girl and neither investigated the case fairly nor professionally. Why didn’t the police investigate the FIR regarding the disappearance of the girl? Why wasn’t a DNA test conducted to find out whether Kapil Beri was the father of the infant?

Though the high court acquitted Kapil Beri from ‘rape’ charges, he had died by then.

I have encountered similar false charges of rape being lodged by daughters against their fathers. In many cases, it is purported by the mother because of a matrimonial discord with the accused. Such false complaints will always be lodged but a deft investigation by the police is the answer to the problem rather than accepting the complainant’s story blindly and becoming a mute spectator of innocents being falsely implicated. It should be made clear that genuine cases of rape exist too where such heinous crimes are committed by close relatives including fathers. But the police need to separate the chaff and grain at the time of the investigation. The courts only come into the scene later when the investigation has concluded.

Atender Yadav

Atender Yadav is another victim of false implication of rape charges by his daughter and remained in jail for several years before being let off by the Delhi high court.² It was a classic case where an 11-year-old girl was used as a pawn by her mother to wreak vengeance upon her ex-husband.

On 30 May 2007, the girl, accompanied by her mother, complained to the police that her father had raped her between November 2006 and December 2006. When she filed the complaint to the police, she was 11 years old. A case of rape was registered against the father and a charge sheet was filed. The sessions court found the father guilty and sentenced him to life imprisonment. He then appealed to the Delhi high court.

The high court found it to be a case of false implication by the daughter at the instance of her mother, who wanted to settle scores with Atender Yadav. The high court saw through the glaring falsities in the case set up to frame him.

Atender Yadav had married Geeta on 29 July 1995 and they had two children. The daughter was born on 23 July 1996 and the son on 17 September 1999. The husband and wife did not enjoy matrimonial bliss and would often fight. Their marital discord resulted in both of them filing several cases against each other. As a result, bitter litigation existed between Atender and his wife. Eventually, their marriage was dissolved through a decree of divorce by mutual consent on 3 February 2007. Immediately thereafter on 14 February 2007, Atender Yadav remarried. As part of the divorce settlement, he got custody of the children.

As per the prosecution, on 29 May 2007, the children were staying with their grandparents where the mother came to meet them. In her statement to the police, Geeta said that the minor daughter in the presence of her in-laws, that is, the grandparents of the minor girl, told her about the father raping her in November and December 2006. She added that the daughter further told her that the father had threatened the child not to talk about it to anyone or she would be killed. On hearing this, Geeta said she and the girl immediately reported the rape to the police.

The high court examined the case in light of the bitter litigation between Geeta and Atender Yadav. The court found the case full of false statements, contradictions, exaggerations, discrepancies and fabrications. It was impossible that the girl did not suffer any injuries when she was raped. In her testimony, the child had also lied that she could go to school only for a few days due to the pain resulting from the rape. This was found contrary to the school records as it showed that the child had regular attendance. The child’s allegation of anal rape was found to be wild and false as it was impossible that she never suffered any injuries. Her medical examination also did not support the allegation of repeated rape. Her academic results showed improvements, which would not have been the case if she had been raped by her father. The child’s versions to the police, the magistrate and the court were found to be different and contradictory. The high court found that the child had complained and testified against her father because of her mother.

The high court also found the six months’ gap, between November–December 2006 when she was allegedly raped and 30 May 2007 when the case was lodged with the police, was too long and unexplained especially when the child had ample opportunity to complain to many people including her mother.

Geeta’s testimony also demonstrated that her ex-husband had been falsely implicated out of vengeance and to seek custody of the children, which she had given up earlier. Atender Yadav had remarried and this was also a reason for the false implication apart from the bitter litigation between the parties. Geeta’s testimony had many contradictions and falsities. She was found to have contradicted herself when she came to know of the alleged rape. She made false statements that she had not been permitted to meet her daughter. Geeta’s testimony that the girl had told her of the father performing anal sex on her was found totally false and was an improvement over her previous statements to the police and the magistrate.

The high court said in its judgement that false cases of rape are not uncommon, and in some cases, parents do persuade gullible or obedient daughters to make false charges of rape either to take revenge or to wreak vengeance on the accused.

The high court concluded:³

In this case the mother of the Prosecutrix, driven by the feeling of revenge, has gone to the extent of falsely implicating her husband for the rape of their daughter, being completely ignorant of the shame she has brought to her entire family including herself, her daughter and her husband by her such derogatory, disgraceful, intolerable and unacceptable conduct. At the first blush of this case, it appeared to us that the father has really committed such a heinous offence with his own daughter, however a deep scrutiny of all the evidences taken together gives an altogether different picture.

Shaikh Sheru

Shaikh Sheru languished in jail for over three years before being declared innocent by the Bombay high court.⁴ He had been charged and convicted for raping his 12-year-old daughter. It was alleged that two months before the FIR was lodged, he had raped his daughter and thereafter again attempted to have sexual intercourse with her the previous day, that is, 19 January, which is when the child ran away and informed her mother. He was arrested and charged with rape. In his defence, Shaikh Sheru said that the daughter had been used as a tool to falsely implicate him and it was a result of matrimonial discord between him and his wife.

On his conviction by the sessions court, Shaikh Sheru appealed to the Bombay high court. The high court found from the evidence recorded in the sessions court that the mother, Shamim Begum, had admitted to the falsity of the case set up in the FIR. The court was shocked to find that a small girl had been used as a lever against her father. It observed that the family lived in a small hut that could barely accommodate five people. The couple also had two sons living with them. It was next to impossible that the minor girl had been raped in the small hut and that none of the other family members came to know about the incident. Further, no injuries were found on the private parts of the minor girl. The neighbours had also deposed about the frequent quarrels between the couple and threats had been extended to the girl’s father that he would be falsely implicated in a rape case based on accusations from the daughter. It was impossible that none of the neighbours, clustered around this hut, had woken up to the yelling of the minor girl. If a minor girl is sexually abused by an adult, the victim would suffer profuse bleeding from her private parts and injuries including swelling and rupture of the hymen. None of these had occurred in the present case. The father was let off but by this time he had already spent three years in jail.

Puran Chand Kaushal and Onkar Nath Tiwari

Puran Chand Kaushal and Onkar Nath Tiwari were made to languish in jail on allegations of rape, which were found to be patently false. The Delhi high court in its judgement stated that the allegations of rape in some cases are so illogical and blatant lies that society will have to ponder as to what should be the moral punishment to the women indulging in making such false allegations.⁵

As per the prosecution on 16 June 2007, the Police Control Room (PCR) received three calls within a span of about 12 minutes. The PCR van reached the spot where the complainant was found and she alleged that her neighbour Onkar Nath Tiwari accompanied by two boys had beaten her and then ran away. The PCR van took her for a medical examination. An FIR was registered on 18 June 2007 on her statement wherein she stated that on 16 June her children had gone to their grandmother’s house and her husband was away in Gurgaon. At about 1:30 p.m. when she was alone at home both Puran Chand Kaushal and Onkar Nath Tiwari, who were her neighbours, entered her house and bolted the door from inside. They pushed her to the ground and tore her clothes. While Puran Chand Kaushal caught hold of her hands, Onkar Nath Tiwari raped her. In her statement to the magistrate during the investigation, the complainant embellished the story by giving details as to how she was raped and also claimed that both men attempted to commit sodomy on her. In her testimony before the sessions court, the complainant made further improvements in the story.

Puran Chand Kaushal and Onkar Nath Tiwari defended saying they had been falsely implicated by the complainant and her husband as they had objected to their illegal land-grabbing. The complainant and her husband had encroached upon the public passage where they lived. As a result, people in the area were aggrieved as their right of way had been blocked. Puran Chand Kaushal and Onkar Nath Tiwari had taken up this issue, which had become the motive for the complainant to implicate them in a false rape case.

When Puran Chand Kaushal was arrested, his family members complained of false implications to the police commissioner of Delhi who then ordered a vigilance inquiry against the police officials. The investigation officer was suspended. The inquiry report revealed that a false case had been registered against Puran Chand Kaushal and Onkar Nath Tiwari by the complainant.

Onkar Nath Tiwari informed the court that on the fateful day, he and Puran Chand Kaushal had been in the police station since 1:10 p.m. He had gone to the police station to find out about the status of his complaint against the husband of the complainant, which proved his plea of alibi. Puran Chand Kaushal had gone to the police station to lodge a complaint under the SC-ST Act against the complainant’s husband. Asha Rani, the assistant sub-inspector, was the duty officer at the police station and the one to inform the complainant about the accused being present at the police station. The duty officer delayed registering the complaint of the accused and in the meantime the complainant called the PCR at 2:05 p.m., 2:14 p.m. and 2:19 p.m. In the calls, the complainant named only Onkar Nath Tiwari as he had by then left the police station and did not name Puran Chand Kaushal as he was still present in the police station, a fact that she was aware of. Onkar Nath Tiwari informed that when he was the general secretary of Naroda Welfare Association in 1997, the complainant and her husband had encroached upon public land while raising construction. He made a complaint as a result of which the complainant and her husband bore a grudge against him. In 2006, the complainant had again encroached on public land from either side of the road with a gate to encompass the land into her school. He and Puran Chand Kaushal had played an active role in opposing the said construction because they were aggrieved by the encroachment as they had also jointly purchased land adjoining her plot. On 28 May 2007 when Puran Chand Kaushal tried to erect a boundary wall, the complainant and her husband along with their associate had physically assaulted him. Puran Chand Kaushal had then lodged a complaint with the police as a result of which the complainant’s husband was arrested and his bail rejected. When her husband was released from jail on 2 June 2007, he had threatened to falsely implicate Onkar Nath Tiwari. Anticipating trouble and apprehending false implications, Onkar Nath Tiwari had lodged a complaint with the police against the complainant and her husband. This was in nutshell the defence version.

The criminal trial ended in the acquittal of both Puran Chand Kaushal and Onkar Nath Tiwari. The complainant moved the high court in an appeal against the acquittal. The high court found the complaint lodged by the lady to be patently false. It observed that it was not possible for the complainant to make repeated calls to the PCR while she was being raped. Her account was that initially the accused had misbehaved with her and she had lodged a complaint in this regard. When Onkar Nath Tiwari and Puran Chand Kaushal molested her, she again lodged a report, and thereafter she was raped. As per the information given to the control room at 2:19 p.m., three persons had misbehaved with her. Contradicting her statement, she later alleged that Onkar Nath Tiwari had raped her while Puran Chand held her down. The court observed that it was humanly impossible for the complainant to telephone the PCR while two persons were misbehaving, molesting or one of them was raping her while the other held her so that she could not defend herself. If she had tried to make a telephone call, the culprit would have snatched the telephone (in this case a landline apparatus) from her and then continued with the sexual assault. Her statement that while she made these three calls to the control room, she was continuously being subjected to misbehaviour, molestation and rape defied all logic and human conduct. Moreover, if any act of rape had been committed by Onkar Nath Tiwari, she would have definitely mentioned it in her calls to the PCR and about Puran Chand Kaushal being involved in it. However, she had complained only about Onkar Nath Tiwari and others physically assaulting her and running away. The high court found numerous other falsities and contradictions in her evidence apart from evasive answers.

It also noted that had rape taken place, as said by the complainant, it was impossible that she suffered no injuries, external or internal. She was 38 years old and weighed about 100 kg, and would have put up immense resistance to the alleged rape. Also, as per her allegations, after raping her, Onkar Nath Tiwari attempted to sodomise her. If that had been the case, then she must have received injuries while she was thrown on the ground and she offered resistance. The absence of injuries belied her case further.

Additionally, as per her version stated to the police, there was penetration and ejaculation. She was medically examined immediately after the incident but no semen stains were found either on the vaginal swab or her clothes. The absence of semen further rendered her story false.

Puran Chand Kaushal was 62 years old and had happily retired from his government job when he was falsely implicated. He could have never imagined the ordeal that was in store for him after retirement. Onkar Nath Tiwari was in his mid-50s and working with the customs department when this incident occurred. He spent over two years in jail before being acquitted.

Maheshwar Tigga

Maheshwar Tigga was sentenced to seven years imprisonment on charges of rape after four years of his consensual love affair with the complainant ended. On 13 April 1999, the complainant alleged in the FIR that four years back, Maheshwar Tigga had outraged her modesty at knifepoint. Since then, he had been promising to marry her and on that pretext continued to have physical relations with her. She had lived in his house for 15 days during which he had physical relations with her. Five days prior to the lodging of the FIR, he again had sexual intercourse with her. It was alleged that Maheshwar Tigga had cheated the complainant as he was solemnising his marriage with another girl on 20 April 1999.

The trial court convicted Maheshwar Tigga and sentenced him to seven years imprisonment. It held that at the said period, the victim was 14 years old and even consensual sex